[Senate Hearing 115-409]
[From the U.S. Government Publishing Office]
S. Hrg. 115-409
NOMINATION OF KEVIN K. McALEENAN
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FINANCE
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
ON THE
NOMINATION OF
KEVIN K. McALEENAN, TO BE COMMISSIONER, CUSTOMS AND BORDER PROTECTION,
DEPARTMENT OF HOMELAND SECURITY
__________
OCTOBER 24, 2017
__________
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Finance
__________
U.S. GOVERNMENT PUBLISHING OFFICE
33-483 PDF WASHINGTON : 2018
-----------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, gpo@custhelp.com.
COMMITTEE ON FINANCE
ORRIN G. HATCH, Utah, Chairman
CHUCK GRASSLEY, Iowa RON WYDEN, Oregon
MIKE CRAPO, Idaho DEBBIE STABENOW, Michigan
PAT ROBERTS, Kansas MARIA CANTWELL, Washington
MICHAEL B. ENZI, Wyoming BILL NELSON, Florida
JOHN CORNYN, Texas ROBERT MENENDEZ, New Jersey
JOHN THUNE, South Dakota THOMAS R. CARPER, Delaware
RICHARD BURR, North Carolina BENJAMIN L. CARDIN, Maryland
JOHNNY ISAKSON, Georgia SHERROD BROWN, Ohio
ROB PORTMAN, Ohio MICHAEL F. BENNET, Colorado
PATRICK J. TOOMEY, Pennsylvania ROBERT P. CASEY, Jr., Pennsylvania
DEAN HELLER, Nevada MARK R. WARNER, Virginia
TIM SCOTT, South Carolina CLAIRE McCASKILL, Missouri
BILL CASSIDY, Louisiana
A. Jay Khosla, Staff Director
Joshua Sheinkman, Democratic Staff Director
(ii)
C O N T E N T S
----------
OPENING STATEMENTS
Page
Hatch, Hon. Orrin G., a U.S. Senator from Utah, chairman,
Committee on Finance........................................... 1
Wyden, Hon. Ron, a U.S. Senator from Oregon...................... 2
CONGRESSIONAL WITNESS
Hirono, Hon. Mazie K., a U.S. Senator from Hawaii................ 4
ADMINISTRATION NOMINEE
McAleenan, Kevin K., nominated to be Commissioner, Customs and
Border Protection, Department of Homeland Security, Washington,
DC............................................................. 6
ALPHABETICAL LISTING AND APPENDIX MATERIAL
Hatch, Hon. Orrin G.:
Opening statement............................................ 1
Prepared statement........................................... 29
Hirono, Hon. Mazie K.:
Testimony.................................................... 4
Letter from David Y. Ige, Governor of Hawaii, to Senator
Hatch, October 13, 2017.................................... 30
McAleenan, Kevin K.:
Testimony.................................................... 6
Prepared statement........................................... 30
Biographical information..................................... 31
Responses to questions from committee members................ 41
Wyden, Hon. Ron:
Opening statement............................................ 2
Prepared statement........................................... 139
Communications
Harris, Norman W., III........................................... 141
Los Angeles Customs Brokers and Freight Forwarders Association,
Inc............................................................ 141
United States Council for International Business (USCIB)......... 142
(iii)
NOMINATION OF KEVIN K. McALEENAN,
TO BE COMMISSIONER,
CUSTOMS AND BORDER PROTECTION,.
DEPARTMENT OF HOMELAND SECURITY
----------
TUESDAY, OCTOBER 24, 2017
U.S. Senate,
Committee on Finance,
Washington, DC.
The hearing was convened, pursuant to notice, at 10:05
a.m., in room SD-215, Dirksen Senate Office Building, Hon.
Orrin G. Hatch (chairman of the committee) presiding.
Present: Senators Grassley, Enzi, Cornyn, Thune, Isakson,
Portman, Toomey, Heller, Scott, Cassidy, Wyden, Stabenow,
Cantwell, Nelson, Carper, Brown, Bennet, Casey, and Warner.
Also present: Republican Staff: Jay Khosla, Staff Director;
Chris Armstrong, Deputy Chief Oversight Counsel; Nicholas
Wyatt, Tax and Nominations Professional Staff Member; Shane
Warren, Chief International Trade Counsel; Queena Fan,
Detailee; and Andrew Rollo, Detailee. Democratic Staff: Joshua
Sheinkman, Staff Director; Michael Evans, General Counsel; Ian
Nicholson, Investigator; Greta Peisch, International Trade
Counsel; and Jayme White, Chief Advisor for International
Competitiveness and Innovation.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
UTAH, CHAIRMAN, COMMITTEE ON FINANCE
The Chairman. The committee will come to order. I would
like to welcome everyone here this morning. Today we are here
to accomplish two important matters.
First, we will have a hearing to consider the nomination of
Kevin McAleenan to serve as Commissioner of U.S. Customs and
Border Protection or CBP.
In addition, if a quorum is present at any point during the
hearing, we will move to executive session to consider and
hopefully report three pending trade-related nominations. If we
do not get a quorum, I intend to hold votes off the floor so we
can move these nominations in short order. With that, I will
turn to Mr. McAleenan's nomination.
In 2015, this committee successfully drafted and reported
the Trade Facilitation and Trade Enforcement Act, which was
later signed into law by President Obama. Thanks to that
effort, Mr. McAleenan, if confirmed, will be the first
Commissioner to oversee CBP as a fully authorized agency.
Mr. McAleenan, we want to welcome you to the Finance
Committee. We appreciate your willingness to serve in this
important position.
CBP is the United States' unified border agency, charged
with facilitating legitimate trade and travel, while enforcing
U.S. trade laws and securing our borders.
There is a great deal of work to be done to improve
enforcement, but this mission should not come at the expense of
legitimate trade and travel. Striking the right balance is
vital to ensuring that the United States remains competitive
with the rest of the world. Balancing facilitation and security
will require CBP to work with stakeholders in and out of the
government.
As CBP seeks to strengthen and streamline trade
enforcement, including the protection of intellectual property
rights, the agency must not forget the important role that the
private sector can play. As an example, the private sector uses
information that CBP shares on counterfeits stopped at the
border to prevent future shipments from happening. The private
sector can also alert CBP to importers trying to circumvent our
anti-dumping and countervailing duty laws.
Coordination with other government agencies is also
important. For example, the international mail system is used
to traffic narcotics, counterfeits, and other products that
pose health and safety risks to Americans. Congress authorized
the Postal Service and CBP to collect electronic information on
postal shipments in 2002, and these agencies must use this
authority to close this security gap.
CBP must also ensure that its regulations clearly outline
the rights and responsibilities of stakeholders. For example,
the Trade Facilitation and Trade Enforcement Act of 2015, the
law I referred to earlier, improved enforcement against goods
manufactured with forced labor. CBP needs to update its
regulations to inform stakeholders about the type of
information necessary to make a proper allegation against an
import and to provide necessary guidance for stakeholders to
address such allegations.
Long story short, Mr. McAleenan has a tough job ahead of
him. However, I believe he is well-prepared and well-qualified
to serve in this capacity, and I look forward to discussing his
qualifications and his views here today.
With that, I am going to turn to Senator Wyden for his
opening remarks. I will remind my colleagues, once again, that
I intend to move to executive session at any point that a
quorum is present.
[The prepared statement of Chairman Hatch appears in the
appendix.]
The Chairman. Senator Wyden?
OPENING STATEMENT OF HON. RON WYDEN,
A U.S. SENATOR FROM OREGON
Senator Wyden. Thank you very much, Mr. Chairman. I also
want to note we are always glad to have Senator Hirono here.
Mr. McAleenan, you are running with the right crowd when you
have Senator Hirono in your corner.
The Chairman. I would say.
Senator Wyden. Mr. McAleenan, I have very much enjoyed our
past discussions. This is--as you know so well--an
exceptionally hard job, and I think you are up to it.
I also want to express my appreciation for working with me
to increase staffing at the port of Portland. This is a
particularly important time for the port because we are trying,
as you and I have discussed, to expand our role as a
destination for international flights, including a new flight
from Mexico that I hope is going to be finalized very soon.
Our challenge with adequate staffing illustrates the acute
need to hire more blue uniforms to enforce our trade laws and
to facilitate travel. I am anticipating that these are matters
that you are going to continue to focus on.
Mr. Chairman and colleagues, I am going to be brief this
morning. I just want to touch on two issues.
The first is trade enforcement. The fact is that the
administration has talked one tough game when it comes to
trade, but so far the record has not lived up to the talk.
If you are serious--genuinely serious--about getting trade
done right, the prerequisite to doing it is having tough
enforcement of the laws that are on the books today. And
Customs and Border Protection is on the frontline of that
effort.
Last year, the Trade Facilitation and Trade Enforcement Act
was signed into law. The Finance Committee wrote that
legislation because it was clear that trade enforcement and the
trade enforcement mission at this agency were getting short
shrift and that this was a substantial threat to red, white,
and blue jobs. The legislation was about making sure the agency
was fast enough and equipped to deal with the modern trade
cheats who are determined to undercut American workers by
evading our trade laws.
As you and I have talked about, Mr. McAleenan, this is
something we know a little bit about, because a number of years
ago we actually set up a dummy website to see how many trade
cheats there were out there. And we were just flooded as a
result of having, in effect, a sting operation to catch these
characters.
So a lot of good work has been put in place over the last
few months since the bill was signed, but it seems to me a lot
of those efforts have been stalled under this administration.
That is something that has to change in order to protect red,
white, and blue jobs in Oregon and across the country.
Trade enforcement is about constant vigilance and staying
ahead of the new tactics used by trade cheats to get around our
laws. That is a reality. That is what we have found:
consistently they are coming up with new ways to get around the
existing enforcement regimes. That is why we are going to
emphasize that with you this morning.
My concern is, it looks like trade enforcement is an
afterthought with this administration. The White House seems
more focused on throwing money at a border patrol army and
prototypes for a border wall that, hopefully, will never get
built.
Trade enforcement is going to fall by the wayside and jobs
disappear if all of this business-as-usual continues. I think
we learned during the trade debate, it does not matter what
kind of deals you propose or what laws you put on the books
unless you are really serious about enforcing them.
So you have a lot of work to do--from rooting out products
made with forced labor to preventing trade in illegally
harvested timber and wildlife to protecting the health and
safety of consumers who use imported products. I look forward
to working with you to make sure that the agency effectively
enforces our trade laws on those issues.
The other topic that I feel needs to be addressed--and I
will ask about it this morning--deals with searches at the
border. There has been an onslaught of reports this year about
Americans being stopped at the border and forced to unlock
their personal electronic devices for inspections that clearly
invade their personal privacy.
I have introduced bipartisan legislation called the
Protecting Data at the Border Act. The bill requires law
enforcement to get a warrant before searching a device at the
border, and it comes with strong protections to let Americans
know when and how they consent to having their devices
searched.
This ought to be a common-sense step. I feel particularly
strongly about this, Mr. McAleenan, because the court, the
Supreme Court, has already ruled that law enforcement needs a
warrant to search a phone after an arrest. Bottom line, the
constitutional rights of Americans do not disappear at the
border.
So I am going to look forward to addressing that question
with you. Again, Mr. McAleenan, thank you for joining the
committee.
We are glad to have Senator Hirono here. I think this
nominee, colleagues, is a strong individual. I look forward to
hearing his plans for the agency, if confirmed, and I plan to
support him.
Thank you.
The Chairman. Well, thank you, Senator.
[The prepared statement of Senator Wyden appears in the
appendix.]
The Chairman. Now we do have a quorum.
[Whereupon, at 10:15 a.m., the hearing was recessed,
reconvening at 10:25 a.m.]
The Chairman. Today we have the pleasure of hearing from
Mr. Kevin K. McAleenan, who has been nominated to serve as
Commissioner of the U.S. Customs and Border Protection. Mr.
McAleenan, we want to thank you for appearing here today.
Additionally, I would like to welcome our good friend,
Senator Hirono, who also hails from Hawaii. Senator Hirono will
be providing the introduction for Mr. McAleenan. Senator
Hirono, the floor is yours at this time.
STATEMENT OF HON. MAZIE K. HIRONO,
A U.S. SENATOR FROM HAWAII
Senator Hirono. Chairman Hatch, Ranking Member Wyden,
members of the committee, aloha. I am pleased to introduce to
you one of Hawaii's own, Kevin K.--and the ``K'' stands for
Kealoha, which is a good Hawaiian name--McAleenan, who has been
nominated by the President to serve as Commissioner of U.S.
Customs and Border Protection, CBP.
Kevin has a deep connection to Hawaii and to public
service. His father worked with at-risk youth at Stephenson
Middle School and taught summer courses at the University of
Hawaii.
Prior to government service, Mr. McAleenan practiced law in
California. He received his Juris Doctorate degree from the
University of Chicago Law School, and a Bachelor of Arts degree
from Amherst College.
He has served at the leadership level of CBP, first as
Deputy Commissioner, Chief Operating Officer, and now as the
Acting Commissioner for over 4 years combined, leading CBP
through a period of dynamic change, significant resource
constraints, and increasing stakeholder expectations.
For the past 6 months, Kevin has served as the Acting CBP
Commissioner and oversees nearly 60,000 employees. He manages a
budget of over $13 billion and ensures effective operations of
CBP's efforts to protect national security while promoting
economic prosperity.
Kevin understands that CBP is not only tasked with keeping
our country safe from threats beyond our border, but also to
securely facilitating legitimate travel and commerce. To this
end, Kevin is personally committed to working closely with
external stakeholders, including the international trade and
travel communities, State and local government and law
enforcement, nongovernmental organizations, interagency
partners, and members of Congress.
I can attest to this commitment. Last December, CBP in
collaboration and coordination with the Hawaii Department of
Transportation, resumed inspection of international passengers
arriving in Kona Airport after a 6-year hiatus. The success of
this project between the State of Hawaii and CBP was fostered
by Kevin and the strong team at CBP.
Kevin is also committed to furthering CBP security
cooperation with our international partners while also
streamlining the Customs process for visitors to our country. I
have worked with him on CBP's expansion of preclearance
operations to Japan and have seen the successful growth of
global entry programs to include a number of Asia-Pacific
nations, most recently India.
While I do not expect to support everything that CBP will
be tasked by the President to do, Kevin's long career in law
enforcement and willingness to constructively work with members
of the Senate will equip him to lead the agency with integrity
and commitment to service.
A letter of support for Mr. McAleenan has been sent by the
Governor of Hawaii, David Ige, in which he highlighted Kevin's
``keen desire to serve the public with a spirit of aloha'' and
the work he did to assist in restarting international flights
from Japan to Kona International Airport.
Mr. Chairman, I request that the Governor's letter of
support for Mr. McAleenan's nomination be included in the
record. That is my testimony.
The Chairman. Without objection, it will be included.
[The letter appears in the appendix on p. 30.]
Senator Hirono. Thank you very much, Mr. Chairman, and
aloha.
The Chairman. Well, thank you, Senator Hirono. We
appreciate you taking time to provide that great introduction,
and we are grateful for you attending our hearing today. So
thank you for being here.
Mr. McAleenan, please proceed with your statement.
STATEMENT OF KEVIN K. McALEENAN, NOMINATED TO BE COMMISSIONER,
CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY,
WASHINGTON, DC
Mr. McAleenan. Good morning, Mr. Chairman, Ranking Member
Wyden, distinguished Senators of the committee. Thank you for
considering my nomination to lead U.S. Customs and Border
Protection today.
Senator Hirono, thank you so much for the kind introduction
and for highlighting my connections to my birth State. I have
very much appreciated working with you and your colleagues in
the State of Hawaii on international travel and trade over the
past several years. Mahalo nui loa.
Please allow me to introduce my wife of 15 years, Corina,
who is not only behind me here today, but every day in
everything I do. Thank you.
My daughters Tatiana, 10 years old, and Caitlin, 7, will
watch the recording--or at least part of it--when they get home
from school this afternoon. Without their enduring support and
patience and love, I would not have had the chance to pursue my
tremendously rewarding career in public service, nor this
opportunity to present myself to the committee today. It is
truly a family commitment to support public service.
I was raised in a family of public servants, each member
drawn to a cause and driven to make a difference. My father,
whose service began in the United States Army, 82nd Airborne,
continues to serve the public today at 80-years strong as a
hearing officer in the L.A. County Mental Health Court system.
My mother worked at the university and college levels for
decades, and my brother is a principal of a high school in
Fresno County, CA working to ensure that children facing stark
disadvantages achieve educational opportunities. My stepmother
works in public elementary education. My sister works with
autistic children while pursuing a degree in social work, and
my youngest brother is considering a career in law enforcement.
I am pretty proud of this group.
Corina dedicated several years early in her career to
working for the Department of Homeland Security at the U.S.
Secret Service and continues to work full time while also being
the best mom I know in order to enable my own government
service.
For me, that call to service came on September 11th. I was
extraordinarily fortunate to have the opportunity to help lead
a new focus on counterterrorism within the United States
Customs Service and then support the transition to our unified
border security agency as U.S. Customs and Border Protection.
Over the past 15 years, I have been able to participate in
the dynamic evolution of the agency, and I am honored to have
had key opportunities to contribute to that transformation,
both at headquarters and in the field. In my management and
leadership roles, I have found it most rewarding to engage
with, support, and advocate for the operators, the CBP
officers, the border patrol agents, air and marine pilots and
interdiction agents, trade and agriculture specialists, and
mission support personnel--our people accomplishing the mission
on the front line.
The men and women of CBP, operating in all 50 States and 40
countries globally, are the heart of our organization and are
some of the finest professionals in government service anywhere
in the world. If confirmed, it would be the greatest privilege
of my professional life to represent and to continue serving
alongside them as Commissioner.
In addition to its people, CBP has a strong foundation of
legal authorities, operational capabilities, and a mission-
focused culture, but we have significant opportunities--as the
chair and ranking member have noted in their opening
statements--with support from the administration and Congress,
to do much more to enhance our trade facilitation and
enforcement, counterterrorism, and border security missions. As
an indispensable national security partner and the Nation's
second-largest revenue collecting source, CBP must continue to
innovate to accomplish its complex responsibilities and to
recruit and sustain the world-class workforce it needs.
I am honored and grateful for the President's nomination as
well as the support from former Secretary Kelly and Acting
Secretary Duke. If confirmed, working closely with this
committee and our stakeholders, I would commit to addressing
CBP's challenges with diligence and transparency and to
supporting CBP's dedicated and extremely hardworking personnel
to take our efforts and our organization to the next level.
It has been a privilege to meet a number of members of this
committee during the process, and I look forward to answering
your questions today.
The Chairman. Well, thank you, sir.
[The prepared statement of Mr. McAleenan appears in the
appendix.]
The Chairman. I do have some obligatory questions that we
ask all nominees who appear before this committee.
First, is there anything that you are aware of in your
background that might present a conflict of interest with the
duties of the office to which you have been nominated?
Mr. McAleenan. No.
The Chairman. Second, do you know of any reason, personal
or otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. McAleenan. No.
The Chairman. Third, do you agree without reservation to
respond to any reasonable summons to appear and testify before
any duly constituted committee of Congress, if confirmed?
Mr. McAleenan. Yes.
The Chairman. Finally, do you commit to provide a prompt
response in writing to any questions addressed to you by any
Senator of this committee?
Mr. McAleenan. Yes.
The Chairman. Well, thank you. We have the obligatory
questions out of the way.
The March 31st executive order pertaining to CBP shows that
President Trump takes the enforcement of intellectual property
rights as seriously as I do. I would like to hear your views on
IPR enforcement, including the ability of CBP to share with
rights-
holders the same information about voluntarily abandoned
counterfeit products as CBP shares about seized counterfeit
products--if you will.
Mr. McAleenan. Absolutely. Thank you, Mr. Chairman.
The enforcement of intellectual property rights is
absolutely essential to our economic competitiveness. And the
protection of American manufacturers and their innovation is a
core responsibility of CBP.
Last year, fiscal year 2017, we ended the year with the
highest number of IPR seizures we have ever had, over 34,000,
an 8-
percent increase from fiscal year 2016. And those seizures are
driven largely by the explosion in e-commerce, small parcels
shipped through both express consignment and mail. In light of
those additional shipments, the workload on our workforce to
seize or to abandon those goods has increased significantly.
You noted the March executive order the President signed. I
believe it is also this committee's strong intent to have us
provide as much information as possible on those voluntarily
abandoned goods to the rights-holders, so they understand
threats to their IP that are present in the international
supply chain. So CBP is working on a regulation that would
enable us to provide not only the general information on the
shipment, but also the parties involved when we have either
seized or abandoned goods that violate international property
rights.
The Chairman. The final deployment of CBP's Automated
Commercial Environment or ACE continues to be delayed. Can you
please discuss the current status of ACE and when you
anticipate that it will be finalized, including whether ACE
will be able to accept the electronic submission and drawback
claims by the statutory deadline?
Mr. McAleenan. Thank you.
During my tenure both as Assistant Commissioner and Deputy
Commissioner, one of our absolute top priorities has been the
completion of the Automated Commercial Environment and the
Single Window, enabling the trade community to submit one time
the data they need to be cleared not only by U.S. Customs and
Border Protection, but by participating government agencies--47
of them that have an interest in goods crossing our border.
We are nearing the finish line, Mr. Chairman, of the
implementation of ACE. It is one of the most complex IT
projects, really, that I think the government has undertaken,
given all the many connections we need to have with importers,
Customs brokers, and partner government agencies.
We are in the seventh of seven deployments in the second
stage of that. In December, we are going to have a release, and
then on February 24th, we intend to have our final ACE release
in production. That would include the drawback capabilities
that you referenced.
The Chairman. The need to balance trade facilitation and
trade enforcement cannot be overstated. Can you please discuss
how you will ensure that CBP will continue to facilitate
legitimate trade while simultaneously enhancing the trade
enforcement?
Mr. McAleenan. Mr. Chairman, I believe those two missions
are vital to our success and are mutually supportive. We cannot
secure the vast flow, the $4-trillion worth of goods crossing
our border each direction each year, without also working to
facilitate it.
The strategy is the same: acquiring advanced data,
analyzing it with a risk management mindset, building trust
with the business community and the supply chain, and
understanding who is operating in that environment. That allows
us to both facilitate goods and to find products that might
present a risk to the American public or contraband that is
included in those shipments.
I think we have matured a lot as an organization and are in
a position to do both trade facilitation and enforcement as
well as our border security missions effectively in the years
ahead. We have a lot of work to do to continue implementing the
requirements of the Trade Facilitation and Trade Enforcement
Act.
We are applying our intelligence and law enforcement
capabilities built for that security mission to our trade
enforcement mission. That is going to make us more efficient.
We are really working closely with stakeholders to understand
their concerns and their hiccups in the supply chain that we
can help reduce.
The Chairman. Well, thank you. Let me just ask one more
question.
I appreciate the difficult task that CBP has in
implementing the removal of the consumptive demand provision.
As you are aware, however, some allegations about the use of
prohibitive labor over this past year have proven to be false.
Now, I would like to hear your views on what CBP can do to
establish a clear process for importers to address these
various allegations.
Mr. McAleenan. The removal of the consumptive demand
exception was an important aspect of the Trade Facilitation and
Trade Enforcement Act that enhances our ability to enforce
forced labor elements in the supply chain to protect American
businesses from unfair competition, and also to protect
populations that would be subject to forced labor around the
world.
We have to aggressively enforce that, but we have to do it
in a balanced way, making sure that when we do issue a withhold
release order on a product, it is appropriate, that we know
what is happening in that supply chain. We have tried to do it
with balance, with a lot of research up front, which is what we
are working on and will continue to do in a balanced manner.
The Chairman. Well, thank you.
We are lucky to have you accept this position. I think we
ought to all be pleased that you are willing to serve.
Senator Wyden?
Senator Wyden. Thank you, Mr. Chairman.
Mr. McAleenan, Senator Brown and I put a lot of effort into
closing the loophole to make sure that goods made with forced
and slave labor did not get into the United States. As you
know, this fight seems to have been the longest running battle
since the Trojan War to do something that, frankly, is
important so that this country does not have a moral blot that
we have to explain, that somehow we are looking the other way
in the face of forced or slave labor. And that is what Senator
Brown and I were concerned about.
My question to you is this: my understanding is that you
all are looking at some regulations in order to carry this out.
Could you give us some sense of what the agency is looking at
in terms of these regulations, because this, of course, is
where you always have lawyers and others trying to somehow
skirt the intent of Congress? So tell us a little bit about
what regulations you are looking at to carry out this important
matter that Senator Brown and I have felt strongly about.
Mr. McAleenan. Thank you, Senator. I am happy to describe
our efforts in this area.
Under our trade remedy law enforcement directorate, we set
up a forced labor taskforce that is very focused on this
mission. I would argue they are passionate about it. They see
the importance of it. They have the clear signal from this
committee in Congress and the administration to address forced
labor in supply chains.
In terms of what we are looking at on regulations, we want
to make sure that we are able to apply all effective
enforcement tools in a most precise and appropriate manner to
this priority mission. I would offer the recent example on
North Korean labor for your consideration.
We read an article on October 4th that indicated that North
Korean forced labor was being used in seafood production in
China. We jumped all over that immediately, researching the
companies involved. We put a shipment on hold the next day that
was in route to the United States--we are up to six shipments
that are on hold, as well as working with our Centers for
Excellence and Expertise to evaluate all commodities and
manufacturers in the region that are affected to see if we can
identify elements of North Korean labor in those supply chains
as well.
That action was taken under our regular section 1499
detention authority, not under the section 1307 withhold
release order, because we were able to do it more quickly that
way and address the shipments that were already on the water.
That is the kind of thing we want to have available in our
tool kit to address forced labor more broadly while still
pursuing withhold release orders under 1307 when we have either
an allegation or a self-initiated case that meets that
standard.
Senator Wyden. Let us go to this question on the
warrantless device searches. And you and I have talked about
this as well.
Americans are concerned now that their constitutional
rights are just stopping at the border. It seems to me that
this border search exception is just not suited to the digital
age.
Now, I want you all to have the tools to be able to move
when you think, for example, national security interests are at
stake in these, what are called ``emergency circumstances.''
But what is the agency doing so that, as a matter of regular
course, there is a level of reasonable suspicion before
requesting to search or seek assistance to search a device?
Mr. McAleenan. So we are using our border search authority
across multiple requirements, to assess someone's
admissibility, to assess the admissibility of goods entering
the country, including electronic devices. We are trying to do
that in the most judicious and measured way that we can.
When we have searches that are more intrusive, say a
personal search looking for drugs, a search of mail, for
instance, or in this case a search of an electronic device, we
often apply specific policy limitations beyond the
constitutionally required or statutorily required limitations.
We have such a policy in place for electronic searches.
Now to be very clear, this happens to less than one one-
hundredth of 1 percent of travelers entering the country. And
even a smaller percentage of those are U.S. citizens. It is
something we use in a very measured fashion when there is an
indicator of concern.
So it is something, Senator, that I understand you are very
interested in. It is something that we expect the committee's
guidance on. And it is something that we are going to continue
to implement very carefully with an eye towards evolving
jurisprudence and the importance of this authority.
Senator Wyden. We will talk some more about it. I think the
only thing I, again, would say that concerns me--you say it is
a small number of cases. I guess all of them are calling my
office, because I am sure hearing from a lot of people.
Let me ask you about one other matter, and that is the
ENFORCE Act. I ask it because it seems to me you are the bright
spot of the trade agenda as it relates to this administration.
You are really moving on the ENFORCE Act.
Because my time is short, could you give us a couple of
examples of what you think are your major accomplishments using
the ENFORCE Act thus far?
Mr. McAleenan. Absolutely.
Briefly, Senator, I think getting the interim final rule
published on time, within 6 months of the finalization of the
act, I think was a big start. Within weeks we were receiving
allegations through the EPA process. We now have 14
investigations ongoing. We have implemented interim measures,
adjusted the rate of entries, issued trade alerts to do live
entries, increased the bond rates or gone to a single
transaction bond, or suspended liquidation for entries.
Right out of the gate on these 14 cases, we have already
protected $33 million in revenue. The single manufacturer of
wire hangers in the U.S. is now protected from this
transshipment that we were seeing with Chinese wire hangers.
And it is something we are pursuing aggressively. We are going
to maintain our adherence to the timelines in the statute, and
we are seeing very good results from this process. We
appreciate the authority in the statute to go after this
unlawful trade.
Senator Wyden. Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Grassley?
Senator Grassley. Congratulations.
Senator Thune and I got passed section 605 of the Customs
Act of 2015 so that we could get all of the interest that is
owed to people who were harmed by the dumping of bee honey by
China.
The previous administration did not carry out 605. Last
Friday, you sent Senator Thune and this Senator some new data-
mining from CBP's Automated Commercial Environment allowing you
to identify the interest owed, and you presumably would
disburse that as soon as possible. Can you give Senator Thune
and me an accounting of all of the funds that have been and
will be disbursed under the requirements of section 605?
Mr. McAleenan. I can, Senator.
Last year in 2016, under the CDSOA Act, we distributed
$47.2 million in interest, and for section 605, $11.2 million
alone. We absolutely recognize the importance of honey, a key
agricultural commodity that is coming under pressure from
dumping, from foreign competition.
When I met with you, Senator, and other members of the
Senate Finance Committee staff, a concern was raised that we
were not interpreting section 605 correctly to provide all due
interests from assurity payments to manufacturers in the United
States. Working with our team, we reevaluated our legal
interpretation and were able to expand our analysis of those
payments.
So using that methodology that you referenced in the
letter, we were able to go back and look at all payments that
were covered by assurities to isolate those that we could then
reimburse interest on. So we absolutely are moving toward that
reimbursement this year. We think we can do it by mid-spring
and distribute that to honey producers in Iowa, North and South
Dakota, Montana, and other States that are affected.
Senator Grassley. Thank you very much.
At the end of May, Homeland Security released the 2016
Entry/Exit Overstay Report. The Department's current report
only provides exit data for air- and seaports of entry,
ignoring vast land ports of entry. For example, one port
processes approximately 20,000 pedestrians and 70,000
northbound vehicles entering the United States on any given
day. However, without exit tracking, our government lacks the
ability to confirm whether individuals have left when they are
supposed to.
What steps will you take to close this loophole and ensure
that CBP starts reporting exit data and land port of entry?
Mr. McAleenan. Thank you, Senator.
I think we are making sound progress on our entry/exit
across the board, not just at the air- and seaports where we
have ongoing pilots to collect biometrics that are in the
process of boarding travelers on these flights--it is going
very well. But we are not going to forget the land border.
We are, obviously, very focused on our information exchange
with Canada and Mexico, which is a key part of that. We are
also going to implement, this year, messaging to all third-
country nationals who might depart over the land border,
explaining the procedures that they need to come into the port
of entry--give us their biometrics on their departure. That
will be a significant step forward.
But we are also pushing on the technology so that we can
address biometric recognition of pedestrians exiting the
country, and ultimately vehicles that are in those outbound
lanes.
As Senator Cornyn and others know, our outbound land border
ports of entry do not have the infrastructure that our inbound
ports do, so we are going to have to have a creative and
innovative technology solution, but we are not leaving that
behind, Senator. That is a key aspect of our mission, and we
are going to pursue it all.
Senator Grassley. Will this biometric exit facial
recognition pilot program to multiple land port entries be
carried out between you and DHS?
Mr. McAleenan. Absolutely.
Our acquisition oversight at the Department is looking at
that carefully. We are also partnering--I have been working
closely with Administrator Pekoske since he got in the chair
over at TSA about collaborating on this technology. We think
our innovations in this area and the accessibility of the
matching tool can be useful for TSA and other partners, working
closely with the Office of Biometric and Identity Management to
ensure it is consistent with their future developments and
their biometric system.
So yes, it absolutely has to be coordinated across the
Department to be effective.
Senator Grassley. Okay.
The Chairman. Senator Stabenow?
Senator Stabenow. Thank you, Mr. Chairman.
I apologize for my voice this morning, but good morning,
Mr. McAleenan. It is wonderful to see you again. I appreciate
the conversation in my office and enjoyed hearing about your
family's connections to Michigan.
You have a very important job ahead of you, and certainly
for Michigan, as we talked about. We have the busiest northern
border in the United States in Detroit: Detroit to Windsor.
I was pleased to see that in February, President Trump and
Canada's Prime Minister Trudeau referenced the construction of
the new bridge, Detroit's Gordie Howe International Bridge and
Customs plaza, as a factor for building stronger ties between
our two countries.
Detroit, though, is not the only border crossing that is
busy in Michigan. The Blue Water Bridge in Port Huron is the
third busiest land crossing in the United States.
When we are talking about the value of shipments, the
Customs plaza there has had serious difficulties with high
traffic and has been slated for expansion for years. A lack of
Federal funding has stalled the project and affected the
community due to lost property tax value when land was cleared
in anticipation of the Customs plaza.
So my question is, what are your plans for the Customs
plaza at the Blue Water Bridge, and will you commit to working
with me to make this long overdue Customs plaza a priority?
Mr. McAleenan. Thank you, Senator.
Absolutely. We have a rigorous prioritization process that
goes on volume, that goes on the importance of the trade
between Canada and the U.S., to prioritize port-of-entry
infrastructure projects.
The Blue Water Bridge in Port Huron, as you noted, has been
a priority on that list for some time. I absolutely will commit
to working with you. We are offering an annual report showing
our priorities to our partners at OMB and the General Services
Administration. Hopefully, we can continue to move forward with
investments in infrastructure, because it has such an impact on
international trade.
Senator Stabenow. Thank you.
Well, this was a start/stop project. So the community has
been put in a very bad situation on top of the need for the
Customs plaza.
What commitment do we have from the President for the
Gordie Howe International Bridge and Customs plaza that will be
located there?
Mr. McAleenan. Our commitment has been to work to put the
officers, the technology, and everything we need into the
budget to work efficiently as soon as that bridge is done so
that we can support the opening as soon as they are done with
the span.
Senator Stabenow. Thank you.
Moving to a different subject, again, talking about
enforcement. I continue to hear about the growing trend of
counterfeit parts, particularly in Michigan--auto parts being
imported. We have seen a number of situations where other
countries or companies set up fake websites that sell products,
steal logos, and the company does not know that that is
happening until someone returns a defective product. They would
want a refund, but yet the company did not sell that to them.
So on top of everything else, it poses serious safety risks.
So CBP plays an important role in effective intellectual
property enforcement. In one case, I got a call from a company
in Livonia, MI that saw with their own eyes a booth at a trade
show in the United States where a company was using their brand
and their logo to sell counterfeit auto parts.
They called me. I was able to intervene and communicate
with the National Intellectual Property Rights Coordination
Center, of which CBP is a member. They did an excellent job.
They went right to the trade show, and they actually shut them
down, which was very impressive to me to see how quickly they
acted.
But this continues to happen over and over again. On the
issue of auto parts, the industry loses billions in sales each
year. And I am sure that is true for other industries, and the
Federal Trade Commission has estimated the use of counterfeit
parts has resulted in as many as 250,000 fewer jobs in
manufacturing.
Will you commit to cracking down on counterfeit goods as a
priority?
Mr. McAleenan. I will absolutely commit to that. I am
grateful to hear of the responsiveness of our team when they
got that report.
One of the main drivers with our Centers for Excellence and
Expertise is to have that partnership with industry to receive
that business intelligence and respond to it, because we want
to shut down those counterfeit parts. They present safety
risks, and they affect American manufacturers.
Senator Stabenow. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Enzi?
Senator Enzi. Thank you, Mr. Chairman.
Thank you, Mr. McAleenan, for being willing to serve. We
can tell from the questions how diverse your jurisdiction is,
and how much you have to cover. So I think I will bring up one
more issue.
I am from Wyoming, which is the sixth largest State in the
Nation. It is the least populated. So we have miles and miles
and miles and miles, but we do have an international airport in
the center of the State. It is Casper and Natrona County.
They are in the process of expanding their foreign trade
zone. They need to obtain a Customs port of entry designation
status in order to qualify for this expansion. We have worked
hard to make sure there was a Customs official there, and we
want that to continue.
My staff has had trouble getting a straight answer from CBP
on the status of their designation. CBP officials have told my
staff conflicting information about whether such a designation
is likely.
I would like for you to commit that your component will
review this request and clearly communicate with my staff and
my constituent about the status of the designation and any
barriers that remain to the designation so that we can provide
the airport with up-to-date and accurate information.
Mr. McAleenan. I can commit to that. Obviously, foreign
trade zones are critical to expanding exports and to increasing
economic activity. I can assure you that we will clean up and
clearly communicate on the requirements and our ability to work
with Casper Airport to set that up. Executive Assistant
Commissioner Todd Owen will be our point of contact.
Senator Enzi. Thank you very much.
Your agency is working closely with the Department of
Commerce and the Department of Agriculture to monitor and
enforce the recently amended antidumping and countervailing
duty suspension agreements on sugar from Mexico. It is
essential these agreements operate effectively to assure that
the sugar policy can continue to operate at no cost to the
government, and that domestic beet and cane farmers, beet
processors, cane millers, and cane refiners are not injured by
imports of dumped and subsidized sugar from Mexico.
Can you assure me that enforcement of the sugar suspension
agreements will be a high priority for CBP?
Mr. McAleenan. I absolutely can. We are very focused on
antidumping/countervailing duty enforcement across all
industries.
Senator Enzi. Thank you.
No further questions.
The Chairman. Thanks so much.
Senator Cornyn?
Senator Cornyn. Mr. McAleenan, thank you for being willing
to serve. I know you come to this job with a lot of great
experience, and I appreciate that, because I think it is one of
the most important jobs in the Federal Government.
It is no coincidence that I come from a State with 1,200
miles of border with Mexico, and you know all of the issues as
well as anybody. But I want to focus on the combination of
security and trade.
I think some people have the mistaken idea that you get one
or the other. I think they go together, and it is very, very
important for the Federal Government to not only invest in the
infrastructure that we have heard referred to in the past on
the northern and southern border, but also to provide the
personnel to keep legitimate trade and travel moving, because
it is an important part of our economic engine.
At the same time, the American people clearly want us to
secure the border between the ports of entry, which is
necessarily the same thing. I would just commend for your
consideration some legislation that we have been working on for
some time called the--well, essentially, it is a smart border
bill, working with the House and the Senate as we try to find a
path forward on the deferred action, the so-called Dream Act
kids who are now young adults whom the President has kicked
over here to Congress for us to deal with.
It seems to me like there is a perfect marriage of both the
border security and enforcement bill along with some solution
for these young adults who came here with their parents and,
through no fault of their own, find themselves in a dead end.
So I would just ask for your continued consideration of what we
are trying to accomplish there and to keep working with us.
Part of that, as you know, involves securing fast ports of
entry. And you have alluded to this in your testimony earlier.
Senator Wyden talked about the need to have more blue shirts at
the border, and certainly we support that on the southern
border as well.
Can you, sort of, give us your perspective on this marriage
of security and legitimate trade and travel, and why you
believe that we should accomplish both, and we can do both of
those together?
Mr. McAleenan. Absolutely, Senator.
It is very clear to us--and it is a mission that we have
thoroughly internalized--that economic security, our economic
competitiveness, and the fast and smooth flow of trade across
our border are instrumental to our national security. So they
are absolutely intertwined.
I think the example I was offering on forced labor with
North Korea puts it in stark relief, that if you are enforcing
against a national security adversary, but doing so in a way
that protects the U.S. economy, it is very well aligned.
On our southwest border, obviously hundreds of billions of
dollars of trade cross the border with Mexico. That is critical
to U.S. exports and imports. And it is part of our
responsibility to facilitate that while addressing the
challenges we face on narcotics that affect our communities,
challenges with illegal immigration, crossing our border, both
at ports of entry, but as you referenced, the clear signal from
the American people, the administration, that we need to
continue to improve our border security between ports of entry,
which is going to be a central focus of our organization going
forward as well.
To me, as you note, these things go hand in hand. You have
to have good partnerships. You have to have trust.
I have been to Mexico four times in the last 6 months,
working closely with our law enforcement partners there. We
need strong partners, and we need trust and communication with
our law enforcement counterparts in Mexico to do this
effectively.
I think our relationship with Mexican Customs, Aduana, is
as good as it has ever been. We are doing joint inspections,
unified customs processing. On the U.S. side of the border, we
are able to cut hours down for each truck crossing, and we are
able to share information and increase the security of those
shipments at the same time.
That is the kind of thing we want to put in place to
achieve those dual objectives that you outline.
Senator Cornyn. And you are familiar with the GAO report on
CBP action needed to improve wait-time data and measure
outcomes of trade facilitation efforts? That is what you are
referring to here, is it not?
Mr. McAleenan. I am aware of that report. And that is a
commitment of ours, to continually improve our ability to
capture wait-times, to communicate them transparently and give
real-time information for truck drivers so they know what to
expect as they approach the border so we can increase
utilization of those ports in off-hours.
We get everybody, kind of, arriving at the same time, as
you know. You have seen that at Laredo with the trucks lining
up. We would like them to use the evening hours or the early
morning hours to use that infrastructure more efficiently. That
is something we want to be able to communicate effectively, and
we sent a report up in response to the GAO analysis.
Senator Cornyn. Well, we would welcome your continued
advocacy within the administration and also with explaining to
the American people why these are not mutually exclusive and
how bilateral trade with Mexico alone supports roughly 5
million jobs in the United States, and they are not all in
Texas. They are throughout the country.
Trade with Canada supports roughly 8 million jobs in the
United States, and these are important. And they are achievable
together, both security and trade. We appreciate your advocacy
for that message.
Thank you.
The Chairman. Thank you, Senator.
Senator Isakson?
Senator Isakson. Thank you, Mr. Chairman.
Congratulations on your nomination, and thank you for the
job that you do for the country.
As you probably are aware, the port of Savanah is the
fourth largest container port in the United States of America.
It went from 2.6 million containers in 2007 to 4 million
containers this year. With the deepening and harbor expansion
of that project--it will be finished in 3 years--they will be
taking the Panamax ships of the 21st century that have 14,000
containers per ship.
So growth of that port has been unbelievable, and its use
has been unbelievable. Yet, we still do not have any more
officers in the border protection personnel in Savanah now than
we had 10 years ago before that growth started.
Can you address that? Are you familiar with what has been
done to meet the demand down there, and what do you see for the
future?
Mr. McAleenan. Thank you, Senator.
I am familiar with the tremendous investments and the
growth in Savanah at the seaport. It is something we are
monitoring closely as we build our staffing models every year.
We do try to look not only at that growth, the container
volume itself, but also at the predicted economic changes in a
given region or port of entry. At this point, our Atlanta field
office, which Savanah is very near--it has 100 percent of
authorized staffing.
But that does not mean that we think that we have enough
staff. We have submitted a workload staffing model to Congress
which reflects the need for another 2,500 CBP officers and 720
agriculture specialists that would allow us to better process
trade.
But that is not the only way that we think we can improve
efficiency and meet the need of that growth. We are doing even
more on automation, and we have implemented processes where we
are able to let trusted traders, trusted carriers, unload cargo
even before the vessel has cleared. About 98 percent of that
cargo is cleared before it even arrives in Savanah, based on
all of the information we have on the supply chain and the
shippers involved.
So we are going to continue to drive that. We cannot be a
barrier to that economic growth in Savanah.
Senator Isakson. Well, your enforcement of Known Shipper
and the other programs that are available is just fantastic. My
comment about the number of personnel has nothing to do with
the competence of the ones who are there, just the hope that we
keep up with it as the demand goes up. Which leads me to
Hartsfield International Airport, which is the largest airport
in the world in terms of the number of travelers. We went
through 100 million last year.
Your enforcement there in terms of the number of personnel
is still about the same as well. Now again, in terms of border
protection violations, we have had little or no increase in
violations even with the growth of that airport, but are you
planning for that growth as time goes on?
Mr. McAleenan. We are. And we have a very close partnership
with the airport as well as Delta and the rest of the carriers
there in Atlanta. It has some of our lowest wait-times among
major airports because of the work they have done on the
facility, because of the partnership with us to establish
technology that can allow for us to facilitate those travelers
more efficiently: the automated passport control kiosk and the
mobile passport control kiosk.
They are also partnering closely with us on biometrics that
would work within the process of boarding travelers. So that
partnership in Atlanta is key.
Senator Isakson. Can I interrupt?
Mr. McAleenan. Yes, Senator.
Senator Isakson. Excuse me for interrupting, but that
includes the U.S. Visit Program, the biometrics? Is that
correct?
Mr. McAleenan. It does. Yes, we are taking biometrics on
all international air arrivals----
Senator Isakson. That continues to be extremely effective
in protecting the border through the airports. Is that not
correct?
Mr. McAleenan. Absolutely.
Senator Isakson. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Senator Cantwell?
Senator Cantwell. Thank you, Mr. Chairman. And again,
congratulations on your nomination.
When it comes to the State of Washington and ports, I
always say, ``Ports are us,'' because with so many ports and so
much traffic, it is essential that we have the swift movement
of goods and services for our economy to be effective. And we
spend a lot of time on this--so both on the efficiency and on
the security side.
I wanted to get your thoughts on the preclearance program
that Senator Collins and I have worked on, which is shifting
our borders to overseas airports so that we can be safer and
more secure, funding of new personnel so we can better cover
our seaports, which are key parts of our gap in personnel, I
think, at Customs and Border Protection. And then also I wanted
to make sure I understood your position as it relates to racial
profiling and whether CBP is involved in racial profiling at
our borders.
Mr. McAleenan. Thank you, Senator.
I will address all three. On the preclearance side, we
think it is simply the most efficient and most secure way to
process air travelers headed to the United States. And that is
why in the last 3\1/2\ years I have spearheaded an effort to
expand preclearance and expand the options for traveling to the
United States in this secure and facilitative manner.
The airports that have it--I will give you an example.
Dublin Airport, for instance, is now the fifth largest last
point of departure from Europe. It has grown almost threefold
in the past decade. Their transfer traffic is up dramatically.
Abu Dhabi International Airport, which had fewer than
200,000 passengers just a few years ago, is annualizing toward
a million already. Passengers are choosing this routing because
they can arrive and go direct to their destination or their
transfer flight, and we get to do our full checks before they
even board that aircraft. So those flights are more secure and
safer on the way to the U.S.
So that is something we are going to continue to pursue. It
is an economic driver and a security program at the same time.
Additionally, with the partnership with foreign airports,
we can add staff to cover those flights while maintaining our
staffing levels domestically, which is a requirement under the
statute. So that is a key focus, and we are going to continue
to press for expansion if confirmed. And really it is something
we recognize across our organization as an efficient program.
In terms of seaports, that is part of that staffing
requirement and request that we have offered annually in our
Workload Staffing Model Report. We do agree that staffing of
the seaports is absolutely critical.
I would note, though, that it is the area where we have had
probably the most significant long-sustained innovation on
speeding containers through. Again, 98 percent of containers
are cleared before they arrive. We have adjusted our algorithms
on our radiation portal monitors so we have many, many fewer
false positive alarms, called ``norm alarms''--so a very big
reduction in secondary inspections.
We are also letting on the west coast--through the AQUA
Lane Program--carriers unload containers as soon as they arrive
and connect to dock power so they do not have environmental
hazards, which I know is very important in your State. So we
are going to continue to advance on our seaports.
In terms of racial profiling, it is absolutely prohibited.
It is unconstitutional. We have a strong, clear policy against
it, and we are going to maintain that, and we are going to
maintain our relationship with the community in your State to
make sure that any issues or concerns are promptly and
appropriately followed up on.
Senator Cantwell. So do you think if people were being
asked at the border if they were a devote Muslim, if they were
Sunni or Shia, if they prayed 5 times a day, did they have a
mat, did they have a Quran in their luggage--what do you think
those questions are?
Mr. McAleenan. So I cannot speak to a specific incident
from the generality, which we would want to do to give you a
more specific answer. But religious questioning can be
appropriate depending on the type of visa that someone is
traveling on, depending on the information on the travel that
helps us understand any risk presented better.
But in general, any sort of religious questioning that
seems to be not connected to any other indicators of risk would
not be appropriate and is prohibited by policy as well.
Senator Cantwell. Well, I think I am going to have to come
back to you on what aspects of those are appropriate. Listen, I
could not be more grateful for Customs and Border Protection in
catching--in the Ressam case at Port Angeles. So, great work in
catching something that did not match up. And just so that I am
clear, I am for biometric standards, and we should be saying to
Europe and everybody else, use biometric standards or you do
not get your visa waiver program.
But on this issue, I have also seen Customs and Border
Protection, particularly in the Port Angeles area when we gave
more money to the northern border, all of a sudden driving
around in dark cars and no one even knew who they were, pulling
people over just because they were brown-skinned, and people
saying, I do not even know who you are. The sheriff did not
even know what was going on.
So we have to have fair treatment of the population as
well. So we are going to follow up with you on this.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Cassidy?
Senator Cassidy. As we know, you are charged with--your
agency is charged with enforcing the Jones Act. And in 2009 and
earlier this year, CBP proposed to modify or revoke certain
Jones Act Ruling Letters. You have been there for several
years. So it seems as if--I would like your thoughts as to how
we bring this into compliance with the Jones Act.
Again, CBP proposed to revoke these, but it has been put on
hold. Your thoughts about that?
Mr. McAleenan. Thank you, Senator.
Yes, as you know, earlier this year we had a proposed
change under section 1625 to a series of rulings going back
decades on specific merchandise covered under the Jones Act,
which we enforce. We received over 3,000 comments on that
proposed change in the ruling. The decision was made at the
Secretary level, in consultation with interagency partners, to
not move forward with that at the time. It is something----
Senator Cassidy. And what was the reason for that, because
this has been on hold since 2009? Congress was pretty clear in
its legislation as to what the law is. It seems, in a sense, as
if CBP or the agencies, or the Department is making a decision
as to whether or not to enforce laws that Congress has passed.
Thoughts about that?
Mr. McAleenan. Yes. I think, Senator, what you saw was a
significant set of considerations that affect interagency
interests, whether it is the correct process for undertaking
this change from our OMB colleagues, whether it is the
Department of Energy, the Department of Defense, or other----
Senator Cassidy. Now, I get that, but there is a clear law
written by Congress. And there might be concerns, but they were
Congress's concerns.
What I am hearing from you is that it may not be your
department. It may be OMB and Energy, but nonetheless, just for
the record, I will say that Congress passed a law. And those
were the things of consideration for us. I think I know your
sympathies, but at the same time, I have to kind of establish
that.
So let me ask. On September 7, 2017, CBP granted an appeal
of and reversed penalties totaling more than $24 million for a
Jones Act violation involving transportation of merchandise on
the outer continental shelf by a foreign vessel.
Can you tell us more about this case, and whether that
appeal was granted due to one or more existing Ruling Letters
issued by CBP?
Mr. McAleenan. I do not have the specifics on that case as
we sit here today, Senator. But I will go back and report to
your office on that.
Senator Cassidy. Okay.
And then related to that, since you are going to report, if
you could include this in the report, was the Ruling Letter one
CBP had proposed to revoke or modify in either 2009, or January
of this year, or both? I mean, that is of interest to us.
Mr. McAleenan. I will include that.
Senator Cassidy. Yes, and if you could, also include in
that all written communication by CBP to the company involved
in this matter.
Secondly, changing the subject kind of significantly, I am
told that the number of immigrants caught crossing the border
is higher for the second straight month in June of 2017, after
decreasing month by month since the election of President
Trump. Have you heard from sector chiefs, and what are your
thoughts as to why apprehensions have begun to increase again?
Mr. McAleenan. Thank you, Senator.
We are fully tallying our 2017 results, but in all
likelihood, it is going to be the lowest level of illegal
crossings between ports of entry in over 45 years. We believe
that that drop in the initial months of this administration was
due to very clear messaging on the intent----
Senator Cassidy. Well, let me ask. I totally accept that,
but in the last 2 months it seems to be rising once more. So
granted that there has been a fall, what has happened the last
2 months?
Mr. McAleenan. Sir, I think that goes back to the
announcement by the administration 2 weeks ago about the
process of what immigration policy and system changes are going
to be required to support the fine efforts of the men and women
of the U.S. Border Patrol to apprehend people crossing the
border. Those are things like asylum reform, adequate
immigration judges to process cases timely and ensure removals
happen, use of----
Senator Cassidy. So just to make a connection between the
question and your answer, are you saying because it might be
getting tougher to achieve asylum reform, people are rushing in
to get in under the current regime?
Mr. McAleenan. I am saying that the clear intent to enforce
immigration law has resulted in a significant reduction of
crossings, but there are still some fundamental aspects of the
system that need to be addressed, as the administration
released 2 weeks ago. That includes family detention----
Senator Cassidy. And then that would, hopefully, address
this?
Mr. McAleenan. Yes.
Senator Cassidy. Let me ask, in my remaining seconds,
Vietnam was one of the primary exporters of seafood to the U.S.
In April of this year, one of Vietnam's top health
administrators stated that antibiotics in food and their
overuse to treat disease are increasing in Vietnam.
When does CBP determine it is necessary to work with FDA to
issue fines and generate import alerts and make arrests rather
than just to destroy the product; i.e., how do we just catch
the symptom as opposed to going after the bad actors
themselves?
Mr. McAleenan. I will follow up on that specific issue with
FDA and get you more information, but in general, we want to
apply the maximum enforcement posture we can by going beyond an
interdiction of a shipment to look at the network, to look at
how they are trying to exploit our laws, and to target them
with investigative partners, whether it is FDA or HSI----
Senator Cassidy. Now, one thing in medicine--I am a doc, so
I am going to come at this from medicine. You, typically, would
sample. And if you find that 5 percent of a product is bad, you
do not just destroy the 5 percent. You say, 5 percent is bad.
We are going after the whole lot. You presume that that sample
is representative, as opposed to just an out-parcel.
Now, it is my understanding, though, that the way the
current system works is that 5 percent is destroyed, but it is
not taken as representative of the entire. It seems,
intuitively, that if 5 percent is bad, the whole lot is bad.
Am I correct in understanding that only the 5 percent would
be destroyed and not the whole lot? And if so, why is it not
taken as representative?
Mr. McAleenan. We have a robust sampling and testing with
our labs. If they detect that a shipment, the parts they are
sampling, includes inappropriate antibiotics, in the case you
are offering, or other issues that are violative, we will
destroy the whole shipment.
We cannot extend that to all shipments from a certain
country, but we can target that full shipment.
Senator Cassidy. But presumably--and, Senator Brown, I am
going a little bit long. Am I holding you up? I do not want to,
so let me ask: if there is a bad actor that consistently is
sending tainted product, is that bad actor targeted so that bad
actor gets 100-percent review of their shipped products?
Mr. McAleenan. Absolutely.
Senator Cassidy. Okay. Thank you very much. I yield back.
The Chairman. Thank you.
Senator Brown?
Senator Brown. Thank you, Mr. Chairman. I appreciate that.
Welcome to the committee. The opioid crisis issue, as you
know, is devastating communities everywhere. My State, in Ohio,
between now and lunchtime, the odds are someone will die of an
overdose--11 Ohioans by the end of today.
Fentanyl is 50 times stronger than heroin. Any solution to
the opioid crisis must include stopping fentanyl shipments from
coming to the U.S. The Interdict Act, which Senator Portman and
I partnered on with Senators Rubio and Capito would provide
your agents with more resources and equipment to screen
packages. You know all of this.
Can you confirm that having more portable screening devices
would increase and enhance CBP's ability to stop deadly drugs
like fentanyl from entering the U.S.? And second, can you
confirm it will be a priority for you as Commissioner to
procure more of these devices for your agents?
Mr. McAleenan. Technology to both identify fentanyl in
shipments, to test it effectively, is absolutely essential to
successful interdiction. And interdicting fentanyl and
prioritizing capabilities that help us do it better will
absolutely be a priority.
Senator Brown. You will help me get this enacted into law?
Mr. McAleenan. I cannot comment on specific legislation,
Senator, but absolutely I would work with you and provide
technical assistance, because we think these kinds of things
would be very helpful to our mission.
Senator Brown. Okay. Thank you.
You and I spoke several times on the phone and in person
about the importance of blocking all goods made with forced
labor. And I thank both the chairman and the ranking member for
their leadership on this issue and how we were able to update
the law.
You said it is a top priority of yours. But I remain
concerned we have not seen any enforcement actions against
forced labor in the last 10 months, not a single withhold
release order, not a single WRO has been issued to stop forced
labor imports from coming in.
I am troubled by that. I know you said earlier you are
trying to achieve a balance. I do not know what that means when
it is zero on one side.
My question is, will you commit to using WROs to block
imports in every instance--this is not a balance--blocking
imports in every instance that CBP has reasonable, but not
conclusive evidence that they were made with forced labor?
Mr. McAleenan. I can tell you right now that I commit fully
to using section 1307 to enforce and protect forced labor
elements in supply chains. And we are working very hard to
identify, again, tobacco, seafood, palm oil, gold, vegetables,
toys, sugar cane. We have 14 ongoing efforts across country and
commodity combinations to better go after forced labor in
supply chains. And as soon as we hit that standard which is
from the statute, we will absolutely issue further WROs.
I would just like to note, Senator, though, that the six
shipments we have on hold of suspicion that they were made with
North Korean forced labor, I would count as forced labor
enforcement even if we did not use a WRO to affect it--all
happening this month.
Senator Brown. Okay.
At best, that is a grand total of one. But I thank you for
that comment.
One other troubling point is, I have heard some of your
staff are indicating they think WROs should be issued only when
they know CBP can make a finding as well. The misreading of the
statute could explain the complete lack of enforcement we have
seen this year. This is just simply unacceptable. It is not
what the statute meant or what the statute says.
Findings require a higher evidentiary standard. And CBP's
history of forced labor enforcement is, 34 WROs have been
issued, but only 8 findings have been issued--you understand
the huge discrepancy there.
If CBP wants to issue a WRO until a finding can be issued,
you will gut the most effective forced labor enforcement tool
that you, that CBP has.
So my question is, will you commit to issuing WROs when you
have met the WRO evidentiary standard, and issue findings,
then, when you have met the findings standard?
Mr. McAleenan. Yes.
Senator Brown. Thank you.
Last question, Mr. Chairman, and thanks for your
cooperation.
There are plenty of sources of information about forced
labor: outside advocacy groups with on-the-ground experts--
obviously, it is a complicated, big world out there, and we
have a lot of those contacts around the world that feed us that
information, as you do.
The Bureau of International Labor Affairs at DOL produces
an annual report that identifies sectors, as you know, with
forced labor in them. Recent investigative reporting into
sectors where forced labor is prominent is important. I have
been frustrated that CBP is unwilling to initiate
investigations into forced labor in the private sector despite
readily available detailed information.
So my last question--and thanks for your indulgence, Mr.
Chairman--will you commit to this committee that CBP will use
all sources, including the ones that I just delineated, all
sources to investigate and self-initiate cases on forced labor?
Mr. McAleenan. Yes, absolutely.
Thank you for the introductions to civil society
organizations that are expert in this field. We are going to
continue to meet with them regularly.
They have helped us focus on our trade partners, using
their responsible sourcing capabilities and their supply chain
and third-party audits to increase our intelligence and
awareness of these issues. I can tell you that, even though
there have not been additional WROs, it is not for lack of
internal effort or a number of outstanding efforts that we are
analyzing with different country commodity combinations
currently.
Senator Brown. Thank you. We are counting on you.
Thank you.
The Chairman. Thank you.
Senator Portman?
Senator Portman. Thank you, Mr. Chairman.
While Senator Brown is still here, and in reference to
comments that I am sure he made before I came in, and comments
I heard earlier from Senator Wyden--first I want to welcome
you. And we look forward to getting that ``Acting'' off of your
business card, because we need you, but we really need your
help on the ENFORCE Act, and the broader issue of enforcing our
trade laws.
You and I talked about this at length--it is not typically
something that Customs and Border Protection specializes in,
but we have to. And we have to because countries are
circumventing our trade laws by moving to another country to
export their products to avoid our tariffs even when we win
trade cases.
There are lots of examples of this. We have one in Ohio. It
is American Spring Wire in Bedford Heights, OH. They won a
trade case. And after they won the trade case, they celebrated.
And then they found out, oh my gosh, even though they won the
trade case with regard to Chinese importers, the production
then shifted to Malaysia--same issue, same company.
So it is a huge problem. Wheatland Tube in Warren, OH, U.S.
Steel in Lorain, have run into this problem also. And we need
your help on it. We have provided you the tools. We have given
you this new law to be able to be more aggressive.
I will not ask you to comment on that because I want to get
into another issue. And I will ask for your comment on this.
This has to do with the drug epidemic we face as a country.
Sadly, the new wave of drugs coming in are synthetic heroines
which are even more dangerous and even less expensive.
In my State of Ohio, our State of Ohio, with Senator Brown
and me, we now believe it is the number one cause of death
among the other drugs. So prescription drugs, heroine--fentanyl
and carfentanil and other synthetics--are now pushing those
out.
I talked to law enforcement last week--someone told me,
Rob, it is actually being spread in every other drug now. So
they are finding traces of fentanyl in other drugs, including
cocaine, marijuana, and so on.
It is a scourge, and it is something we can do something
about. And as you know, back in 2002, this committee passed
legislation that said, if you are a private carrier, you have
to provide Customs and Border Protection, the DEA, local law
enforcement, information so that they can stop these illegal
drugs, but also other contraband coming into the country. And
that is advanced electronic data that allows them to target
packages or letters to know when there is a potential problem
by saying what is in it, where it is from, where it is going.
We did not require it of the post office in 2002, but we
did say they should do it. And we said there should be a study
on it.
Well, here we are 15 years later with this crisis on our
hands, and the post office still has not done it. Why is that a
problem? Because fentanyl does not come in over land. Fentanyl
comes almost exclusively through the mail system, and the
traffickers have figured this out. They do not intend to use
UPS or Fedex, DHL. They use the post office because the post
office does not require that information.
So I just cannot tell you--I have been out in the field
with your guys. You should know--I told you about this. I have
been at two screening facilities in Ohio where I have seen them
at private carriers, DHL, UPS, pull the packages, have them
tested, which is incredibly dangerous, because they have the
information. They know where the suspect packages are.
The post office has pushed back on this unbelievably. This
committee has responsibility here, and the chairman has a lot
on his plate right now with tax reform, but we need to mark up
this bill, Mr. Chairman.
It is called the STOP Act. It is very simple. It simply
says the post office should do what we suggested they do 15
years ago, and we have to do it now. This stuff is coming
primarily from China, and it is coming primarily from the U.S.
Postal Service, and it is going straight to P.O. boxes from
traffickers and users and to abandoned warehouses in my State
of Ohio.
This poison is getting into our communities. It is, again,
the number one cause of death, we believe, in terms of
overdoses. So, again, you and I have talked about this. I would
love for you to comment on this today and to tell us what you
are going to do once we get that ``Acting'' off of your
business card and you are able to roll up your sleeves and get
engaged in helping to stop this deadly poison from coming into
our communities.
Mr. McAleenan. Thank you, Senator.
Let me just say I share your concern on the scourge of
fentanyl and its effect on our communities, especially in the
State of Ohio, 100 percent.
Since I have met you, I have met with Postmaster General
Brennan four times, either in person or by phone, to try to
talk about how we can increase that advanced electronic data to
better identify potential risky shipments coming into the U.S.
We have had some significant developments in this area.
We are up to 44 percent of mail providing some advanced
electronic data. That is a dramatic change because of China
increasing their submissions. China is also the highest risk
origin point for fentanyl, as you know, Senator.
So we think those are very positive developments, but we
are not going to stop there. We know we need to move toward a
regulatory approach after requiring this data. We know we need
to closely collaborate with Postal on capacity building for
posts around the world. We need to continue to emphasize this
at the World Customs Organization, where I would represent the
U.S., as well as the Universal Postal Union, where the
Postmaster General would be representing.
We have to get there. We have to get comprehensive data to
better target. And we appreciate your focus on that requirement
in the Senate.
Senator Portman. Do you support the STOP Act?
Mr. McAleenan. I cannot support a specific piece of
legislation, but I absolutely support the goals of the STOP Act
in getting that advanced electronic data. And there are several
other things in a strategy that we think would be helpful,
along with the U.S. Postal Service and FDA, that we can offer
to enhance our capability as well.
Senator Portman. Your Acting Assistant Commissioner, Robert
Perez, testified before us at the Homeland Security Committee
that the STOP Act was a good idea. So has the Secretary of DHS,
both former and current. This administration needs to help us
to get this thing done and to be sure that we have the
requirement in law that these packages are able to be
identified by your people to be able to stop this poison from
coming in.
I will say also, Mr. Chairman, just quickly, you know, this
is an issue that crosses party lines. We have 26 cosponsors,
including members from this committee on both sides of the
aisle, including Senator Brown and myself, and there is an
urgency here. This is not like some other legislation we may
talk to you about today. This is one that is killing people
right now.
We know we can help to keep some of this off the streets--
at a minimum, raise the price. I think this is such an urgent
matter that I hope--should you be confirmed, and I believe you
will be--that you will take this up and help us get this
legislation passed.
Thank you, Mr. Chairman.
The Chairman. Well, thank you, Senator.
Senator Wyden has some remarks.
Senator Wyden. Thank you very much, Mr. Chairman.
I just want to take a quick minute and talk about where I
think our country is with respect to trade policy as of this
moment. And in particular, contrary to Federal law, the
American people are in the dark about what their government is
asking for on NAFTA.
As Chairman Hatch knows--and I have been very appreciative
of his support on this--I insisted in the last Congress that
the administration publish and regularly update public
summaries of its trade objectives. And as of now, the
administration is falling down horribly on this job, and the
reason that this is so important--and as I say, I appreciate
the chairman's support on this--is whatever a Senator's view is
with respect to the trade issue--and I happen to think it is
awfully important, because in my State one out of five jobs
revolves around international trade--the trade jobs often pay
better than do the nontrade jobs. I believe it ought to be
possible for an American to go to their Senator's community
meetings--I have these town hall meetings--and to be able to
sit at that meeting with a copy of one of these summaries in
their lap so that they can ask their duly elected Senators
questions about what is actually being debated.
The fact is, this administration is not following through
on a Federal law that I felt particularly strongly about, and
that the chairman and I worked together on. So, Mr. Chairman,
it is my intention that unless this administration gets serious
about following Federal law and the public's right to know as
determined by the Congress of the United States, after Mr.
McAleenan gets out of the committee--and I surely hope he does,
because I think he has been responsive to our questions and,
obviously, he has expertise--it is my intention to not support
moving from the committee any additional trade nominees until
Federal law is complied with and these summaries are actually
updated.
Mr. Chairman, again, I will be working closely with you on
these matters. I appreciate being able to take a minute to
address this concern.
The Chairman. Well, thank you.
As you can see, our ranking member feels very deeply about
many matters, and this is one of them.
I want to thank everybody for their participation today. I
have appreciated the thoughtful comments and questions from my
colleagues as well as the really good responses from Mr.
McAleenan. You have been one of the best witnesses I have seen
before the committee in a long time. I am really proud of you.
I think it is wonderful that we can have your services and your
help in this very, very critical and important area.
My hope is that we can process Mr. McAleenan's nomination
in short order and continue the important bipartisan work of
this committee.
For any of my colleagues who have written questions for the
record, I ask that you submit them by close of business on
October 27th.
So with that, thank you for your appearance, Mr. McAleenan.
You have done very, very well, and I hope to push you right
through as soon as possible.
With that, the hearing is adjourned.
Mr. McAleenan. Thank you.
[Whereupon, at 11:30 a.m., the hearing was concluded.]
A P P E N D I X
Additional Material Submitted for the Record
----------
Prepared Statement of Hon. Orrin G. Hatch,
a U.S. Senator From Utah
WASHINGTON--Senate Finance Committee Chairman Orrin Hatch (R-Utah)
today delivered the following opening statement at a Finance Committee
hearing to consider the nomination of Kevin K. McAleenan to serve as
Commissioner of U.S. Customs and Border Protection:
In 2015, this committee successfully drafted and reported the Trade
Facilitation and Trade Enforcement Act, which was later signed into law
by President Obama. Thanks to that effort, Mr. McAleenan, if confirmed,
will be the first Commissioner to oversee CBP as a fully authorized
agency.
Mr. McAleenan, welcome to the Finance Committee. We appreciate your
willingness to serve in this important position.
CBP is the United States' unified border agency, charged with
facilitating legitimate trade and travel, while enforcing U.S. trade
laws and securing our borders. There is a great deal of work to be done
to improve enforcement, but this mission should not come at the expense
of legitimate trade and travel. Striking the right balance is vital to
ensuring that the United States remains competitive with the rest of
the world.
Balancing facilitation and security will require CBP to work with
stakeholders in and out of the government. As CBP seeks to strengthen
and streamline trade enforcement, including the protection of
intellectual property rights, the agency must not forget the important
role that the private sector can play. As an example, the private
sector uses information that CBP shares on counterfeits stopped at the
border to prevent future shipments from happening. The private sector
can also alert CBP to importers trying to circumvent our anti-dumping
and countervailing duty laws.
Coordination with other government agencies is also important.
For example, the international mail system is used to traffic
narcotics, counterfeits, and other products that pose health and safety
risks to Americans. Congress authorized the Postal Service and CBP to
collect electronic information on postal shipments in 2002, and these
agencies must use this authority to close this security gap.
CBP must also ensure that its regulations clearly outline the
rights and responsibilities of stakeholders.
For example, the Trade Facilitation and Trade Enforcement Act of
2015, the law I referred to earlier, improved enforcement against goods
manufactured with forced labor. CBP needs to update its regulations to
inform stakeholders about the type of information necessary to make a
proper allegation against an import and to provide necessary guidance
for stakeholders to address such allegations.
Long story short, Mr. McAleenan has a tough job ahead of him.
However, I believe he is well-prepared and well-qualified to serve in
this capacity, and I look forward to discussing his qualifications and
his views here today.
______
Letter Submitted by Hon. Mazie K. Hirono, a U.S. Senator From Hawaii
State of Hawaii
DAVID Y. IGE, GOVERNOR
October 13, 2017
The Honorable Orrin G. Hatch, Chairman
Committee on Finance
U.S. Senate
219 Dirksen Senate Office Building
Washington, DC 20510
Re: Hearing to consider the nomination of Kevin K. McAleenan, of
Hawaii, to be Commissioner of United States Customs and Border
Protection, Department of Homeland Security; Nomination Number: PN489-
115
Dear Senator Hatch:
I am writing to provide my wholehearted support for the nomination of
Acting Commissioner Kevin K. McAleenan to become the next Commissioner
of the United States Customs and Border Protection (CBP), Department of
Homeland Security. Through Acting Commissioner McAleenan's leadership,
technical knowledge, and perseverance, we successfully reinstated CBP
service to the Kona International Airport at Keahole, enabling the
first nonstop foreign arrivals from Japan to Kona since 2010. The
resumption of these flights to Kona has a wide-ranging, positive impact
on Hawaii Island and the State as a whole by boosting tourism spending,
creating jobs and generating millions of dollars for our economy.
Acting Commissioner McAleenan has always exhibited a keen desire to
serve the public with the spirit of aloha. In my personal dealings with
Acting Commissioner McAleenan, he has shown the highest level of
character and commitment to his role in CBP. He was recognized for his
leadership when he received the 2015 Presidential Rank Award and the
2005 America Medal, Call to Service Award.
I respectfully request that you confirm him as the next Commissioner of
the United States Customs and Border Protection.
With warmest regards,
David Y. Ige
Governor, State of Hawaii
______
Prepared Statement of Hon. Kevin K. McAleenan, Nominated to be
Commissioner, Customs and Border Protection, Department of Homeland
Security
Mr. Chairman, Ranking Member Wyden, and distinguished Senators of
the committee, thank you for considering my nomination to lead U.S.
Customs and Border Protection.
I am humbled by and grateful for the President's nomination and
would like to take this opportunity to thank President Trump, Chief of
Staff Kelly, and Acting Secretary Duke for the faith and confidence
they have placed in me.
I was raised in a family of public servants, each member drawn to a
cause and driven to make a difference. My father, whose service began
in the U.S. Army, 82nd Airborne, continues to serve the public today--
at 80 years strong--in the LA County Mental Health System. My mother
and brother have worked in the university and public school systems for
years, working to help at-risk youth achieve educational opportunities.
And my wife, who dedicated several years early in her career working
for the Department of Homeland Security in the United States Secret
Service.
For me, the call to service came on September 11th. I was
extraordinarily fortunate to--almost immediately--have the opportunity
to help lead a new focus on counterterrorism within the U.S. Customs
Service, and then support the transition to our unified border security
agency as U.S. Customs and Border Protection within the Department of
Homeland Security.
Over the past 15 years, I have been able to participate in the
dynamic evolution of the Agency, and I am honored to have had key
opportunities to contribute to that transformation, both at
headquarters and in the field. In my management and leadership roles, I
have found it most valuable and rewarding to engage with, support, and
advocate for the operators--the CBP Officers, Border Patrol Agents, Air
and Marine Pilots and Interdiction Agents, Trade and Agriculture
Specialists, and mission support personnel--accomplishing our mission
on the front line.
The men and women of CBP, operating in every State and 40 countries
globally, are the heart of our organization and are some of the finest
professionals in government service anywhere in the world. If
confirmed, it would be the greatest privilege of my professional life
to represent, and continue serving alongside, them as Commissioner.
In addition to its people, CBP has a strong foundation of legal
authorities, operational capabilities, and mission-focused culture, but
much more needs to be done to enhance its trade facilitation and
enforcement, counterterrorism, and border security missions. As an
indispensable national security partner, and the Nation's second
largest revenue-collecting source, CBP must continue to innovate to
accomplish its complex and critical tasks and to recruit and sustain
the world-class workforce it needs.
If confirmed, working closely with this committee and our
stakeholders, I am committed to addressing these challenges and to
supporting CBP's dedicated and extremely hard-working frontline and
support personnel to take our efforts, and our organization, to the
next level.
______
SENATE FINANCE COMMITTEE
STATEMENT OF INFORMATION REQUESTED
OF NOMINEE
A. BIOGRAPHICAL INFORMATION
1. Name (include any former names used): Kevin Kealoha McAleenan.
2. Position to which nominated: Commissioner, U.S. Customs and Border
Protection.
3. Date of nomination: May 22, 2017.
4. Address (list current residence, office, and mailing addresses):
5. Date and place of birth: September 5, 1971, Honolulu, Hawaii.
6. Marital status (include maiden name of wife or husband's name):
7. Names and ages of children:
8. Education (list secondary and higher education institutions, dates
attended, degree received, and date degree granted):
Undergraduate: Amherst College, September 1990 to May 1994;
B.A. cum laude, in political science. Double major in law,
jurisprudence, and social thought. Degree granted in May 1994.
Professional: University of Chicago Law School, September 1995
to June 1998; Juris Doctor granted in 1998.
9. Employment record (list all jobs held since college, including the
title or description of job, name of employer, location of work, and
dates of employment):
Acting Commissioner, U.S. Customs and Border Protection,
Washington, DC, January 2017-present.
Deputy Commissioner, U.S. Customs and Border Protection,
Washington, DC, October 2014 to January 2017 (permanent), March
2013 to October 2014 (acting).
Assistant Commissioner, Office of Field Operations, U.S.
Customs and Border Protection, Washington, DC, December 2011 to
March 2013 (acting and then permanent).
Deputy Assistant Commissioner, Office of Field Operations, U.S.
Customs and Border Protection, Washington, DC, July 2010 to
March 2013.
Executive Director, National Programs, Office of Field
Operations, U.S. Customs and Border Protection, Washington, DC,
May 2010 to July 2010.
Vice president, The Sentinel HS Group, LLC, Vienna, VA,
February 2008 to May 2010.
Area Port Director, Los Angeles International Airport, Office
of Field Operations, U.S. Customs and Border Protection, Los
Angeles, CA, October 2006 to February 2008.
Executive Director, Office of Antiterrorism, U.S. Customs and
Border Protection, Washington, DC, August 2003 to October 2006.
Counselor and Senior Policy Advisor, Office of the
Commissioner, U.S. Customs Service (November 2001 to March
2003), U.S. Customs and Border Protection (March 2003 to August
2003), Washington, DC.
Associate (practicing attorney), Gunderson Dettmer et al., LLP,
Menlo Park, CA, March 2000 to October 2001.
Associate (practicing attorney), Sheppard, Mullin, Richter, and
Hampton, LLP, Los Angeles, CA, November 1998 to February 2000.
Research associate, University of California, Los Angeles, CA,
July 1996 to August 1996.
Legal intern, SGS-Thomson Microelectronics, St. Genis-Pouilly,
France, March 1995 to August 1995.
Legal assistant, Dewey Ballantine, Washington, DC, September
1994 to March 1995.
10. Government experience (list any advisory, consultative, honorary,
or other part-time service or positions with Federal, State or local
governments, other than those listed above):
See positions 1 through 5 and 7 through 9 listed above in
response to question number 9 for a description of government
positions with U.S. Customs and Border Protection and the U.S.
Customs Service.
Additionally, during my tenure at Sentinel HS Group, LLC, I was
engaged on consulting projects for Federal Government agencies.
11. Business relationships (list all positions held as an officer,
director, trustee, partner, proprietor, agent, representative, or
consultant of any corporation, company, firm, partnership, other
business enterprise, or educational or other institution):
From February 2008 to May 2010, I was an officer and partner of
Sentinel HS Group, LLC. During this time, I consulted for a
number of corporations.
I was an associate with two law firms: Gunderson, Dettmer,
Stough, Villenueve, and Hachigian (March 2000-October 2001);
and Sheppard, Mullin, Richter, and Hampton (November 1998 to
February 2000).
12. Memberships (list all memberships and offices held in
professional, fraternal, scholarly, civic, business, charitable, and
other organizations):
Member, California State Bar (inactive).
13. Political affiliations and activities:
a. List all public offices for which you have been a
candidate.
None.
b. List all memberships and offices held in and services
rendered to all political parties or election committees during
the last 10 years.
None.
c. Itemize all political contributions to any individual,
campaign organization, political party, political action
committee, or similar entity of $50 or more for the past 10
years.
Contributions to All Other Political Committees Except Joint Fundraising Committees
----------------------------------------------------------------------------------------------------------------
Contributor Transaction
Name City State ZIP Code Employer Occupation Committee Name Date Amount
----------------------------------------------------------------------------------------------------------------
McAleenan, Marina CA 90292 The Area Port Obama, Barack/Joseph R. 02/23/2008 $300.00
Kevin Del Sentinel Director Biden via Obama for
Rey HS Group America
McAleenan, Marina CA 90292 The Area Port Obama, Barack/Joseph R. 04/05/2008 $500.00
Kevin Del Sentinel Director Biden via Obama for
Rey HS Group America
McAleenan, Marina CA 90292 The Area Port Obama, Barack/Joseph R. 05/15/2008 $500.00
Kevin Del Sentinel Director Biden via Obama for
Rey HS Group America
McAleenan, Marina CA 90292 The Area Port Obama, Barack/Joseph R. 06/29/2008 $500.00
Kevin Del Sentinel Director Biden via Obama for
Rey HS Group America
McAleenan, Marina CA 90292 The Area Port Obama, Barack/Joseph R. 10/15/2008 $600.00
Kevin Del Sentinel Director Biden via Obama for
Rey HS Group America
McAleenan, Vienna VA 22181 The Consultant Oberman, Justin Pereira 12/31/2008 $250.00
Kevin Sentinel via Oberman for
HS Group, Congress
LLC
McAleenan, Vienna VA 22181 Oberman, Justin Pereira 03/17/2009 -$198.00
Kevin via Oberman for
Congress
----------------------------------------------------------------------------------------------------------------
Total $2,452.00
contrib
utions
----------------------------------------------------------------------------------------------------------------
Recipient of Joint Fundraiser Contributions
These Are the Final Recipients of Joint Fundraising Contributions
----------------------------------------------------------------------------------------------------------------
Contributor Transaction
Name City State ZIP Code Employer Occupation Committee Name Date Amount
----------------------------------------------------------------------------------------------------------------
McAleenan, Vienna VA 22181 The Consultant DNC Services Corp./ 10/22/2008 $3,300
Kevin Sentinel Democratic National
HS Group, Committee
LLC
McAleenan, Vienna VA 22181 The Consultant DNC Services Corp./ 11/04/2008 -$3,300
Kevin Sentinel Democratic National
HS Group, Committee
LLC
----------------------------------------------------------------------------------------------------------------
Recipie $0.00
nt
total
----------------------------------------------------------------------------------------------------------------
14. Honors and awards (list all scholarships, fellowships, honorary
degrees, honorary society memberships, military medals, and any other
special recognitions for outstanding service or achievement):
2015, Presidential Rank Award, Distinguished Executive.
2005, Service to America Medal, Call to Service Award.
2014, Secretary's Homeland Security Silver Medal.
2016, Travel Champion, U.S. Travel Association.
2017, Larry Neushotz Memorial Award, for partnership with trade
from OHL.
15. Published writings (list the titles, publishers, and dates of all
books, articles, reports, or other published materials you have
written):
I maintain a public LinkedIn page and post official updates as
Acting Commissioner, CBP.
I do not have any published books or articles.
16. Speeches (list all formal speeches you have delivered during the
past 5 years which are on topics relevant to the position for which you
have been nominated):
Copies of speeches have been provided to the committee.
17. Qualifications (state what, in your opinion, qualifies you to
serve in the position to which you have been nominated):
I believe that my 20 years of combined government, legal,
consulting, and international experience, combined with my
education and training, have prepared me well to serve as
Commissioner, U.S. Customs and Border Protection (CBP). In
almost 15 years in government, I have had the opportunity to
sit at the CBP and Department of Homeland Security leadership
tables and work directly for each CBP Commissioner, and with
all five Secretaries of Homeland Security.
I have served, successfully, at the leadership level of CBP,
first as the Deputy Commissioner/Chief Operating Officer, and
now the Acting Commissioner, for over 4 years combined, leading
CBP through a period of dynamic change, significant resource
constraints, and increasing stakeholder expectations. During
that time, we have refocused effectively on trade facilitation
and enforcement, enhanced our border security and
counterterrorism posture, enhanced the capabilities of the CBP
National Targeting Center and delivered the Single Window-
Automated Commercial Environment, transformed international air
passenger arrivals, and strengthened our organization and
mission support functions.
During my government service, I have had significant experience
leading large international organizations and operations,
including directing a major field operation as Area Port
Director at LAX, the largest operational component of CBP in
the Office of Field Operations, and now, the entire agency with
personnel and activities in all 50 States and more than 50
countries around the world. I have also led an agency-wide
coordination office at Headquarters, which managed strategic
and operational planning, as well as incident management across
all components of CBP, and I have been detailed to interagency
task forces working on national policy. I am well-versed in all
aspects of CBP's operations in the field and its mission
support efforts. And I have led significant international
engagements and successfully negotiated international
agreements as head of delegation for the U.S. Government.
I work closely and effectively with external stakeholders,
including the international trade and travel communities, State
and local governments and law enforcement agencies,
nongovernmental organizations, and interagency partners. I also
attend to oversight recommendations and concerns, partnering
with Congress, the Government Accountability Office, the DHS
Inspector General, the DHS Office of Civil Rights and Civil
Liberties, and the DHS Office of Privacy. CBP has become a more
transparent and responsive organization, and has adopted, on my
watch, best practices for transparency in areas as diverse as
use of force policy and training, and privacy impact
assessments.
At a time when there is tremendous focus on CBP's trade,
counterterrorism, and border security missions, I am prepared
to lead the agency forward in accomplishing administration
priorities and addressing congressional mandates.
The attached curriculum vitae provides further specifics and
details of my qualifications for the position.
B. FUTURE EMPLOYMENT RELATIONSHIPS
1. Will you sever all connections with your present employers,
business firms, associations, or organizations if you are confirmed by
the Senate? If not, provide details.
I am currently a career government employee in the same agency
to which I am being nominated. I have no other employment
associations.
2. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, provide details.
No.
3. Has any person or entity made a commitment or agreement to employ
your services in any capacity after you leave government service? If
so, provide details.
No.
4. If you are confirmed by the Senate, do you expect to serve out
your full term or until the next presidential election, whichever is
applicable? If not, explain.
Yes.
C. POTENTIAL CONFLICTS OF INTEREST
1. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
My wife works for Deloitte, a multinational consulting firm.
While she works for Deloitte Services, an entity solely focused
in the commercial or private sector, a separate component of
her firm does business with the Federal Government, including
CBP. While multiple reviews by ethics counsel have confirmed
that there is no substantive conflict of interest, to avoid any
appearance of conflict, I have maintained screening
arrangements involving Deloitte and recused myself from making
any procurement or source selection decisions involving
consulting work for CBP. I have also signed an ethics agreement
reinforcing this commitment.
2. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In addition to my spouse working at Deloitte, for the past 7
years I have maintained a screening arrangement with my former
firm, Sentinel HS Group, LLC, and have been recused from any
procurement or source selection decisions involving projects
they may be involved in. A recent review by agency ethics
counsel has determined that any past connections are distant
enough, and attenuated to the point where it is not necessary
for a specific screening arrangement to be maintained.
3. Describe any activity during the past 10 years in which you have
engaged for the purpose of directly or indirectly influencing the
passage, defeat, or modification of any legislation or affecting the
administration and execution of law or public policy. Activities
performed as an employee of the Federal Government need not be listed.
None.
4. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
Ethics reviews with counsel have determined that I have no
known substantive or potential conflict of interest. To avoid
even the appearance of conflict due to my wife's employment,
however, I intend to maintain a screening arrangement vis-a-vis
Deloitte, and have entered into an ethics agreement confirming
my impartiality on matters involving their business.
5. Two copies of written opinions should be provided directly to the
committee by the designated agency ethics officer of the agency to
which you have been nominated and by the Office of Government Ethics
concerning potential conflicts of interest or any legal impediments to
your serving in this position.
None.
D. LEGAL AND OTHER MATTERS
1. Have you ever been the subject of a complaint or been
investigated, disciplined, or otherwise cited for a breach of ethics
for unprofessional conduct before any court, administrative agency,
professional association, disciplinary committee, or other professional
group? If so, provide details.
In 2007 (estimated), I was informed that I was briefly a
potential subject of an Office of Special Counsel investigation
into a prohibited personnel practice and was interviewed in
conjunction with the matter. I was later told that the
allegations were not substantiated, and that I, in fact, was no
longer the selecting official when the selection was made.
2. Have you ever been investigated, arrested, charged, or held by any
Federal, State, or other law enforcement authority for a violation of
any Federal, State, county, or municipal law, regulation, or ordinance,
other than a minor traffic offense? If so, provide details.
In April 1987 (age 15), I was briefly taken into custody and
issued a citation for littering, for which a fine was paid.
In August 1989 (age 17), I was briefly taken into custody and
issued a citation for reckless driving, for which I paid a fine
and attended a safe driving class for juveniles.
In January 1994 (age 22), I was briefly taken into custody and
cited for driving while my privilege to drive in the
Commonwealth of Massachusetts was suspended. I was driving on a
valid, current driver's license from the State of California
and was not aware that my privilege to drive in Massachusetts
had been suspended administratively. The suspension was the
result of an unpaid citation from 5 years prior for an expired
inspection sticker. I had received a $50 ticket for that
infraction as a 17 year-old high school student and asked my
mother to pay the ticket for me. Instead, she wrote a letter to
the court stating that we were no longer the owners of the
vehicle and had moved from the Commonwealth. Due to the unpaid
ticket, unbeknownst to me, my privilege to drive in
Massachusetts had been suspended. The matter was resolved by
paying the fine and explaining the situation to a judge.
3. Have you ever been involved as a party in interest in any
administrative agency proceeding or civil litigation? If so, provide
details.
The response provided here is made to the best of my knowledge
and recollection.
I have not been involved, in my personal capacity, as a party
in interest in any administrative agency proceeding or civil
litigation.
I have been involved as a party in interest in the civil
litigation matters listed below, all of which were brought in
my official capacity with U.S. Customs and Border Protection
(CBP); in these cases, I was named as a defendant in my
official capacity along with other senior U.S. Government and
Department of Homeland Security personnel. In gathering the
information for this response, I retrieved case file
information currently available through the Public Access to
Court Electronic Records (PACER) system as well as requested
the assistance of the CBP Office of Chief Counsel in
identifying cases responsive to this request. The information
below has been separated to indicate which cases were filed
during my tenure as Acting Commissioner of U.S. Customs and
Border Protection, which began on January 20, 2017.
As noted in the responses below, some of the cases named my
predecessor, R. Gil Kerlikowske, as a defendant in his official
capacity, and it is my understanding that I am substituted as a
matter of course for Mr. Kerlikowske in those matters, since I
am now the Acting Commissioner. Out of an abundance of caution,
I have included those cases here. In addition, there may be
additional civil cases that name the former Commissioner of CBP
in his official capacity for which a new Commissioner would be
substituted.
Cases Filed Before January 20, 2017:
Bryan, et al. v. United States (D.V.I.) (filed July 23, 2010) (Case No.
1:10-cv-00066-WAL-RM) (case involving border search of cruise ship
cabin).
Although I was not named as a party in this case, I executed an
affidavit for this case in my official capacity. The case was
appealed by plaintiffs to the United States Court of Appeals
for the Third Circuit (Case No. 17-1519), where it is currently
pending.
Perez, et al. v. United States, et al. (S.D. Cal.) (filed June 17,
2013) (Case No. 3:13-cv-01417-WQH-BGS) (action involving cross-border
shooting).
I was dismissed from this case on September 22, 2016.
Additionally, Paredes Nino, et al. v. U.S. Customs and Border
Protection, et al. (S.D. Cal.) (filed Feb. 27, 2013) (Case No.
3:13-cv-00469-WQH-BGS) is a related Federal Tort Claims Act
(FTCA) claim. I was dismissed from this suit on April 14, 2014.
Mares v. United States, et al. (2d Cir.) (filed June 30, 2014;
terminated Oct. 5, 2015) (Case No. 14-2396) (case involving Border
Patrol encounter of individual in New York).
Mares v. United States, et al. (W.D.N.Y.) (filed Oct. 28, 2015;
terminated June 14, 2016) (Case No. 6:15-cv-06656) (action alleging
unlawful arrest and seizure after a roadside interaction involving two
U.S. Border Patrol agents on April 16, 2010).
On the date of the encounter, I was not employed by CBP.
Bramlett v. U.S. Department of Treasury, et al. (E.D. Pa.) (filed Jan.
21, 2016; terminated Apr. 25, 2017) (Case No. 2:16-cv-00257-WB) (action
alleging plaintiff was improperly prevented from submitting shipments
of damaged coins to the U.S. Mint's Mutilated Coin Redemption Program
prior to the Mint's suspension of the program).
Adee Honey Farms, et al. v. United States, et al. (CIT) (filed July 15,
2016; Case No. 16-00127 consolidated with CIT Case Nos. 16-00129, 16-
00130, and 16-00131 on Sept. 21, 2016; amended consolidated complaint
filed Feb. 6, 2017) (action alleging that delinquency interest
collected pursuant to 19 U.S.C. Sec. 1505(d) is subject to distribution
under the Continued Dumping and Subsidy Offset Act (``CDSOA'')).
This case expressly named R. Gil Kerlikowske in his official
capacity as the Commissioner, CBP along with naming the United
States generally and CBP generally.
Christopher Ranch, LLC, et al. v. United States, et al. (CIT) (filed
July 15, 2016; Case No. 16-00129 consolidated with CIT Case Nos. 16-
00127, 16-00130, and 16-00131 on Sept. 21, 2016; amended consolidated
complaint filed Feb. 6, 2017) (action alleging that delinquency
interest collected pursuant to 19 U.S.C. Sec. 1505(d) is subject to
distribution under the CDSOA).
This case expressly named R. Gil Kerlikowske in his official
capacity as the Commissioner, CBP along with naming the United
States generally and CBP generally.
Monterey Mushrooms, Inc., et al. v. United States, et al. (CIT) (filed
July 15, 2016; Case No. 16-00130 consolidated with CIT Case Nos. 16-
00127, 16-00129, and 16-00131 on Sept. 21, 2016; amended consolidated
complaint filed Feb. 6, 2017) (action alleging that delinquency
interest collected pursuant to 19 U.S.C. Sec. 1505(d) is subject to
distribution under the CDSOA).
This case expressly named R. Gil Kerlikowske in his official
capacity as the Commissioner, CBP along with naming the United
States generally and CBP generally.
A & S Crawfish, et al. v. United States, et al. (CIT) (filed July 15,
2016; Case No. 16-00131 consolidated with CIT Case Nos. 16-00127, 16-
00129, and 16-00130 on Sept. 21, 2016; amended consolidated complaint
filed Feb. 6, 2017) (action alleging that delinquency interest
collected pursuant to 19 U.S.C. Sec. 1505(d) is subject to distribution
under the CDSOA).
This case expressly named R. Gil Kerlikowske in his official
capacity as the Commissioner, CBP along with naming the United
States generally and CBP generally.
Jacobsen, et al. v. U.S. Department of Homeland Security, et al. (9th
Cir.) (filed Nov. 29, 2016) (Case No. 16-17199) (challenging
checkpoints and the creation of enforcement zones that exclude
protestors).
The complaint named former CBP Commissioner R. Gil Kerlikowske
in his official capacity.
Janfeshan v. Department of Homeland Security, et al. (E.D.N.Y.) (filed
Dec. 14, 2016) (Case No. 1:16-cv-06915-ARR-LB) (challenge to CBP
encounter of traveler at JFK International Airport).
Anibowei v. Lynch, et al. (N.D. Tex.) (filed Dec. 23, 2016) (Case No.
3:16-cv-03495:.0) (challenge to CBP encounter of traveler at Dallas/
Fort Worth International Airport).
Cases Filed After January 20, 2017:
Unless otherwise noted, these cases relate to implementation of
executive orders that were issued on January 27, 2017 and March 6, 2017
(Protecting the Nation from Foreign Terrorist Entry into the United
States) and remain pending before the court. Cases are listed in
chronological order of date of filing.
Abushamma v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Feb. 8, 2017) (Case No. 1:2017-cv-00488).
Ahmed v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated Jan.
31, 2017) (Case No. 1:2017-cv-00493).
Alqaissi, et al. v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017;
terminated Jan. 30, 2017) (Case No. 1:17-cv-00487-RRM).
Alknfushe v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Feb. 8, 2017) (Case No. 1:2017-cv-00483).
Al Saeedi v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Jan. 30, 2017) (Case No. 1:2017-cv-00484).
Ali Khoshbakhti Vayeghan v. Kelly, et al. (C.D. Cal.) (filed Jan. 28,
2017) (Case No. 2:17-cv-00702-SJO-GJS).
Aziz, et al. v. Trump, et al. (E.D. Va.) (filed Jan. 28, 2017;
terminated June 1, 2017) (Case No. 1:17-cv-00116-LMB-TCB).
Bayani v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Jan. 31, 2017) (Case No. 1:2017-cv-00492).
Noohi v. Trump, et al. (N.D. Ill.) (filed Jan. 28, 2017; terminated
Mar. 20, 2017) (Case No. 1:17-cv-00694); related case with same parties
(filed Jan. 28, 2017; terminated Jan. 31, 2017) (Case No.1:17-cv-
00695); related case with same parties (filed Jan. 28, 2017; terminated
Mar. 21, 2017) (Case No. 1:17-cv-00696).
Darweesh, et al. v. Trump, et al. (E.D. N.Y.) (filed Jan. 28, 2017)
(Case No. 1:17-cv-00480-CBA-LB).
Doe 1, et al. v. Trump, et al. (W.D. Wash.) (filed Jan. 28, 2017;
terminated Jan. 30, 2017) (Case No. 2:17-cv-00126-TSZ).
Emamjomeh, et al. v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017;
terminated Feb. 6, 2017) (Case No. 1:17-cv-00494-CBA).
Hemaidan v. Trump, et al. (N.D. Ill.) (filed Jan. 28, 2017; terminated
Jan. 31, 2017) (Case No. 1:17-cv-00693).
Jalayer v. Trump et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Feb. 1, 2017) (Case No. 1:17-cv-00490-CBA).
Louhghalam, et al. v. Trump, et al. (D. Mass.) (filed Jan. 28, 2017;
terminated Mar. 20, 2017) (Case No. 1:17-cv-10154-NMG).
Rashekhi v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Jan. 30, 2017) (Case No. 1:17-cv-00489-CBA).
Sabounchi v. Trump, et al. (E.D.N.Y.) (filed Jan. 28, 2017; terminated
Jan. 30, 2017) (Case No. 1:2017-cv-00486).
Alinejad v. Trump, et al. (E.D.N.Y.) (filed Jan. 29, 2017; terminated
Jan. 30, 2017) (Case No. 1:2017-cv-00498).
Farmad, et al. v. Trump, et al. (C.D. Cal.) (filed Jan. 29, 2017;
terminated Feb. 28, 2017) (Case No. 2:17-cv-00706-SJO-GJS).
Hassanpour v. Trump, et al. (N.D. Tex.) (filed Jan. 29, 2017;
terminated Jan. 31, 2017) (Case Nos. 3:17-cv-00270-K; 3:17-xc-00269).
Hatahet v. Trump, et al. (E.D.N.Y.) (filed Jan. 29, 2017; terminated
Jan. 31, 2017) (Case No. 1:17-cv-00495-CBA).
Morshed v. Trump, et al. (E.D.N.Y) (filed Jan. 29, 2017; terminated
Jan. 31, 2017) (Case No. 1 :17-cv-00503-CBA).
Ali, et al. v. Trump, et al. (W.D. Wash.) (filed Jan. 30, 2017) (Case
No. 2:2017-cv-00135).
Doe v. Trump, et al. (N.D. Ill.) (filed Jan. 30, 2017; terminated Feb.
17, 2017) (Case No. 1:2017-cv-00770).
Tawfeeq v. U.S. Department of Homeland Security (N.D. Ga.) (filed Jan.
30, 2017) (Case No. 1:17-cv-00353-TCB).
Dhaif Allah Ahmed Mohammed, et al. v. United States of America, et al.
(C.D. Cal.) (filed Jan. 31, 2017; terminated Feb. 3, 2017) (Case No.
2:2017-cv-00788).
Hagig v. Trump, et al. (D. Colo.) (filed Jan. 31, 2017) (Case No.
1:2017-cv-00289).
Badr Dhaifallah Ahmed Mohammed, et al. v. United States of America, et
al. (C.D. Cal.) (filed Jan. 31, 2017) (Case No. 2:2017-cv-00786).
Azimi, et al. v. Trump, et al. (W.D.N.Y.) (filed Jan. 31, 2017;
terminated Feb. 2, 2017) (Case No. 1:17-cv-00096).
Amer Al Hommsi v. Trump, et al. (N.D. Ill.) (filed Jan. 31, 2017;
terminated Feb. 9, 2017) (Case No. 1:2017-cv-00801).
Arab American Civil Rights League, et al. v. Trump, et al. (E.D. Mich.)
(filed Jan. 31, 2017) (Case No. 2:2017-cv-10310).
Abou Asali, et al. v. U.S. Department of Homeland Security, et al.
(E.D. Pa.) (filed Jan. 31, 2017; terminated Apr. 12, 2017) (Case No.
5:2017-cv-00447).
Albaldawi v. Trump, et al. (N.D. Tex.) (filed Jan. 31, 2017; terminated
Mar. 7, 2017) (Case No. 3:2017-cv-00281).
Asgari v. Trump, et al. (D. Mass.) (filed Feb. 1, 2017; terminated June
1, 2017) (Case No. 1:2017-cv-10182).
Unite Oregon v. Trump, et al. (D. Or.) (filed Feb. 1, 2017) (Case No.
3:2017-cv-00179).
Robertson v. Kelly, et al. (W.D. Wash.) (filed Feb. 2, 2017) (Case No.
2:17-cv-00163-RAJ-BAT).
Al-Mowafak, et al. v. Trump, et al. (N.D. Cal.) (filed Feb. 2, 2017)
(Case No. 3:2017-cv-00557).
Zadeh, et al. v. Trump, et al. (D.D.C.) (filed Feb. 3, 2017; terminated
Apr. 18, 2017) (Case No. 1:17-cv-00243-TSC).
Doe, et al. v. Trump, et al. (W.D. Wash.) (filed Feb. 7, 2017) (Case
No. 2:17-cv-00178-JLR).
Pars Equality Center, et al. v. Trump, et al. (filed Feb. 8, 2017)
(Case No. 1:17-cv-00255-TSC) (Administrative Procedure Act case).
Doe, et al. v. Kelly, et al. (9th Cir.) (filed Mar. 3, 2017) (Case Nos.
17-15381; 17-15383) (challenge brought by individuals temporarily held
at Tucson Sector stations).
International Refugee Assistance Project, et al. v. Kelly, et al. (C.D.
Cal.) (filed Mar. 4, 2017) (Case No. 2:17-cv-01761-JLS-AFM).
Atanackovic, et al. v. Kelly, et al. (D.D.C.) (filed Mar. 8, 2017)
(Case No. 1:17-cv-00419-TFH) (Administrative Procedure Act case).
Cancino Castellar, et al. v. Kelly, et al. (S.D. Cal.) (filed Mar. 9,
2017) (Case No. 3:17-cv-00491-BAS-BGS) (complaint challenges process of
alien detention).
International Refugee Assistance Project v. Kelly, et al. (D.N.J.)
(filed Mar. 15, 2017) (Case No. 2:17-cv-01709-JLL).
Doe v. Department of Homeland Security, et al. (3d Cir.) (filed Mar.
15, 2017; terminated Apr. 25, 2017) (Case No. 17-1578).
Universal Muslim Association of America, Inc., et al. v. Kelly, et al.
(D.D.C.) (filed Mar. 24, 2017) (Case No. 1:2017-cv-00537).
Twitter, Inc. v. U.S. Department of Homeland Security, et al. (N.D.
Cal.) (filed Apr. 6, 2017; terminated Apr. 7, 2017) (Case No. 3:17-cv-
01916) (action challenging issuance of CBP summons, voluntarily
dismissed by Twitter one day after it was filed).
Center for Biological Diversity, et al. v. Kelly, et al. (D. Ariz.)
(filed Apr. 12, 2017) (Case No. 4:17-cv-00163-CKJ) (complaint seeking
declaratory and injunctive relief under the National Environmental
Policy Act related to issuance of executive order on January 25, 2017
(Border Security and Immigration Enforcement Improvements)).
Montes Bojorquez v. U.S. Customs and Border Protection, et al. (S.D.
Cal.) (filed Apr. 18, 2017) (Freedom of Information Act litigation).
Am. Drew, et al. v. United States, et al. (CIT) (filed April 18, 2017)
(Case No. 17-00086) (action alleging that delinquency interest
collected pursuant to 19 U.S.C. Sec. 1505(d) is subject to distribution
under the CDSOA).
Hilex Poly Co., LLC, et al. v. United States (CIT) (filed April 20,
2017) (Case No. Case No. 17-00090) (action alleging that delinquency
interest collected pursuant to 19 U.S.C. Sec. 1505(d) is subject to
distribution under the CDSOA).
Rodriguez v. Brooks, et al. (D. Ariz.) (filed Apr. 21, 2017) (challenge
to CBP review of individual's access to secure area at Phoenix Sky
Harbor International Airport).
Other Matters:
I previously served as a witness in an Equal Employment Opportunity
(EEO) case in a matter against DHS, but I was not the selecting
official in that case. Even though I only served as a witness in that
case, I am disclosing it here out of an abundance of caution. In
addition, I was the selecting official in two EEO cases involving non-
selections. One of these matters included one EEO complaint and two
related MSPB appeals. The Office of Chief Counsel of CBP has advised me
that EEOC Management Directive 110 contains restrictions on the
disclosure of information related to a complaint file outside of the
EEO complaint process; if additional information on these matters is
desired, please let me know.
Finally, because of my position as the Acting Commissioner of CBP, I
may be named in the case title or caption of an EEO or Merit Systems
Protection Board (MSPB) case filed by a CBP employee but otherwise
would not have had any involvement in the matter.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, provide details.
No.
5. Please advise the committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination.
Copies of each supportive letter for my nomination have been
supplied to the committee.
E. TESTIFYING BEFORE CONGRESS
1. If you are confirmed by the Senate, are you willing to appear and
testify before any duly constituted committee of the Congress on such
occasions as you may be reasonably requested to do so?
Yes; certainly. I have testified over a dozen times over the
past 6 years, met with or had teleconferences with members of
both houses several dozen times, and given in excess of 50
briefings to members and staff. I would fully intend to
continue, and even enhance my robust communication, and be
responsive to congressional oversight.
2. If you are confirmed by the Senate, are you willing to provide
such information as is requested by such committees?
Yes.
______
Questions Submitted for the Record to Kevin K. McAleenan
Questions Submitted by Hon. Orrin G. Hatch
Question. Over New Year's weekend, CBP's systems crashed, delaying
thousands of travelers and wreaking havoc on the inspection process at
ports of entry. While the system outage was not the result of a
malicious attack, with the improvements technology has made in travel
facilitation, we are becoming more dependent on this type of
technology.
If confirmed, how would you address the need to modernize
technology to improve travel facilitation and while at the same time
being able to address existing travel volume and increased traffic
during peak travel times and projected travel increases at gateway
airports?
Answer. I recognize that maintenance as well as modernization of
technology at our ports of entry (POEs) is critical to ensuring that
CBP can handle high transaction volumes, especially during the holiday
seasons. CBP is committed to enhancing availability in our critical
systems. Additionally, CBP utilizes a layered defense for vetting
travelers arriving in the United States which begins when travel
documents or authorizations are issued and continues as reservation
data and advance passenger information is received from airlines prior
to passengers boarding the plane. Along with backup systems that can be
used when passengers arrive in the United States, the advance vetting
reduces the risk of the system issues noted in the subject report for
vetting and inspecting travelers at our ports of entry.
If confirmed, I further intend to press forward on our
modernization efforts at airports. The success of the Automated
Passport Control and Mobile Passport Control applications, only with
sustained growth in Global Entry, and operational innovations such as
modified egress, have allowed CBP to maintain or reduce wait times
despite continued increases in travelers. With the support of Congress,
we have an opportunity to use biometrics to further enhance the
arrivals process while we also implement biometric exit. These
innovations will be supported by a new cloud infrastructure which will
support better backup processes and reduce downtime.
Question. The Border Interagency Executive Council (BIEC) was first
established by executive order in February 2014 to address
International Trade Data System (ITDS) issues.
Do you believe that this function should be expanded further to
cover all government agencies to address key issues and to work toward
the goal of a true single window?
Answer. I believe that Border Interagency Executive Council (BIEC)
is an important interagency forum that allows participants to address
key issues and enhance our single window efforts from a technical,
operational, and partnership perspective. Representatives from the
departments of Agriculture, Commerce, Energy, Health and Human
Services, Homeland Security, Interior, Justice, State, Transportation,
and Treasury, along with representatives from the Consumer Product
Safety Commission, the Environmental Protection Agency, the Office of
Management and Budget, and the National Security Council regularly
participate in the Border Interagency Executive Council (BIEC)
Principals Meetings.
From February 2014 through December 2016, the U.S. Government's
Partner Government Agencies (PGAs) worked collaboratively through the
Border Interagency Executive Council (BIEC) to deliver the Single
Window and to automate each agency's import and export reporting
requirements through the Automated Commercial Environment (ACE). These
changes underscore the necessity of continued progress required to ease
the submission and management of data required by the U.S. Customs and
Border Protection (CBP) and the Partner Government Agencies (PGA) to
efficiently and securely import or export cargo through the Single
Window.
The BIEC has continued in fiscal year 2017 and 2018 under the
current administration as a significant forum for ongoing coordination
in executing priority projects approved by the BIEC Principals. Such
projects address operational and automation issues relating to U.S.
importing and exporting requirements of the International Trade Data
System (ITDS) Single Window, developed under ACE. With the deployment
of the majority of Single Window core capabilities, the BIEC has
refocused its established BIEC priorities.
At the April 25, 2017, Principals Meeting, the BIEC established
priorities that align with today's trade environment and support a
vibrant and competitive U.S. economy. Each priority is headed by a
Working Group Lead who is responsible for spearheading the work and
managing or delegating Working Group actions. Working Group members
actively participate and contribute to project updates, which are
provided to the BIEC working level on a monthly basis. All government
agencies can be included in working groups or sub-groups as issues
warrant. Consistent with your question, I intend, if confirmed, to
emphasize continued outreach to all Participating Government Agencies
on the existence of this forum and the opportunity to address key
issues relating to the single window in a collaborative interagency
process.
Question. What do you see as the biggest opportunities in the
negotiation to improve customs cooperation with Mexico and Canada,
improve trade facilitation, and strengthen trade enforcement?
Answer. While the Office of the U.S. Trade Representative (USTR)
leads free trade agreement negotiations for the United States, CBP is
also at the negotiating table. The CBP Office of Trade is leading a
team of trade experts from across the Homeland Security enterprise that
participate in the NAFTA 2.0 negotiations, including in discussions
related to customs and trade facilitation provisions and on other
issues that impact CBP's customs operations.
Though CBP cannot speak directly to text proposals that are
actively under negotiation, CBP continues to support USTR by
participating in negotiating sessions, reviewing all of the proposed
NAFTA text through the interagency process, and even drafting some of
our own text to ensure that the new agreement is consistent with our
legal authorities, policies, procedures, and operational realities. CBP
will continue to engage USTR in the negotiation process to obtain a
NAFTA 2.0 that enhances CBP's customs enforcement mission at our
borders while also raising regional trade facilitation standards.
Specifically, CBP seeks NAFTA 2.0 outcomes that reflect CBP's
risked-based approach to customs enforcement, emphasize our focus on
priority trade enforcement issues (including free trade agreement
preferences, intellectual property rights, antidumping and
countervailing duties, wildlife trafficking, and forced labor), enhance
our ongoing trade facilitation efforts with our Canadian and Mexican
partners to further automate, streamline, and harmonize all three
countries' customs processes and procedures, and promotes a regional
approach to security.
Question. The Trade Facilitation and Trade Enforcement Act of 2015
raised the de minimis level to $800, providing additional opportunities
to receive expedited clearance at the U.S. border through section 321.
How is CBP working with other agencies to ensure a smooth process
for clearing low risk shipments expeditiously?
Answer. Facilitation of cargo is a key part of CBP's trade mission.
Streamlining and promoting frictionless trade are CBP's goals
especially in light of changing technologies and business processes.
CBP has been working closely with the trade community and participating
government agencies to facilitate low value cargo while ensuring that
shipments facilitated by e-commerce are complying with CBP and other
agency regulatory requirements.
Question. CBP is engaged in discussions with the trade about
automating the section 321 de minimis procedures across all modes of
transportation.
What procedures are being adopted in regards to the land, sea, and
rail shipments?
Answer. Recognizing the intent of Congress to support frictionless
trade, particularly in the e-commerce environment through the increase
of the de minimis to $800, CBP is working with both the trade community
and PGAs in providing a streamlined mechanism for low value shipments.
Our operational approach is that the bulk of shipments will not require
significant advanced information to allow CBP to assess risk. CBP will
provide an automated mechanism to allow the trade community to provide
additional information about shipments which have other agency
regulatory requirements--allowing other government agencies to assess
the risk and ensure their regulatory requirements are met.
Question. GAO found that CBP generally had not met the staffing
levels set by Congress for trade positions and that these shortfalls
could impact CBP's ability to effectively enforce trade laws (e.g.,
fewer cargo inspections).
If confirmed, what would be your plan to meet the staffing levels
set by Congress for trade positions?
Answer. I plan to work closely with both the Senate Finance and
Appropriations Committees to ensure our full staffing for trade
positions is appropriately resourced and that CBP's recruiting and
hiring efforts prioritize these critical positions. CBP has worked to
reduce shortfalls in critical operational trade occupations over the
last year, as well as emphasizing closing the remaining gaps within the
Office of Trade. CBP has also initiated a modeling effort to
demonstrate the economic benefits of trade staffing.
We remain committed to working on strategies to ensure full
staffing of all authorized positions. For example, CBP has made some
strides in staffing for Import Specialists, and as of November 7, 2017,
has made 43 tentative selections to fill the current 93 vacancies. Of
these, ten (10) have an entry on duty (EOD) dates set. Selections
remain in progress for the remaining 50 vacancies which we anticipate
completing by the end of Calendar Year 2018.
CBP has dedicated a significant amount of resources to accomplish
the requirements within the law, but the reality is that we simply were
not staffed to meet those requirements provided for to timely meet some
of the goals of the Trade Facilitation and Trade Enforcement Act of
2015. Additionally, we are working to better define our existing
challenges which have resulted in gaps in the trade related positions,
set by the SAFE Port Act of 2006 and the Homeland Security Act, and are
creating a long-term hiring and resource plan to support and increased
authorized trade position on a sustained basis with a target for
completion by the end of February 2018. Toward that end, the
President's FY 2018 budget request included funding for an additional
140 positions across multiple disciplines in the Office of Trade to
support duty evasion, intellectual property rights, and forced labor
enforcement among other priorities.
Question. In its efforts to strengthen trade enforcement efforts,
what is CBP doing to ensure that performance targets are included (when
applicable) in plans covering high-risk issue areas and plans to
develop a long-term hiring plan for trade positions?
Answer. CBP is working to better define our existing challenges
which have resulted in gaps in the trade related positions, set by the
SAFE Port Act of 2006 and the Homeland Security Act, and are creating a
long-term hiring and resource plan to support trade position hiring on
a sustained basis, with a target for completion by the end of February
2018. Significantly, the fiscal year 2018 President's budget request
includes 140 positions that will be dedicated to implementing various
parts of TFTEA, including trade enforcement, security, and facilitation
positions.
CBP has also taken steps to quantify the impact these positions to
the U.S. economy through the development of an Economic Benefit Model
(EBM). The model is based on an activity-based costing framework, and
economic theory and production functions reliant on data sourced from
the Federal Government, academia, and global trade organizations and is
used by OT as a decision support tool to inform planning processes,
allocate resources across directorates, and prioritize initiatives and
investments. Using FY 2016 inputs and data from the EBM aligned to the
positions outlined above, OT estimates a potential economic impact of
$2.3 billion in benefits to producers, consumers, and government. These
benefits are a measure of increased production and higher profits for
domestic industry, resulting from the flow of cheaper intermediate
goods (trade facilitation), and protection for domestic producers from
competition against illegal and subsidized goods (trade enforcement and
security). I would welcome the opportunity to provide a more in-depth
briefing on the EBM to you or your staff.
Question. CBP has identified the need to hire over 2,000 CBP
Officers.
How does CBP intend to address those hiring needs? How does CBP
plan to deploy these officers in key growth areas, such as the Salt
Lake City airport, which has not seen growth in officers in the past
few years despite the increase in passenger volume and forecasted
growth in cargo?
Answer. CBP is fully committed to refining our hiring process and
finding better, more effective ways to recruit and retain frontline and
mission support personnel. I recognize our staffing challenges not only
impact the Salt Lake City region, but the Nation as a whole.
CBP remains focused on having the right mix of resources at and
between our Nation's POEs. As the CBP mission continues to evolve to
meet the threat to the Nation and facilitate legitimate trade and
travel, we must continually assess personnel staffing requirements. The
WSM is a data-driven model that incorporates the most recent year's
workload data to determine staffing requirements and considers factors
for future facility enhancements and projected volume growth in cross-
border commercial and passenger traffic. Updated WSM results continue
to show a need for additional OFO capability to fully meet the
standards set by statute, regulation, and CBP policies, assuming
maintenance of current processes, procedures, technology, and
facilities. The most recent results--factoring in the additional 2,000
CBPOs funded by the FY 2014 Omnibus--show a need for 2,516 additional
CBPOs through FY 2018. The administration's submission of the updated
2017 WSM demonstrated an important commitment to the requirements it
identified, as did the statement of intent in the President's FY18
budget to submit proposals for authorizing language that would provide
user fee funding to address the gap as we have in past years.
At the same time, CBP is continuing to address 1,132 CBPO positions
that are vacant as of September 30, 2017. It is my top mission support
priority, and will remain so if confirmed, to achieve full authorized
and funding staffing levels for all frontline law enforcement
positions. Additionally, CBP continues to implement Business
Transformation Initiatives (BTIs) by focusing on faster processing in
the air, pedestrian, vehicle, and cargo environments. CBP makes a
concerted effort to implement the newest and most advanced technologies
at the Nation's POEs to create efficiencies. Along with technological
advancements, CBP is deploying biometrics and processing enhancements
and expanded Trusted Traveler Programs. These transformative
initiatives and technological advancements provide the platform from
which CBP can achieve operational success in the face of increased
border and air traffic, budget constraints, and demand for new and
expanded services at existing and proposed POEs. CBP's BTIs have saved
more than 1 million inspectional hours through FY 2016 and are
estimated to save more than 500,000 inspectional hours or (over 400
CBPOs) through FY 2018.
To support increased staffing needs, CBP continues implementation
of alternative funding strategies to increase revenue sources. CBP
continues to support the Donations Acceptance Program and the
Reimbursable Services Program made permanent with the enactment of the
Cross-Border Trade Enhancement Act of 2016 (Pub. L. 114-279). Many
airports have taken advantage of and benefited from this program. Salt
Lake City International Airport (SLC) qualifies for additional overtime
hours to support expanded staffing during selected hours or to conduct
operations outside of the operational day. Our Office of Field
Operations has engaged SLC management on this opportunity, and the
airport may submit an application at any time, and CBP will review it
at the following evaluation window.
Question. CBP has recently had significant outreach with the NGO
community regarding forced labor issues.
Can you please describe CBP's outreach plan to engage the private
sector and stakeholder community in the development of forced labor
policies and procedures and to improve CBP's targeting?
Answer. CBP has taken a number of steps to enhance enforcement of
forced labor in supply chains since the Trade Facilitation and Trade
Enforcement Act of 2015 (TFTEA) was enacted. CBP is committed to
working with Congress, private sector, Civil Society Organizations, and
interagency stakeholders to craft the most effective approach to
modernize the regulations to protect human rights and to protect U.S.
workers from unfair competition.
CBP has undertaken an active communications effort to ensure
importers are aware of the risks associated with forced labor, what
their compliance responsibilities are and how they can validate that
their supply chains are free of forced labor. These efforts include
sustained engagement with the Commercial Operations Advisory Council
and public dialogue on the issues. We want to ensure that importers and
the broader trade community have clarity on forced labor concerns. CBP
published technical corrections to the forced labor regulations to
remove the consumptive demand loophole and is now outlining substantive
changes to allow for an agile enforcement response. I have further
directed the Customs Trade Partnership Against Terrorism team to ensure
that forced labor issues are incorporated into their engagement with
our trusted supply chain partners.
My staff is actively engaged in the DHS-led Forced Labor
Interagency Working Group, which includes ICE, Department of State,
DOJ, U.S. Agency for International Development, Department of Treasury,
General Services Administration, and Department of Labor. CBP works
closely with these agencies, when appropriate, to evaluate forced labor
cases and allegations.
We have also leveraged intelligence units within our Office of
Trade and OFO's National Targeting Center, Counter Networks Division.
In the last 2 years, CBP has detained $6,307,926 in goods suspected of
violating 19 U.S.C. Sec. 1307. Most recently, CBP detained 11 shipments
of seafood suspected of being processed by companies in China using the
labor of North Korean nationals. The shipments are valued at $564,775
and are detained at four ports of entry. Further, OFO issued an Action
memorandum to the Centers directing them to issue requests for
information to approximately 235 importers. This effort focuses on
manufacturers and importers with links to the areas within China
suspected of using the labor of North Korean nationals to manufacture
goods destined for the United States.
CBP also continues to meet with Civil Society Organizations to
ensure we are aware of trends, insights, and concerns that these groups
possess into forced labor issues. If confirmed, I will continue to
implement aggressive and broad-based enforcement efforts to address the
challenge of goods manufactured with forced labor entering our supply
chain.
Question. What steps will CBP continue to take to ensure the trade
community understands how it is approaching enforcement of the forced
labor import prohibition to improve transparency and deterrence
together?
Answer. CBP has taken a number of steps to enhance enforcement of
forced labor in supply chains since TFTEA was enacted and to
communicate about these efforts to the trade community. CBP engaged
specific industry sectors through our Centers of Excellence and
Expertise and our regulatory auditors to conduct bi-directional
education and assess best practices of risk mitigation and compliance
related to forced labor in the global supply chain.
CBP has undertaken an active communications effort to ensure
importers are aware of the risks associated with forced labor, what
their compliance responsibilities are and how they can validate that
their supply chains are free of forced labor. These efforts include
sustained engagement with the Commercial Operations Advisory Council
and public dialogue on the issues. We want to ensure that importers and
the broader trade community have clarity on forced labor concerns. CBP
published technical corrections to the forced labor regulations to
remove the consumptive demand loophole and is now outlining substantive
changes to allow for an agile enforcement response. I have further
directed the Customs Trade Partnership Against Terrorism team to ensure
that forced labor issues are incorporated into their engagement with
our trusted supply chain partners.
If confirmed, I remained committed to ensuring that CBP continues
to engage with the trade community in order to ensure transparency and
foster our mutual goals of predictability, consistency, and deterrence
of unfair or violative trade practices in supply chains.
Question. It continues to be a challenge for CBP to acquire data
elements to get advanced electronic data from the U.S. Postal Service
to better target shipments.
What steps is CBP taking to address these issues so that CBP can
better target mail shipments to prevent violative and dangerous goods
from entering our country?
Answer. CBP is working closely with the United States Postal
Service (USPS) to better target mail shipments destined for the United
States. CBP and USPS signed an MOU on September 1, 2017, outlining
roles and responsibilities between the agencies and better aligning out
enforcement efforts. Additionally, I have worked closely with the
Postmaster General, Megan Brennan, meeting or speaking with her
numerous times in the past 2 months, to cultivate a more robust
relationship and enhance our ability to function in tandem.
Toward that end, CBP and the U.S. Postal Service (USPS) are
pursuing joint priorities, including, first and foremost, the increased
collection of advanced electronic data (AED) on mail parcels, along
with technology and facility enhancements, and collaborative inspection
and investigative efforts. With respect to AED, CBP has offered to
support USPS capacity building and diplomatic efforts with foreign
postal partners. Recently, increases in submission of AED on parcels
from China has resulted in a dramatic increase in the total percentage
of AED received by the U.S. Government--now over 40 percent. Our
discussions also include the impact of relevant legislation and
outreach to international partners and world organizations such as the
Universal Postal Union to allow for the collection of advanced
electronic data or AED.
Furthermore, CBP is currently conducting special operations in the
International Mail Facility environments throughout the year focusing
on intellectual property rights and fentanyl enforcement and we will
continue to conduct these operations. CBP is also looking to increase
staffing at the International Mail Facilities to help address the
increased volume of shipments.
Question. Section 303 of the Customs bill closes a statutory
loophole regarding the seizure and disclosure of information related to
circumvention devices.
Can you please provide us with CBP's timeline for implementation of
this new provision?
Answer. CBP has completed drafting of the Notice of Proposed
Rulemaking necessary to make this change, and is working through the
Office of Management and Budget-led interagency process to finalize and
publish that rule in the Federal Register. While I cannot offer a
specific timeline with confidence, I assure you that, if confirmed, I
will pursue finalization of the rule expeditiously, as we continue to
do with all of the regulatory changes directed by the Trade
Facilitation and Trade Enforcement Act of 2015.
Question. You recently noted that CBP is in the process of
developing a new strategy to address the rapid growth of e-commerce.
How do you envision this new strategy affecting CBP's current IPR
enforcement efforts?
Answer. We believe the strategy should engage new partners in e-
commerce supply chains to ensure full compliance with trade laws and
regulations.
The most significant challenges to CBP in the area of trade
enforcement come from the dramatic changes ongoing in the global supply
chain. The most prevalent is the dramatic growth in e-commerce and
direct to consumer imports. E-commerce is largely responsible for the
increase in the volume of small shipments entering the U.S. stream of
commerce. As the agency with physical control over U.S. imports, CBP
must adapt to the growth of imports through e-commerce business. The
potential threat of harm to the public due to the challenges in the e-
commerce environment is real. From terrorist plots that have involved
small packages to the seizure of thousands of non-compliant goods with
health and safety issues or intellectual property rights violations,
CBP must continue to address threats in e-commerce shipments to preempt
such risks to the Nation's safety and security.
To address these evolving challenges, CBP officially established
the E-Commerce and Small Business Branch within the Office of Trade and
directed it to develop and implement a new e-commerce strategy. The
developed strategic goals and objectives, will position CBP to address
the challenges in the e-commerce environment now and into the future.
We believe the strategy should engage new partners in e-commerce supply
chains to ensure full compliance with trade laws and regulations.
Additional intellectual property rights (IPR) exams and special
operations targeting the small package environment will help to address
the critical risk of counterfeit goods. By leveraging a strong
partnership with Homeland Security Investigations at the National
Intellectual Property Rights Center (IPRC), CBP will direct targeting
and operational resources to areas of greatest concern. CBP will also
work with the U.S. Postal Service to increase the amount of advanced
electronic data received from foreign posts and work to identify
emerging technologies that can provide enhanced inspection capabilities
of parcels.
______
Questions Submitted by Hon. Richard Burr
adcvd imports
Question. Customs and Border Protection has the role of collecting
antidumping and countervailing duties on imports that are unfairly
subsidized or sold at less than fair market value. These duties are
important to level the playing field for American producers who would
otherwise be faced the adverse impact of unfair trade practices. A GAO
report from last year estimated that there were $2.3 billion in anti-
dumping and countervailing duties owed to CBP, and I've written to DHS
before on the effect uncollected duties of wooden bedroom furniture has
on manufacturers in my State. I realize there are a number of
challenges to collecting these duties, and I appreciate the work that
CBP has done to address the outstanding duties owed. However, for our
trade remedies to be meaningful, it is essential that they be enforced,
and the failure to collect these duties harms North Carolina
businesses.
Can you assure me that if confirmed, you will continue to make the
collection of outstanding duties a priority?
Answer. Yes, if confirmed, I can assure you that I will continue to
make collection of outstanding duties a priority. To that end, as part
of CBP's enforcement related to the Enforce and Protect Act (EAPA), CBP
has initiated over 14 EAPA investigations, including some related to
wooden bedroom furniture, all of which have resulted in interim
measures. I am committed to continuing this enforcement effort.
Question. And can you explain how you will improve upon CBP's
record in duty collection?
Answer. Duty collection is a critical, but complicated, component
of anti-dumping/countervailing duty (AD/CVD) enforcement. In order to
be more effective in our enforcement efforts, CBP is exploring creative
ways to adjust bonding requirements to mitigate the risk of non-payment
that certain importers present. For example, CBP has identified options
for risk-based bonding as part of its implementation of section 115 of
the Trade Facilitation and Trade Enforcement Act (``TFTEA'') (Pub. L.
114-125). CBP's intent is to statistically predict the risk of future
non-payment of duties, taxes, and fees and adjust bond amounts to
protect government revenue and apply AD/CVD orders effectively. In
addition, as required by Executive Order 13785, the Department of
Homeland Security (DHS) has submitted a report to the White House
outlining a plan for risk-based bonding to provide greater security for
payments of final AD/CVD. CBP has automated the securing of bonds
within ACE (e-Bonds) that centralizes CBP's management of bonds and
ensures bonds are properly executed thus facilitating the collection of
monies owed secured by bonds.
When CBP identifies revenue risks from AD/CVD imports, CBP is
proactively requesting additional security in the form of single
transaction bonds from importers. Despite repeated court challenges,
CBP continues these efforts to secure AD/CVD revenue. CBP has also been
successful in recent years in taking sureties to court to collect
delinquent AD/CVD when sureties do not fulfill their legal obligation
to pay amounts owed. CBP has had great success in aggressively pursuing
sureties in these cases to establish a clear monetary incentive for
sureties to make prompt payment upon demand. CBP will continue to
actively pursue collection of uncollected AD/CVD duties against
delinquent importers and sureties.
For certain high-risk commodities, CBP is also taking steps, such
as ``live entry'' for certain steel products, to ensure payment of
duties prior to the time of release.
Through implementation of the Enforce and Protect Act (EAPA), CBP
has also successfully halted the flow of illicit goods within months of
initiating the investigations into evasion of the antidumping and
countervailing duty orders. For example, in the EAPA investigations
into the transshipment of wire hangers through Thailand and Malaysia
from China for nine U.S. importers, CBP stopped the evasion of over $33
million in antidumping duties annually.
______
Questions Submitted by Hon. John Cornyn
Question. As you know, through the first 4 months of 2017 we saw a
significant decline in the number of apprehensions made on the
Southwest border. This apprehension metric helps us determine how
secure our border is. However, recently CBP has reported an upward
trend in apprehensions which suggests that there might be a surge of
aliens again trying to enter the United States illegally.
To what do you attribute this steady increase in border
apprehensions?
Answer. I believe that a number of factors are driving border
crossing trends this year. The first 4 months after the inauguration of
President Trump resulted in a sharp decrease in apprehensions, largely
due to the administration's clear messaging on the intent to enforce
immigration laws. The increases we have seen over the last several
months are comprised primarily of family units and unaccompanied alien
children (UACs) from the Northern Triangle countries of Central
America. As the administration recently noted in its release of
immigration principles and policies, systemic improvements are needed
in the process for handling aliens asserting credible fear at the
border, UACs, and other populations, including increased immigration
court capacity. The recent increases may also be partially attributable
to U.S. seasonal labor demands and traditional push/pull factors, as
well as active efforts by human smuggling organizations to increase
volume.
Question. Border security and ``the wall'' have been a main topic
of discussion for this administration. In my bill--the Building
America's Trust Act--I provide for a multi-layered approach to border
security, focusing not only on physical barriers, but also on
technology like drones, ground and vehicle radar, and other types of
surveillance equipment to help the border patrol quickly identify and
apprehend those seeking to enter the United States illegally.
Do you believe that only a physical barrier, such as a wall, is the
best path forward to securing our southern border?
Answer. Securing the border requires an integrated approach
including infrastructure such as border wall and road access,
surveillance technology, response capability and personnel. The U.S.
Border Patrol maintains a Capabilities Gap Analysis Process that begins
with input from the sector level, and has identified the necessary
capabilities to secure the border. The four key Master Capabilities
are: Domain Awareness, Impedance and Denial, Access and Mobility, and
Mission Readiness. The border wall provides an important capability to
impede or deny illegal crossings in those areas where it is applied, as
demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but it is
not effective alone, and is not an appropriate solution for every area
of the border. Where it is applied, the border wall must be supported
by the ability to detect activity through advanced surveillance
technology, and the ability to respond effectively with mobile, trained
personnel. In this way, the most effective means of achieving
operational control of the border does not rely on any single
capability, piece of technology, or infrastructure. It is a mixture of
all of those things, executed by a properly trained and properly
equipped mission ready workforce.
Question. Would you agree that my multi-layered approach is the
best way to ensure that CBP gains 24/7 situational awareness and
operational control of the border?
Answer. Yes, layering resources strategically according to
operational requirements enables the U.S. Border Patrol to detect,
identify, classify, and track persons entering the United States
illegally between the POEs and effect the appropriate response and
resolution to secure our Nation's borders. This approach utilizes
manpower, technology, and tactical infrastructure deployed in areas of
greatest risk to ensure the highest degree of success. A constant cycle
of conducting intelligence analysis, capability gap analysis, and
mission analysis ensures that resources are providing the expected
results, or need revisiting.
Question. As you know, the U.S. Government currently employs many
various forms of technology along the southern border. Everything from
fixed and mobile tower systems with radars and cameras, to UAVs, to
Aerostats, to mention a few. But I understand that integrating all of
this available technology and information has been a challenge and in
some cases impossible.
Do you have a plan to integrate the available resources to provide
CBP the best possible situational awareness for gaining and maintaining
operational control of the border?
Answer. This is an important area of effort for CBP, directly
contributing to a key capability for border security. It would be a
priority for me, if confirmed, and we have numerous efforts ongoing in
this area. For example, CBP developed the Tracking, Sign-cutting, and
Modeling (TSM) application as a solution to the Border Patrol's problem
of sorting, organizing, presenting, and disseminating its massive
volume of intelligence information. TSM is a capability shared between
the Intelligent Computer Assisted Detection (ICAD) and Enterprise
Geospatial Information Services (eGIS) development teams. TSM
facilitates comprehensive geospatial monitoring of ground detection and
tracking operations and provides situational awareness to all relevant
parties. TSM tracks incursion events, rolling-up every intelligence
source available, relating them to specific groups, and displaying it
all on an eGIS map. Existing technologies sensor information is either
manually (IFT and RVSS) or automatically (UGS and i-UGS) reported into
TSM. Currently, efforts are underway to integrate existing sensor
capabilities to eliminate operator manual inputs into TSM to provide
CBP the best possible situational awareness for gaining and maintaining
operational control of the border. TSM also has plans to more fully
integrate with the Border Patrol Enforcement Tracking System (BPETS)
and e3, CBP's portal that collects and transmits biographic, encounter,
and biometric data of individuals encountered at the border.
A vital component of DHS's domain awareness capabilities, AMO's Air
and Marine Operations Center (AMOC) integrates surveillance
capabilities and coordinates a response to threats to national security
with other CBP operational components, including USBP, Federal, and
international partners to detect, identify, track, and support
interdiction of suspect aviation and maritime activity in the
approaches to U.S. borders, at the borders, and within the interior of
the United States. Coordinating with extensive law enforcement and
intelligence databases and communication networks, AMOC's command and
control operational system, the Air and Marine Operations Surveillance
System (AMOSS), provides a single display capable of processing up to
700 individual sensor feeds and tracking over 50,000 individual targets
simultaneously. The eight TARS sites represent approximately 2 percent
of the total integrated radars in AMOSS, yet were able to account for
detecting 53 percent of all suspect target detections. As we continue
to deploy border surveillance technology, particularly along the
Southwest border, these investments in fixed and mobile technology, as
well as enhancements of domain awareness capabilities provided by the
AMOC allow CBP the flexibility to shift more agents from detection
duties to interdiction of illegal activities on our borders.
Perhaps the most important advancements come in the area of data
integration and exploitation. Downlink technology, paired with the
BigPipe system, allows AMO to provide a video feed and situational
awareness to its law enforcement partners in real-time. In addition,
the Minotaur mission integration system will allow multiple aircraft to
share information from multiple sources, providing a never before seen
level of air, land, and maritime domain awareness. As the Minotaur
system evolves, it will provide even greater awareness for a greater
number of users.
AMO also combats airborne and maritime smuggling with an integrated
long-range radar architecture comprised of ground-based radars and
elevated radars deployed on tethered aerostats. AMO, in partnership
with DOD, operates and maintains a network of more than 120 long range
radars providing a wide-area, persistent surveillance capability to
detect and identify cooperative and non-cooperative aircraft traveling
within or near the United States and crossing its borders. This network
provides AMO the capability to detect and respond to air and maritime
threats to the homeland, including organizations attempting to traffic
contraband into the United States.
AMO's Tethered Aerostat Radar System (TARS) monitors the low-
altitude approaches to the United States and denies this airspace for
illicit smuggling. With eight aerostat sites--six along the Southwest
border, one in the Florida Keys, and one in Puerto Rico--the TARS
elevated sensor mitigates the effect of the curvature of the earth and
terrain-masking limitations associated with ground-based radars,
enabling maximum long-range radar detection capabilities.
Question. One of the biggest issues I hear about from agents in the
Rio Grande Valley of Texas is the inability to fully eradicate the
invasive and nonnative carrizo cane and salt cedar plants. These plants
must be removed from the riverbanks in order to provide full visibility
and sightlines for our agents. In my border bill, I require DHS to work
with the relevant Federal, State, and local agencies to begin
eradicating carrizo cane and salt cedar along the Rio Grande River.
How long would it take for DHS to develop a plan and contract with
the relevant government and private entities to begin eradicating this
invasive plants along the Rio Grande?
Answer. In 2007, CBP partnered with DHS's Science and Technology
Directorate and the U.S. Department of Agriculture (USDA) to execute
the carrizo cane control program to address carrizo cane (Arundo donax)
along the Southwest border.
A pilot study was completed in 2009 along a stretch of the Rio
Grande River in the USBP's Laredo sector. The study was conducted to
evaluate the effectiveness of two methods of cane control, the
mechanical removal of cane and cutting of cane stems and applying
herbicide. The pilot study provided CBP and USDA with valuable removal
method performance.
Subsequent to the pilot study, CBP funded USDA to research and
develop a biological control method for cane using Arundo wasp and
Arundo scale, which feed on the roots and stems of the cane and
suppress new growth. During initial studies, these insects were
released via aircraft as well as dispersed by USDA personnel in heavily
infested sections of the Rio Grande River Basin.
In 2012, USDA conducted additional pilot studies of topping cane at
various heights to determine how best to maximize the effectiveness of
the biological control agents. Through these studies, USDA determined,
the biological control agents are most effective when the cane is
topped at 3 feet.
Through the pilot studies completed by USDA, CBP, and USDA have
developed a combined strategy of mechanical topping and biological
control that provides immediate visibility for BPAs into areas of cane
and aids in the long term control. Because control of cane is difficult
and complete eradication may be unrealistic, primary objectives for
managing cane are focused on suppression of existing infestations and
reducing the spread of cane through control of healthy plant
communities.
Last year, CBP participated in a number of coordination meetings
and calls with interested State, local, and congressional stakeholders
focused on educating stakeholders on CBP efforts and maintaining a
continued dialogue and information among stakeholders.
As of December 2016, CBP has realized a reduction of approximately
32 percent in above ground biomass with the eradication of 2.5 million
tons of carrizo cane. Visibility into remaining cane is now
approximately 24-36 feet. We anticipate receiving updated data from
USDA on the reduction of cane is expected in December 2017.
CBP and USDA anticipate executing an inter-agency agreement by the
end of the second quarter of FY 2018 to execute a program for the
mechanical topping of carrizo cane along the Rio Grande River. The cane
control area encompasses five U.S. Border Patrol (USBP) sectors: El
Paso, Big Bend, Del Rio, Laredo, and Rio Grande Valley. CBP will
identify priority areas to be addressed by several USDA topping crews.
USDA crews will mechanically top (i.e., trim) the cane to a height of 3
feet (approximately 1 meter) using a mechanical cutter bar mounted on a
four-wheel drive tractor. A small amount of cane control may also occur
with hand-held trimmers. The mechanical cane control method will
rapidly decrease cane height to ensure sufficient visibility of
critical areas in the Rio Grande basin and provide access to these
areas by BPAs and allow the biological control agents to be most
effective for the long term eradication of carrizo cane.
This current approach is limited by funding availability and
personnel resources. Currently, CBP anticipates funding USDA $1 million
annually to support mechanical topping. This rate of funding does not
allow CBP to control carrizo cane to the extent required by USBP to
operate efficiently and safely where cane is present. Should additional
funding for this effort be provided, CBP would execute one or more
contracts with private companies for the topping of cane to more
rapidly address Border Patrol's need for visibility along the entire
Rio Grande River. Contracts with private companies would be executed
before the end of FY 2018 with work beginning before the end of the
calendar year 2018.
Question. Does DHS have sufficient resources and the authorities
needed to make this happen in the next year?
Answer. DHS/CBP have the necessary authorities to continue its
working partnership with USDA on the control of carrizo cane. In
addition, DHS/CBP has the necessary authorities to enter into contracts
with private entities that may be needed for additional support in this
effort.
DHS/CBP has identified $1 million from our base budget for
operations and support to continue our partnership with the USDA which
would allow for continued progress. Additional funding would be
required to expedite the process of controlling carrizo cane through
the use of private contracts for mechanical topping.
Question. I am glad to hear that we are finally making progress on
deploying biometric exit. I'm especially pleased to hear that DHS's
pilot programs have proved to be successful and that facial recognition
technology seems to be the solution we have been seeking to create an
effective exit program.
When does DHS expect to have facial recognition technology deployed
at all major airports in the United States?
Answer. CBP is working towards full implementation of biometric
exit in the air environment within the next 4 years. CBP has deployed
biometric exit technical demonstrations at one departure gate to the
following airports: Hartsfield-Jackson Atlanta International Airport
(Atlanta), Washington Dulles International Airport, Houston George Bush
Intercontinental Airport, Chicago O'Hare International Airport, Las
Vegas McCarran International Airport, Houston William P. Hobby Airport,
and John F. Kennedy International Airport (JFK). Coordination and
partnership with CBP stakeholders including airlines and airports is
critical to the success of deployment of biometric exit in the air
environment.
CBP has also launched a partnership with the Transportation
Security Administration at JFK to test facial biometric matching to
determine how CBP's facial recognition biometric exit might be
leveraged for checkpoint operations. Beginning in early 2018, CBP is
working to fully scale out air biometric exit and will spend 2018
working with stakeholders to get commitment to deploy biometric exit
technology.
Question. When does DHS expect to begin deploying this facial
recognition technology at land ports of entry?
Answer. CBP will be implementing a Third Country National (TCN)
departures program by the end of 2017 at three land border POEs
(Champlain, NY; Brownsville, TX; and San Ysidro Pedestrian West). CBP
will utilize a mobile device to take two index fingerprints from
departing TCN encountered by CBP officers during existing pulse and
surge outbound operations.
In FY 2018, CBP will deploy biometric facial recognition technology
at the entry and departure points of three southern land border
crossings (DeConcini and Morley Gate ports of entry (POEs)) in Nogales,
AZ and the San Luis POE. While a comprehensive deployment schedule is
still under development, the initial deployments at DeConcini and San
Luis will commence by summer 2018.
The deployment of facial recognition in the pedestrian land border
environment is aimed at achieving the following goals:
Confirming the arrival and departure of pedestrians subject
to exit requirements at land ports of entry using facial
recognition without negatively impacting the flow of traffic
across the border.
Reducing the threat posed by imposters arriving on foot by
verifying the identity of travelers and comparing their photo
to the travel document being used for travel.
Validating the concept of ``face as a token'' for
verification of traveler's identity and closing the arrival/
departure reporting gap in the pedestrian environment.
Question. Has DHS considered public-private partnerships to help
implement biometric exit at land ports of entry?
Answer. CBP is considering public private partnerships for
biometric exit in the land environment. For example, CBP is researching
the use of mobile applications to facilitate biometric exit
confirmations, similar to the Mobile Passport Control application in
the air environment, which was developed from a public private
partnership. There is opportunity for a similar arrangement in land.
Additionally, CBP is exploring areas where facial recognition might be
used to facilitate driver and cargo processing. Some stakeholders have
also signaled their interest to possibly work with CBP on exit
implementation. CBP welcomes private sector input and partnership on
these initiatives.
Question. Has DHS considered ``staging'' commercial, vehicle and
pedestrian traffic to facilitate biometric exit at land ports of entry?
Answer. CBP is examining all options to implement biometric exit in
the land environment that does not negatively impede the flow of
legitimate trade and travel. Capitalizing on CBP's successful
streamlining of the I-94 document issuance process, including issuing
those documents away from the POEs where there is ample parking, CBP is
evaluating the effectiveness of using those same facilities in order to
implement biometric exit in the land environment.
Question. Could CBP create EZ-pass lanes to automatically capture
information like license plate numbers and photographs of exiting
vehicle traffic?
Answer. CBP currently utilizes license plate readers in a number of
outbound lanes in order to capture outbound vehicle information. The
limitation of license plate readers is license plates do not provide
the identity of the occupants of the vehicles which is required to
confirm timely exit. Accordingly, CBP is exploring technologies that
might enable facial recognition screening in vehicles at speed. For
example, CBP has worked with government and private sector
organizations and will be leveraging the DHS Silicon Valley program to
identify any new and emerging technologies in this area.
Question. Has DHS considered expanding the NEXUS program to allow
for travelers to be pre-screened prior to exiting the United States?
Answer. CBP and Canada currently have a biographic information
exchange program for third country nationals. Currently, Canada
provides the United States with their inbound biographic information on
non-Canadians so that the United States can use that information as
departure information. Canada has not yet shared Canadian Citizens'
data.
CBP has made this a priority in working with the Canadian
Government for several years, and is looking forward to Canada
completing the necessary legal process to allow for sharing their
biographic inbound data for Canadian citizens. This will strengthen
CBP's knowledge of departing Canadian citizens and cover all northern
border crossers, including NEXUS members when it is fully implemented.
Question. With the total number of Border Patrol agents falling to
less than 20,000 nationwide at the end of FY16, we must do everything
that we can to retain quality law enforcement professionals that make
up today's border patrol.
In my border bill, I've included the Anti-Border Corruption
Reauthorization Act, which would allow CBP to hire former law
enforcement personnel who previously passed polygraph tests as part of
their positions. Do you support efforts like these to hire already
qualified personnel to these positions?
Answer. Hiring is my top mission support priority for CBP and I
could not agree more that we must do everything we can to recruit and
retain a world-class law enforcement workforce.
CBP regularly reviews staffing levels and hiring practices
(including the security vetting, which includes the polygraph exam as
part of the background investigation process) and we are open to
streamlined hiring of professionals with a demonstrated track record of
trustworthiness. I support Congress's effort to allow waivers for
former law enforcement personnel who previously passed polygraph tests
as part of their positions. DHS values the demonstrated commitment and
trustworthiness that these applicants bring to the mission, and the
quality of vetting already performed at the State, local, and Federal
levels for these individuals in sensitive positions. The flexibility to
waive the polygraph for individuals in these limited populations would
potentially expedite their onboarding and allow CBP to direct more
resources toward processing other groups of applicants, preventing
potential bottlenecks in the hiring pipeline.
I believe this approach enables CBP to weigh pre-employment risks
and implement mitigation measures in order to improve its hiring
capacity without lowering standards. Additionally, retaining the
requirement for all law enforcement applicants to undergo a Tier 5
background investigation (the highest level), coupled with random drug
testing, periodic reinvestigations, and the continuous evaluation of
employees for criminal conduct, will assist in mitigating any potential
risk.
I will ensure we remain judicious in any expansion of this
authority and have shown this discretion in our application of the
current waiver authority under the FY 2017 National Defense
Authorization Act (Pub. L. No. 114-328) granting the waiver for
approximately 20 percent of all requests to date.
To be clear, I do not favor lowering our standards for frontline
personnel, but rather that we work to fill these critical national
security personnel slots with seasoned law enforcement officers and
military personnel who can help keep the Nation's borders and ports of
entry (airports, seaports, and land ports) safe.
Question. The agents of the U.S. Border Patrol, including the
roughly 10,000 in my home State of Texas alone, do a dangerous job and
make personal sacrifices that affect not only them but their families.
We must take care of our people and their loves ones. Furthermore, we
must ensure that our hard-working agents are not only rewarded but
encouraged to serve a full career with the Border Patrol and not leave
early to pursue opportunities at other law enforcement agencies.
As Commissioner, what do you personally intend to do to retain
quality law enforcement professionals at the Border Patrol?
Answer. I agree that ensuring we take steps to retain quality law
enforcement professional within the Border Patrol, and CBP more
broadly, is paramount--especially when we have made the initial
investment in training these agents and officers, it is in our interest
to have them remain within CBP rather than depart for other components
in the Department or other agencies. I have asked both the U.S. Border
Patrol (USBP) and the Office of Human Resources Management (HRM) to
work on how to best address the challenges of retention and understand
why agents depart and what we can do to address that. One of the top
concerns I am hearing is that agents leave CBP due to both the lack of
mobility and the challenges of working in remote locations.
I would like to thank Congress for your support of our pilot
Operational Mobility Program. The $25 million in initial funding
provided in the FY 2017 Omnibus to establish this program is critical
since an identified lack of mobility accounts for approximately 74
percent of USBP non-retirement attrition. I look forward to this
program assisting in our efforts to help retain these agents, and
believe it provides multiple benefits as it addresses our agents'
mobility concerns, provides the ability to meet evolving national
security threats, and builds better agents with a broader experience
base.
I will continue to concentrate on retaining the workforce by
offering operational based mobility/relocations for frontline agents
and explore options to make CBP and the USBP the employer of choice. I
look forward to working with you and your staff further on potential
solutions.
Additionally, CBP's ability to meet its ever increasing and complex
mission is dependent on a strong and resilient workforce. Suicide
remains a serious problem for law enforcement officers and CBP is no
exception. I will continue to seek best practices and leverage tools
that will assist in building workforce resiliency and reduce the stigma
associated with help-seeking behavior. The well-being of the men and
women of CBP is a top priority for me.
Question. On May 21, 2017, severe storms struck both in the City of
Laredo, TX and the City of Nuevo Laredo, Mexico, causing significant
damages to the facilities of border crossings in my State. The damages
specifically were to Bridge III in Nuevo Laredo and the World Trade
Bridge in Laredo. As a result of these storms, operations were
significantly hindered and the flow of goods and services across the
border was interrupted.
Is the Laredo World Trade Bridge POE back at 100 percent
operational capacity?
Answer. The World Trade Bridge POE is at 100 percent operational
capacity, with CBP operating out of temporary facilities while
restoration activity continues on site.
Question. Have all of the facilities been refurbished?
Answer. Repair activities remain in progress, with an expected
completion date of December 2017.
Question. At the end of last year, my bill, the Cross-Border Trade
Enhancement Act, was signed into law. The legislation was the product
of years of effort to expand a very successful pilot program that
allowed for public-private partnerships at land, air, and sea ports of
entry. In fact, as a result of its enactment, many new stakeholder
entrants have been able to find new ways to improve traffic flows and
expand capacity at ports of entry.
How is the implementation of the Cross-Border Trade Enhancement Act
going and do you believe benefits of this legislation been fully
realized?
Answer. The Cross-Border Trade Enhancement Act made permanent and
expanded CBP's authority to enter into partnerships to accept donations
and provide reimbursable services under its Donations Acceptance and
Reimbursable Services Programs respectively. To date the CBP Donations
Acceptance Program (DAP) has approved 17 donation proposals totaling
$150 million in planned public and private sector investment in U.S.
POEs and important CBP initiatives. Ten of the 17 proposals have been
approved since enactment of the Cross-Border Trade Enhancement Act in
December 2016, while the others were approved under a predecessor pilot
authority provided by Congress. The 10 DAP projects range from
infrastructure improvements, partnerships for the provision of
biometrics services and data and donations of luggage for canine
training purposes. Partnerships entered into under DAP have and will
continue to enhance border security and promote the safe and efficient
flow of passenger travel and commercial trade.
Since the pilot program began in 2013, CBP's Reimbursable Services
Program has entered into agreements with more than 60 stakeholders,
providing over 368,000 additional processing hours at the request of
our stakeholders-accounting for the processing of more than 8 million
travelers and over 1.1 million personal and commercial vehicles. This
success would not have been possible without the Cross-Border Trade
Enhancement Act being signed into law. In 2017, CBP tentatively
selected 64 stakeholders across 54 ports of entry for participation in
the RSP (34 air POEs, 4 for air and sea POEs, 1 for land POE, and 15
for sea POEs). CBP continues to see a steady stream of applications for
new agreements under this legislation, so while recent results have
been very encouraging, continued growth and expanded utilization of
this program is expected to allow CBP to approve new and enhanced
services, which could not be provided without the Cross-Border Trade
Enhancement Act.
Question. Will you continue to support public-private partnerships
as a tool to boost staffing levels and upgrade existing infrastructure?
Answer. Yes; CBP will continue to explore public-private
partnerships as a viable mechanism and tool by which to provide new and
enhanced services and modernize the agency's POE infrastructure. Where
there is a return on investment for private sector to partner with us
to increase service levels or infrastructure capacity, we want to be
responsive and we appreciate the authority that Congress has granted.
Question. Four rounds of negotiations between the United States,
Mexico, and Canada have now been completed on the North American Free
Trade Agreement (NAFTA). As you know, NAFTA has had a major impact on
my State in particular. Texas has led the Nation in exports since 2002.
In 2015 alone, exports totaled more than $251 billion. The State's
largest market was Mexico. In fact, about half of all U.S.-Mexico trade
moves through Texas ports of entry.
Could you share your thoughts on the customs aspects of a soon-to-
be-renegotiated North American Free Agreement?
Answer. While the Office of the U.S. Trade Representative (USTR)
leads free trade agreement negotiations for the United States, CBP is
also at the negotiating table. The CBP Office of Trade is leading a
team of trade experts from across the Homeland Security enterprise that
participate in the NAFTA 2.0 negotiations, including in discussions
related to customs and trade facilitation provisions and on other
issues that impact CBP's customs operations. Though CBP cannot speak
directly to text proposals that are actively under negotiation, CBP
continues to support USTR by participating in negotiating sessions,
reviewing all of the proposed NAFTA text through the interagency
process, and even drafting some of our own text to ensure that the new
agreement is consistent with our legal authorities, policies,
procedures, and operational realities. CBP will continue to engage USTR
in the negotiation process to obtain a NAFTA 2.0 that enhances CBP's
customs enforcement mission at our borders while also raising regional
trade facilitation standards.
Question. What would CBP like to see reflected in a new NAFTA?
Answer. CBP seeks NAFTA 2.0 outcomes that reflect CBP's risked-
based approach to customs enforcement, emphasize our focus on priority
trade enforcement issues (including free trade agreement preferences,
intellectual property rights, antidumping and countervailing duties,
wildlife trafficking, and forced labor), enhance our ongoing trade
facilitation efforts with our Canadian and Mexican partners to further
automate, streamline, and harmonize all three countries' customs
processes and procedures, and promotes a regional approach to security.
Question. I'm encouraged by CBP's efforts to reduce redundant
inspections at the border but still maintain a high level of security.
As you know, duplicative inspection processes are a big concern for
private industries.
Could you comment on your expectations for the expansion of joint
inspections at U.S. ports conducted by CBP and their Mexican and
Canadian counterparts?
Answer. On August 23, 2017, CBP and Mexico Customs (SAT) signed a
Memorandum of Understanding (MOU) regarding Unified Cargo Processing
(UCP). CBP and Canada Customs (CBSA) have finalized a MOU on UCP and
expect to sign it by the end of 2017. UCP is a program which allows for
joint inspections (either inbound or outbound operations) by CBP
personnel with foreign Customs personnel on U.S. soil.
SAT currently lacks the infrastructure in Mexico to process all the
cargo and UCP allows for a single operational location. Instead of
trucks carrying cargo making multiple stops, in both Mexico and the
United States, UCP allows for a single streamlined inspection that
reduces wait times significantly and enhances security. It also fosters
information exchange on customs and security issues with Mexican
Customs. UCP with SAT is operational at the Laredo (truck, air, and
rail cargo), Rio Grande City (truck cargo), Texas; Nogales (truck and
rail cargo), Douglas (truck cargo), San Luis (truck cargo), Arizona;
and Calexico (truck cargo), California, POEs. CBP is in discussion with
SAT on potential UCP expansion to El Paso, Columbus, Santa Teresa,
Brownsville, Progresso, Pharr, Eagle Pass, Otay Mesa, Tecate, Phoenix,
and Port Fourchon (ocean cargo) POEs. These potential UCP locations
will be jointly determined by CBP and SAT based upon operational
impact, available personnel, and available space.
Canadian Customs is interested in outbound operations specific to
the rail environment as they do not have any non-intrusive inspection
equipment such as x-ray technology. UCP allows for Canadian Customs to
see all x-ray images from the rail and they can adjudicate concerns
much more rapidly. On the Northern Border, CBP is discussing UCP with
CBSA for applicability at Champlain (rail cargo), Buffalo, New York,
POEs.
CBP is looking to take the concept of UCP to a location where all
three Customs Agencies can be located in one location. The UCP has
helped reduce truck crossing wait times. Some trucking companies
reported to CBP that they have seen the crossing time reduced from 3
hours to as little as 30 minutes.
Question. Constituents in my State are relying on the timely
implementation of Drawback Simplification section of the Trade
Facilitation and Enforcement Act of 2015 (``TFTEA''). However, the
regulations implementing this section are still under review by the
Department of Treasury, and may not be finalized on February 24, 2018
even though required by statute. Furthermore, in a recent meeting with
members of your CBP and Treasury, the trade was advised that
Accelerated Payment may be withheld for claims filed on and after the
February 24, 2018 date even if the regulations are not final. As you
know several changes to the drawback laws have been made over the
years, and even when regulations implementing the changes were not
finalized accelerated payment was still made.
Will CBP follow past practice and precedent by guaranteeing
accelerated payments of drawback refunds even if the regulations are
not final?
Answer. We intend to deliver the regulations timely. CBP completed
the drafting in July and initiated Department of Treasury review on
July 31, 2017. Since then, CBP and Treasury have had multiple meetings
on several substantive matters raised by Treasury on the package. CBP
has submitted 3 rounds of passbacks to Treasury. Since that time we
have completed implementation of multiple rounds of comments.
We are awaiting Treasury's final concurrence and engaging the
Office of Management and Budget (OMB) to ensure a streamlined review
process commensurate with the importance of the regulations. Even as we
work toward timely completion, we are actively contingency planning and
are considering making the accelerated payment (AP) available for TFTEA
drawback claims once a final rule is effective. CBP will accept TFTEA
drawback claims as of February 24, 2018.
______
Questions Submitted by Hon. Benjamin L. Cardin
Question. The Homeland Security Committee Minority Office estimated
that President Trump's wall could cost up to $70 billion. As we've
discussed previously, during my CODEL to El Paso, I heard directly from
CBP officers that they would rather see investments in technology over
a wall.
Do you think spending $70 billion on 3rd-century technology is an
effective use of U.S. taxpayer dollars?
Answer. Securing the border requires an integrated approach
including infrastructure such as border wall and road access,
surveillance technology, response capability, and personnel. The U.S.
Border Patrol maintains a Capabilities Gap Analysis Process that begins
with input from the sector level, and has identified the necessary
capabilities to secure the border. The four key Master Capabilities
are: Domain Awareness, Impedance and Denial, Access and Mobility, and
Mission Readiness. The border wall provides an important capability to
impede or deny illegal crossings in those areas where it is applied, as
demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but it is
not effective alone, and is not an appropriate solution for every area
of the border. Where it is applied, the border wall must be supported
by the ability to detect activity through advanced surveillance
technology, and the ability to respond effectively with mobile, trained
personnel. In this way, the most effective means of achieving
operational control of the border does not rely on any single
capability, piece of technology, or infrastructure. It is a mixture of
all of those things, executed by a properly trained and properly
equipped mission ready workforce.
Question. In terms of the proposed border wall, do you anticipate
CBP and DOJ having to assert eminent domain against private landowners?
Answer. At this stage, DHS/CBP cannot state with certainty how many
landowners will be impacted by new border wall construction
requirements. The preferred method of obtaining interest in real
property is through negotiating an offer to sell based upon the
property's fair market value. We avoid, with few exceptions, any
acquisition of real property through eminent domain. However, in
situations where voluntary acquisition is not possible, DHS/CBP may
have to consider acquisition through condemnation.
Question. During a recent CODEL to Mexico City and El Paso, I heard
how critical our bilateral cooperation is to dealing with a broad range
of critical national security issues, as well as managing challenges of
Central American migration. I have serious concerns about how President
Trump's negative comments could put this cooperation at risk,
ultimately jeopardizing U.S. national security.
What is your assessment of U.S-Mexico collaboration?
Answer. CBP's collaboration with Government of Mexico counterparts
at the operational levels is as strong as it has ever been and we
continue to work with them to develop and implement shared strategic,
prioritized efforts, operations, and programmatic collaboration. The
United States and the Government of Mexico (GOM) are committed to
expanding our partnerships and working with each other to address
issues regarding our borders. In 2017, I traveled to Mexico on three
occasions (April, June, and August), to meet with key counterparts
(including Mexican Customs, Immigration, Police, and other agencies)
and to discuss border security and immigration enforcement. During my
trip in August, I attended meetings with officials from Mexico's
Secretariat of Foreign Affairs (SRE), Secretariat of the Interior
(SEGOB), and National Immigration Institute (INM). These discussions
focused on CBP's use of force, border management, and border violence
prevention. I have also met with senior Mexican Government officials on
numerous occasions in Washington, DC over the past 10 months.
CBP's partners include the Mexican Federal Police (FP), Customs
(SAT), Army (SEDENA), Navy (SEMAR), National Immigration Institute
(INM), Office of the Attorney General (PGR), and Intelligence and
Research Service (CISEN). The following objectives underpin CBP's
efforts:
1. Disrupting Transnational Criminal Organizations (TCOs) and
Deterring Terrorist and Weapons of Mass Destruction from
entering the United States through coordinated border efforts,
bilateral surveillance and operations, and increased
coordination with GOM partners such as FP, SEMAR, SEDENA, and
INM.
2. Increasing border security by expanding joint programs such
as the Southern Border Mentor Initiative, the Joint Security
Program (JSP), and Cross Border Coordination Initiative.
3. Facilitating increased trade and more efficient customs
processing through innovative initiatives, including the North
America Single Window, Cargo Manifest Harmonization, and
Unified Cargo Processing (UCP). CBP also is supporting Mexican
risk management, the development of trusted traveler and
shipper programs, partnerships with the private sector, the
development of new technology at POEs.
4. Continuing targeting efforts by supporting successful
programs--such as the Automated Targeting System-Global and the
exchange of liaison officers to between targeting centers.
5. Building the capacity of Mexican INM and SAT partners to
enhanced shared border security.
6. Supporting Preclearance expansion by engaging with Mexican
ministries and airport authorities and conducting bilateral
preclearance agreement negotiations. The new Mexico City
airport was selected by DHS as a priority location for
preclearance expansion in 2016. Discussions are ongoing towards
establishing preclearance at the new airport.
Question. Instead of spending money to hire 500 new Border Patrol
agents, wouldn't this money be better spent at the Ports of Entry,
where CBP intercepts the vast majority of drugs and contraband?
Answer. CBP has critical staffing needs across its frontline law
enforcement positions, both at and between ports of entry. In addition
to supporting the President's Budget Request for an additional 500
Border Patrol agents and 94 Air and Marine Interdiction Agents, CBP
does indeed need to continue to hire CBP Officers and Agricultural
Specialists at ports of entry. The most recent results from the Office
of Field Operations' Workload Staffing Model justifies the need for an
additional 2,516 CBP Officers at our ports through FY 2018 and we are
making progress towards our authorized levels that was last increased
by Congress through additional funding in the FY 2014 Omnibus. CBP also
plans to continue to offer fee-based proposals for targeted staffing
increases for CBP Officers and Agriculture Specialists.
Question. After the 9/11 attacks, don't you agree that the agency
moved too quickly to hire new recruits without the proper vetting and
standards, and then paid the price later in terms of employee
misconduct?
Answer. CBP learned important lessons from previous times of growth
and much has improved in the past 15 years. CBP has worked internally
to increase communication throughout all areas of the hiring process
(e.g., recruiting, testing, security, on-boarding, etc.). CBP has added
additional security items to the process (e.g., new automated vetting
system, polygraph examination, etc.). Technology has allowed for
greater information sharing across the government during the background
investigation process. CBP law enforcement applicants undergo a
thorough pre-employment examination process including a cognitive exam,
a structured panel interview, an automated vetting procedure, a
statutorily required polygraph exam, and a Tier 5 level background
investigation. CBP believes our process is one of the most rigorous in
the Federal Government.
Question. Can you give us an update on the use of body-worn cameras
and improved oversight over the Border Patrol? In my experience in
Baltimore after the Freddie Gray case and pending DOJ consent decree,
these cameras can help to reduce complaints, de-escalate conflicts (and
enhance officer safety), and ensure compliance with use of force
procedures.
Answer. I am committed to pursuing the use of camera systems,
including body-worn cameras, where operationally appropriate.
Currently, we are actively pursuing the use of Incident-Driven Video
Recording Systems (IDVRS), including both vehicle-mounted camera (VMC)
and body-worn camera (BWC) systems in order to enhance transparency,
accountability, and credibility with the public. In April 2018, CBP's
Law Enforcement Safety and Compliance (LESC) Directorate will conduct
an operational evaluation with USBP, OFO, and Air and Marine Operations
(AMO) to test the effectiveness of IDVRS and determine the appropriate
portfolio of VMCs and BWCs in CBP law enforcement environments. The
results of the evaluation will also be used to inform and further
refine CBP policy and technology requirements for IDVRS. Before the
evaluation can begin, many things must be accomplished. Currently CBP
is working to complete lab-testing, resolve issues related to camera
security, Technical Reference Model restrictions, procedural vendor
security concerns, and CBP wireless network connectivity issues. The
Privacy Impact Assessment for this initiative is being revised and must
be published by DHS before field deployments can begin. CBP's Office of
Information and Technology (OIT) is working to address USBP checkpoint
circuit and storage upgrades that are needed to avoid impacting
operations and to transfer the camera data captured with each
activation. Currently, these tasks are on schedule to be completed
prior to the field evaluation in April 2018. The field evaluation is
scheduled to be completed in September 2018, with a full report and
revisions to policy, technology requirements, and updated deployment
strategies.
Question. Can you give me some examples of best practices you have
implemented in order to address misconduct by Border Patrol agents?
Answer. As the largest law enforcement agency in the United States,
CBP has a responsibility to the public it serves and to fellow law
enforcement agencies to be a leader in adopting best practices in
training, tactics, equipment, integrity, and transparency. Our
effectiveness depends on maintaining the trust of the public. Toward
that end, CBP has implemented a number of best practices over the past
5 years and continues to enhance our efforts in this area.
CBP's approach to promoting workforce integrity is predicated on
rigorous pre-
employment screening of job applicants to weed out unsuitable
candidates, increased emphasis on integrity awareness training,
proactive anticorruption detection measures, and timely and thorough
investigations of criminal and serious misconduct allegations. CBP
takes all allegations of employee misconduct seriously. Under a uniform
system, all allegations of misconduct are recorded in a secure,
centralized database. All allegations are then immediately referred to
the DHS Office of Inspector General for an investigative determination.
Under DHS policy, the OIG maintains the ``right of first refusal'' on
all allegations involving DHS employees. Allegations declined for
investigation by the OIG are then returned to CBP OPR for appropriate
handling.
The Trade Facilitation and Trade Enforcement Act of 2015 (Pub. L.
114-125) authorized CBP OPR to investigate criminal and administrative
matters and misconduct by CBP employees. OPR investigators average over
20 years of criminal investigative experience and are equipped with a
full complement of investigative tools, including the latest in
forensic and cyber-technology. OPR also utilizes the
intelligence-gathering and manpower resources of the FBI through its
membership in 20 of the FBI's 22 Border Corruption Task Forces and
maintains strong, collaborative working relationships with the DEA, ICE
HSI, and other Federal and local authorities. OPR also leverages its
vast array of data collection resources by deploying full-time analysts
to proactively identify suspicious or anomalous activity that could be
indicative of corruption or serious misconduct. After OPR completes its
criminal or administrative investigation, the Office of Human Resources
Management and the Office of Chief Counsel work collaboratively with
OPR and management to propose and impose discipline when appropriate.
OPR continues to study known cases of corruption to inform proactive
detection of potential misconduct and corruption.
Based on the CBP Integrity Advisory Panel (IAP) recommendations of
the agency's complaints and discipline process CBP has made many
improvements to the process. For instance, we have increased
transparency for use of force incidents, are moving forward with hiring
additional criminal investigators, making technical improvements to its
case management system, reissued the directive on reporting misconduct,
and HRM is revising the Table of Penalties and Offenses and the
discipline review process.
In February 2015, CBP established a Use of Force Incident Team
(UFIT) program and a Use of Force Review Board (UFRB) process in an
effort to increase transparency and accountability. The UFIT and UFRB
is a CBP-wide response plan to investigate, monitor, report, evaluate,
and review use of force incidents involving CBP officers and agents.
With regards to use of force incidents, the UFIT investigation results
can provide recommendations concerning tactics, training, equipment,
and/or safety issues. The investigations can also identify potential
misconduct and administrative violations that may result in
disciplinary or other corrective actions taken against employees.
In 2015, in order to address the misconduct associated with
domestic violence or alcohol related driving offenses (DUI) promptly
and consistently, USBP consulted with the Offices of Internal Affairs,
Chief Counsel, Human Resources Management, as well as gained the
perspectives of District Attorneys in California, Arizona, and Texas in
order to standardize administrative consequences for the entire USBP.
The Standardized Post-Employee Arrest Requirements (SPEAR) outlines a
standardized process for identifying and taking appropriate
administrative action following the arrest of a USBP employee for
domestic violence or DUI. It is designed to ensure consistent
management action post-arrest. Through the application of SPEAR and
consistent messaging through video and slides on the Information
Display System about the program, alcohol related driving offenses have
decreased 14 percent from FY 2016 to FY 2017. As with arrests of all
CBP employees, arrests involving USBP employees decreased in FY 2017.
With 110 reported arrests, USBP decreased 19 percent overall and 8
percent in Domestic/Family Misconduct arrests. USBP continues to
implement its SPEAR program and actively runs musters regarding drug
and alcohol related misconduct.
Question. What are some of the most stubborn problems that you face
in terms of corruption and misuse of deadly force, and in your
experience which types of agents or offices are most vulnerable?
Answer. CBP has a workforce of dedicated men and women who are
among the finest civil servants in the world, who carry out their
duties with the utmost professionalism and efficiency. With support of
Congress, CBP has improved its ability to prevent corruption and, due
to a number of proactive efforts, has seen consistent reductions in
uses of deadly force.
With regard to the use of deadly force, over the past 3\1/2\ years,
CBP has taken a number of steps to ensure our law enforcement personnel
are prepared for potential use of force encounters to protect them and
the public they serve. Some of these steps include the following:
Creation for the Law Enforcement Officers Safety and
Compliance Directorate (LESC) to Manage CBP's Use of Force
Program--In March 2014, CBP established what is now the LESC to
manage the agency's use of force program. The LESC is
responsible for the development and articulation of CBP's use
of force policy and oversees a comprehensive and fully
operational program that conducts training standardization
audits, incident reviews to identify enhancements to existing
training, data analysis, use of force instructional delivery,
and weapon accountability and procurement to ensure use of
force training, equipment, and policies meet CBP's operational
requirements.
Joint Integrity Case Management System and the Assaults and
Use of Force Reporting System--In January 2014, CBP, in
conjunction with Immigration and Customs Enforcement (ICE),
enhanced the data collection and reporting capabilities of the
Joint Integrity Case Management System (JICMS). JICMS is the
system that tracks allegations of excessive force. That same
year, in October 2014, CBP integrated JICMS with the data
systems that captures information on assaults against officers
and agents to create the new Assaults and Use of Force
Reporting System (AUFRS) which is integrated with the Use of
Reporting System (UFRS). This new system allows CBP to conduct
comparative analyses of how officers and agents respond to
assaults. This analysis will help the agency identify ``best
practice'' responses to threats and better inform enhancements
to policies, training, tactics, and equipment. It also has the
capacity to track use of force investigations from start to
finish.
Use of Force Incident Tracking System--In February 2015, the
Use of Force Incident Tracking System (UFITS) was implemented
to track the investigations of use of force incidents involving
CBP employees.
Media Engagement in Response to Use of Force Incidents--
``Maximum Disclosure, Minimum Delay''--OPA updated its Standard
Operating Procedures (SOP) in June 2015 to enhance CBP's
release of information following a significant use of force
incident. The SOP requires the respective OPA public affairs
specialist--in coordination with the respective field commander
and OPR special agent in charge--to issue a statement detailing
the basic facts of the incident within one hour of headquarters
notification. After subsequent information has been confirmed,
the field leadership, in coordination with OPA and OPR, will
issue a more detailed statement and/or hold a press briefing
within 12 hours of the initial statement. This new posture has
improved the timeliness and substance of public engagement in
response to fatal use of force incidents.
Previously, CBP was dependent upon local law enforcement
agencies to conduct investigations involving CBP personnel.
CBP's role was minimal, relying solely on other agencies to
conduct thorough investigations, which resulted in significant
internal delays to complete use of force investigations. These
delays, along with minimal CBP participation in the
investigations, hampered CBP senior leadership's ability to
address use of force incidents effectively. With the authority
to Investigate Criminal Misconduct and Review of Use of Force
Cases, CBP now has at its disposal a variety of tools to review
and investigate use of force incidents. Some of those tools
include:
Use of Force Incident Teams (UFIT)--To better respond to CBP
use of force incidents, UFITs were created to provide an
administrative review process that uses proven investigative
protocols and evidence gathering standards to objectively,
impartially, and thoroughly examine use of force incidents in a
timely and transparent manner. UFIT is a CBP-wide, multi-office
investigative unit, operating under the leadership of an OPR
incident commander, whose purpose is to conduct a thorough,
factual, and objective investigation into a use of force
incident involving death or serious injury; prepare a
comprehensive report appropriate for the type of incident
involved; and promptly report and subsequently track
observations, recommendations, and instructions, including any
suggested policy changes or the need for referral for further
administrative or disciplinary review.
The UFIT responds to all use of force incidents involving
serious injury or death; coordinates with local or Federal
authorities having investigative jurisdiction to ensure the use
of force investigation is thorough and complete; serves as
``eyes and ears'' of CBP executive leadership and allows for
CBP leadership to make initial statements of facts.
The UFIT review process provides the affected CBP agents and
officers more timely feedback about the use of force incidents,
helping them move on, both professionally and personally.
Getting our officers and agents back to work dispels
unwarranted mistrust, lifts the cloud of suspicion, and
improves their units' readiness--and that benefits all of CBP
and the public we serve.
Use of Force Review Board (UFRB)--The National UFRB (NUFRB)
is a CBP committee established to review all significant use of
force incidents resulting in serious physical injury or death,
or any incident involving the discharge of a firearm in a non-
training setting. All findings and recommendations are provided
to CBP Senior Leadership. Local UFRBs will address lesser use
of force incidents that do not result in serious physical
injury or death or the discharge of a firearm.
The UFRBs review use of force incidents for three issues:
(1) was use of force within policy; (2) was misconduct
associated with the application of force; and (3) what lessons
can be learned from the incident in terms of techniques,
tactics, policy, training and equipment?
The findings of the UFIT investigation are presented to the
National UFRB (NUFRB). The NUFRB is comprised of Office of
Professional Responsibility Assistant Commissioner; Office of
Border Patrol, Chief of Operations; Office of Air and Marine,
Executive Director; Office of Field Operations, Executive
Director; DOJ/Civil Rights Division; Office of Air and Marine,
Management Official; Use of Force Center of Excellence
Director; Office of Chief Counsel; Laboratory Scientific
Services, Executive Director; Labor and Employee Relations,
Director; Office of Public Affairs, Management Official; ICE/
Office of Professional Responsibility; DHS/Office for Civil
Rights and Civil Liberties; and DHS/Office of Inspector
General.
The NUFRB reviews each significant use of force incident
resulting in serious physical injury or death to determine the
following: (1) if the application of force in each individual
incident was consistent with the CBP Use of Force Policy; (2)
provide any recommendations concerning tactics, training,
equipment, and/or safety issues; and (3) refer potential
misconduct and administrative violations to CBP OPR for further
handling as appropriate.
Reporting Protocols for Use of Force Allegations: In August
2014, CBP initiated new reporting protocols to ensure all
complainants who allege excessive force are interviewed prior
to being processed for removal. All CBP components have been
directed to immediately notify the Office of Professional
Responsibility upon receipt of a complaint of alleged excessive
force and to not remove individuals until OPR has had the
opportunity to conduct an investigative interview of the
complainant.
Public Transparency and Accountability: CBP has posted
guidance on its website to allow the public to easily file a
complaint or provide feedback at https://help.cbp.gov/app/home.
The agency uses the feedback to improve performance across the
enterprise.
The CBP Information Center also has increased its Spanish-language
capacity to provide improved service, accountability and transparency
to those who speak Spanish via the fully integrated Spanish-language
service at https://helpspanish.cbp.
gov/.
New Reporting Protocols for Excessive Force Allegations.
Additionally, as part of our agency's focus and commitment to
transparency we have also increased our engagement with the public,
interagency partners, Non-
Governmental Organizations (NGOs), and the Media.
Stakeholder Outreach.
CBP Integrity Advisory Panel.
Border Violence Prevention Technical Working Group.
Interface with the Government of Mexico.
Media engagement.
CBP takes allegations of employee misconduct, to include
allegations of excessive force, seriously. Under a uniform system,
allegations of misconduct are documented and referred to the DHS Office
of Inspector General (OIG) for independent review and assessment. Cases
are either retained by the DHS OIG for investigation or referred back
to CBP's Office of Professional Responsibility for further handling.
CBP's administrative review process of Use of Force incidents
begins after all Federal and local authorities decline criminal
prosecution. CBP's Use of Force Review Board (UFRB) considers whether
the application of force was within CBP policy and constitutionally
permissible, identifies potential issues involving training, tactics
and equipment, and refers any disciplinary issues (e.g., excessive
force) to the Joint Intake Center (JIC). Use of force information for
specific incident may be available upon request under the Freedom of
Information Act (FOIA).
Allegations of criminal misconduct, serious misconduct,
administrative misconduct, and informational incidents can be
immediately reported using one of the following methods:
Call the toll-free Joint Intake Center Hotline at 1-877-2INTAKE
or send a fax to (202) 344-3390;
Send an email message to Joint.Intake@dhs.gov;
Write to P.O. Box 14475, 1200 Pennsylvania Avenue, NW,
Washington, DC 20044; or
Call the DHS Office of Inspector General (OIG) at 1-800-323-
8603.
CBP has also recently implemented a new extended curriculum for the
Border Patrol Academy that includes extensive scenario-based training.
Taken together all of these measures have resulted in reduced
instances of the use of deadly force, and increased transparency and
accountability when deadly force is used. If confirmed, I intend to
sustain and enhance these initiatives as they are critical to earning
and maintaining the trust of the public, a fundamental prerequisite for
effective law enforcement.
Question. Recently my staff traveled to Mexico's southern and
northern borders where they heard numerous complaints that women,
families and unaccompanied children fleeing violence and persecution
have been denied the opportunity to apply for asylum or other forms of
humanitarian protection at ports of entry along the U.S.-Mexico border.
These reports are disturbing.
How will you address allegations of CBPOs illegally and improperly
turning away asylum seekers? To what extent are CBPOs using an
expedited removal process?
Answer. Over the last 2 years, CBP has referred over tens of
thousands of applicants for admission who expressed fear of return to
U.S. Citizenship and Immigration Services for review by an asylum
officer. CBP carries out its mission of border security while adhering
to U.S. and legal international obligations for the protection of
vulnerable and persecuted persons.
DHS addresses any and all allegations of misconduct through a
consistent, stratified review, and investigative process. All
allegations, regardless of the mode through which they are received,
are channeled through the Joint Intake Center (JIC), a central
processing center, responsible for receiving, documenting, and
referring all allegations of employee misconduct. Once an allegation is
assessed and assigned for investigation, CBP conducts a thorough and
impartial investigation. Upon completion of the investigation, CBP
Office of Professional Responsibility conducts a subsequent review of
the findings to develop alternate investigative strategies or identify
additional investigative leads.
When appropriate, CBP proactively follows up on all allegations
submitted to the Joint Intake Center for sharing with the Office of
Inspector General and to track investigative follow through.
Additionally, CBP conducts regular engagements with NGOs both at the
sector and field office level, and at headquarters.
Question. Border Patrol makes public few details about deaths or
the methodology it uses to count deaths. Incomplete data on migrant
deaths may affect Border Patrol's ability to understand the scale of
the problem in different sectors while making it more difficult to
locate remains.
How can you improve migrant death reporting?
Answer. CBP defines a border-related death as a suspected,
undocumented migrant who died: (1) while in furtherance of an illegal
entry; (2) within a designated target zone whether or not the Border
Patrol was directly involved; and/or (3) outside the designated target
zone when the Border Patrol has direct involvement with the incident.
USBP will notify law enforcement and the coroner's office within
the jurisdiction of the located deceased individual. Local law
enforcement conducts an appropriate death-related investigation and the
county coroner assumes responsibility for the deceased. USBP contacts
the coroner's office to request cause of death and identity
determination. USBP will also contact the consulate office of the
deceased individual's native country for notification.
Once the medical examiner/coroner determines the cause of death, a
suspected cause of death is cited in the Border Safety Initiative
Tracking System (BSITS), a USBP managed client-server database that
serves as the central repository through web-based applications for
collecting, managing, and disseminating critical incident data related
to suspected, undocumented migrant deaths and Border Patrol rescues in
selected counties along the U.S. border with Mexico. The data is used
for analyzing the number and locations of deaths and rescues,
categorizing deaths and rescues, identifying trends, and identifying
high-risk areas.
As part of the Customs and Border Protection attention to
humanitarian needs, the Missing Migrant Program (MMP) was established
by U.S. Border Patrol (USBP) in June 2015, as a pilot program within
the Tucson Sector and subsequently rolled out to South Texas in June
2016.
MMP institutionalizes procedures for third party missing migrant
reports, providing a focal point of collaboration and integration, to
prevent deaths and increase rescues of missing migrants. MMP also
assists county medical examiner offices, forensic pathologists, and
foreign consulates in the identification and family reunification of
deceased migrants. Information obtained from this multi-agency and
multi-national effort provides closure to families and helps to shape
CBP operations.
In June 2017, USBP Headquarters agreed to make this pilot into an
official program under its Foreign Operations Division (FOD). FOD has
been working with Tucson and South Texas Sectors to identify best
practices and develop an Internal Operating Procedure (IOP) for the
MMP. As of November 2017 the MMP has expanded to the El Paso and Yuma
Border Patrol Sectors with a full roll out across the entire Southwest
border completed by the summer of 2018.
USBP has several programs and initiatives focused on increasing
border safety and minimizing the risk of migrant deaths. As an example,
USBP has more than 246 BORSTAR Unit agents who are trained and
certified for advanced search and rescue operations. BORSTAR agents are
located strategically along the Southwest border and are on call and
available to respond to high-risk emergent situations for extended
periods. In FY 2017 alone, USBP completed over 3,000 rescues. USBP
medical initiatives provide emergency medical response training to
agents throughout the entire border region specifically focusing on
high-risk areas. USBP currently has more than 1,200 certified Emergency
Medical Technicians, as well as paramedics and first responders. USBP
also has 85 active rescue beacons strategically placed throughout the
Southwest border, to save the lives of illegal aliens in distress.
I am committed to continuing these efforts to provide robust search
and rescue response capabilities to mitigate risk in remote and austere
environments as well as continuing to develop innovative ways to
address these challenges proactively. I will continue to ensure CBP
complements DHS efforts to provide public awareness through
communicating the dangers of crossing the Southwest border both within
the United States and abroad. USBP complements the DHS media campaign
plan to reach out to potential migrants in their home countries to
discourage them from attempting to enter the United States illegally in
the first place.
Question. Will you pledge to conform CBP enforcement practices with
the recommendations of the Task Force on 21st Century Policing? The
Task Force recommended that: ``To embrace a culture of transparency,
law enforcement agencies should make all department policies available
for public review and regularly post on the department's website
information about stops, summonses, arrests, reported crime, and other
law enforcement data aggregated by demographics.''
Answer. Since 2014, CBP has implemented and continues to implement
significant policy, procedural and programmatic reforms with respect to
transparency initiatives CBP has taken and variety of steps and
implemented policies to increase transparency and accountability. For
example, to improve the public's access to information, CBP has posted
policies, reports, and statistics consistent with the recommendation
from the Task Force cited in the question, including:
1. Use of Force Policy, Guidelines, and Procedures Handbook,
https://www.cbp.gov/sites/default/files/documents/
UseofForcePolicyHandbook.pdf.
2. Use of Force Review, Cases, and Policy From the Police
Executive Research Forum, https://www.cbp.gov/sites/default/
files/documents/PERFReport.
pdf.
3. Use of Force Case Summaries, https://www.cbp.gov/newsroom/
stats/cbp-use-force/case-summaries.
4. Use of Force Statistics, https://www.cbp.gov/newsroom/
stats/cbp-use-force.
5. CBP Discipline Overview FY 2015, https://www.cbp.gov/
sites/default/files/assets/documents/2017-May/FY15-discipline-
report-5-4-17.pdf.
6. Standards to Prevent, Detect, and Respond to Sexual Abuse
and Assault in Confinement Facilities, https://www.gpo.gov/
fdsys/pkg/FR-2014-03-07/pdf/2014-04675.pdf.
7. CBP Policy on Zero Tolerance of Sexual Abuse and Assault,
https://www.cbp.gov/employees/eeo/ztp/cbp-policy-zero-
tolerance-sexual-abuse-and-assault.
8. CBP Enforcement Statistics, https://www.cbp.gov/newsroom/
stats/cbp-enforcement-statistics.
9. Southwest Border Migration Statistics, https://
www.gpo.gov/fdsys/pkg/FR-2014-03-07/pdf/2014-04675.pdf.
10. Arrests of criminal aliens by U.S. Border Patrol, https://
www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-
alien-statistics.
11. Homeland Security Advisory Council--Interim Report of the
Integrity Advisory Panel, http://www.dhs.gov/sites/default/
files/publications/DHS-HSAC-CBP-IAP-Interim-Report.pdf.
If confirmed, I plan to sustain and continue to enhance our
commitment to transparency related to our law enforcement mission.
Question. Will you pledge to provide more transparent data on the
use of force by CBP agents, including the perceived race or ethnicity
of all individuals stopped, and the resulting disposition of the stop
or search, including the length of the encounter (i.e., search, arrest,
use of force)?
Answer. CBP's authority to enforce the law appropriately bears the
responsibility of accountability, which includes integrity and a
commitment to continued transparency. The current CBP Use of Force
Policy Handbook is available for public view on CBP.gov. In addition,
CBP continues to provide the public with updated monthly use of force
statistics and summaries for use of force cases reviewed by the CBP
National Use of Force Review Board, which can be found here: https://
www.cbp.gov/newsroom/stats/cbp-use-force. In FY 2017, the CBP National
Use of Force Review Board (NUFRB) convened three times, deliberating on
a total of 12 CBP use of force incidents. Additionally, the CBP Use of
Force Incident Team (UFIT) review boards--known as Local Use of Force
Review Boards (LUFRB) reviewed 162 use of force incidents. CBP released
the results of a number of incidents reviewed by the NUFRB and will
release remaining cases once they have completed the full review
process. The case summaries can be found here https://www.cbp.gov/
newsroom/stats/cbp-use-force/case-summaries.
Currently, CBP does not collect the race or ethnicity of
individuals who are encountered in the course of CBP's law enforcement
operations. CBP does capture and routinely releases information on the
nationalities of persons apprehended crossing between ports of entry or
subject to adverse immigration actions at ports of entry.
Question. Will you pledge to review my legislation, the End Racial
and Religious Profiling Act (ERRPA, S. 411), and let me know if you can
incorporate ideas or best practices from this legislation into CBP
practices?
Answer. I can commit to review this proposed legislation, consider
if we can incorporate ideas and best practices, and have my team work
with your staff to provide any appropriate technical assistance.
Question. As you may know, drawback law is the refund of duties,
taxes, and certain fees paid on importation of articles into the United
States when those articles, or like-kind articles, are exported or
destroyed.
Drawback, and other duty deferral regimes, are a long-standing
feature of U.S. law that enable U.S. manufacturers to compete on a
``level playing field'' with their foreign competitors. By refunding
duties, taxes and fees paid on imports when there is a similar-classed
export, drawback strongly promotes U.S. exports, manufacturing, capital
investment, and job creation.
Congress most recently expanded drawback privileges in 2016 with
the passage of TFTEA, providing even greater opportunities for U.S.
exporters to take advantage of this statutory benefit.
If you are confirmed as Commissioner of U.S. Customs and Border
Protection, will you and your office support our U.S. manufacturers and
workers by maintaining and enforcing legislation such as duty drawback
and deferral programs in order to promote growth in U.S. manufacturing
and exports?
Answer. As Acting Commissioner of CBP, and, if confirmed, I am
committed to upholding the laws of the United States, including
drawback as a longstanding trade facilitation law. Drawback, and other
duty deferral regimes, are important features of U.S. law that enable
U.S. manufacturers to compete on a ``level playing field'' with their
foreign competitors. By refunding duties, taxes and fees paid on
imports when there is a similar-classed export, drawback strongly
promotes U.S. exports, manufacturing, capital investment, and job
creation.
CBP takes very seriously its dual role of trade facilitation and
protection of the revenue. I have been, and will continue to work
closely with CBP's subject matter experts and those in the Department
of Treasury to expeditiously and effectively implement TFTEA's drawback
benefits provided by Congress to the U.S. business community. CBP will
continue to be committed to administering the drawback and duty
deferral laws and will actively work with the Department of Treasury,
and other relevant Partner Government Agencies, to effectively support
growth in U.S. manufacturing and exports.
______
Questions Submitted by Hon. Patrick J. Toomey
Question. The Delaware River ports make up one of the largest fresh
fruit importation areas in the United States, bringing in over $2
billion worth of fruit goods each year. While imports have increased
dramatically over the past couple years and terminal operators are
making significant investments to increase storage capacity and cargo
handling, the number of full-time CBP agriculture inspectors has
remained stagnant. Low staff levels make it difficult for my
constituents to process shipments of foreign fruits in a timely manner.
This increases the amount of fruit that spoils before it can be moved
to cold storage and creates an incentive for distributors to import
their products through ports outside of Philadelphia.
Does CBP plan to increase the number of permanent agriculture
inspectors stationed in Philadelphia, and if so, when do you expect
that increase to occur?
Answer. Yes, CBP has articulated existing requirements to increase
the number of permanent Agriculture Specialists, including in the area
port of Philadelphia. While CBP is currently at its full authorized and
funded staffing level for agriculture specialists nationwide, the
annual Agriculture Resource Allocation Model (AgRAM) shows a gap of
over 700 CBP Agriculture Specialists (CBPAS) to effectively carry out
our mission nationwide, including at the area port of Philadelphia. The
Animal and Plant Health Inspection Service (APHIS) fee allotments to
CBP from the APHIS Agricultural Quarantine Inspection (AQI) user fee
revenues are providing full cost recovery for CBP AQI operations, but
only at the current staffing floor of 2,414 CBPAS. CBP intends to
consider multiple options for increasing funding, including potential
fee based or appropriated solutions. CBP anticipates an increase in
staffing of CBPAS at Philadelphia if additional funds become available
for hiring.
Currently trade stakeholders and terminal operators utilize
Reimbursable Services Agreements and CBP has provided temporary duty
personnel to supplement and support existing staffing year round to
cover peak periods and increases in perishable imports.
CBP's Reimbursable Services Program has entered into eight
agreements with Delaware River terminal operators to provide additional
inspection services during peak seasons. CBP entered into agreements
with the following stakeholders: Independent Container Line, Ltd., Penn
Terminals, Inc., Greenwich Terminals LLC, Network Shipping Ltd. (Del
Monte Fresh Produce), Gloucester Terminals LLC, Turbana Corp.,
Interoceanica Agency (Isabella Shipping Company), and Diamond State
Port Corp.
Question. How does CBP determine staffing levels at our Nation's
ports, specifically for agriculture inspectors?
Answer. To objectively identify baseline staffing requirements for
CBP agriculture protection operations, CBP developed the AgRAM. Like
the CBP Workload Staffing Model, the AgRAM is an analytical tool
developed by CBP to calculate the required number of CBP Agriculture
Specialists based on the volume and composition of arrivals. The model
takes into account both the legally mandated inspection of regulated
cargo as defined by United States Department of Agriculture (USDA)--
Animal and Plant Health Inspection Services (APHIS) and the risk-based
inspection of passengers and cargo. The model takes into account the
volume of cargo, conveyance, and passenger arrivals in all environments
as reported by Operations Management Report data. The AgRAM also
utilizes USDA APHIS data to determine the various work counts in all
environments and incorporates pest risk levels as determined by the
USDA. The AgRAM:
Accounts for the volume of cargo, conveyance, and passenger
arrivals in all environments;
Incorporates pest risk levels as determined by APHIS to
ensure sufficient staffing is allocated for inspection of high,
medium, and low risk commodities, passengers, and conveyances;
Factors AQI Trade Facilitation Programs, e.g., the National
Agriculture Release Program (NARP); and
Incorporates a utilization factor to ensure staffing levels
can process peak workloads within acceptable time frames,
additionally it has the capability of determining overtime
staffing needs.
The AgRAM was subject to an independent assessment by Deloitte
Consulting, LLP, in fiscal year 2015. The assessment determined the
AgRAM's methodology and approach to identifying staffing needs is
thorough and efficient. Internally, the AgRAM is updated each year with
the previous fiscal year's data and reviewed to ensure the integrity of
the results. The model results are then validated by CBP before being
certified by DHS prior to submission to Congress each fiscal year. The
most recent results of CBP's Agricultural Resource Allocation Model
show a need for an additional 721 CBP Agriculture Specialists through
FY 2018.
The AgRAM, combined with other information about resources,
threats, and passenger volume are incorporated into leadership review
of how to best allocate CBPAS resources.
Question. What other policies and automated technologies is CBP
considering to help streamline the inspection process for agricultural
products in an effort to reduce processing times?
Answer. CBP has delivered several key agriculture-centric
automation and interoperability programs. The efforts have resulted in
significant savings by automating data sent to USDA for mandatory
inspections of cargo and for the pest identification process. The
implementation of a single, unified data repository to further automate
trade and passenger reporting functions, work accomplished, transport/
export commodity tracking, and exam findings recordation. The goal is
an automated environment that facilitates agriculture data management
for purposes of targeting/selectivity, analysis, reporting, and
performance measures, and to support the Agriculture Resource
Allocation Model (AgRAM).
The National Agriculture Cargo Targeting Unit (NACTU) is
specifically focused on agricultural quarantine targeting (animal and
plant pest/disease risk). The NACTU researches import cargo shipments
and analyzes national quarantine activity to identify those shipments
posing significant risk. These agricultural quarantine risks relate to
shipments with pests, contaminants, and prohibited agricultural
products (including through smuggling activities).
OFO's Agriculture Programs and Trade Liaison (APTL) and the Office
of Information and Technology (OIT) partnered to build a single window
for targeting vessels, recording vessel inspection data, and
communicating vessel risk(s) directly with ATS-4. This technology is
replacing the paper CBP Form AI-288 and re-orienting the Ship
Inspection Report (288) into an electronic collection of vessel
inspection data. CBP has deployed and commenced the interface
capability between targeting systems Vessel Risk List, and
electronically capturing, communicating to other ports and maintaining
inspection metrics such as: mobile targeting for high risk commercial
vessels with Asian Gypsy Moth (AGM), Khapra Beetle, Mediterranean fruit
fly, and international garbage violating vessels. In addition, this new
technology automatically populates/generates the information into paper
report format, eliminating duplication of work for CBP Agriculture
Specialists (CBPAS), such as return to the office and manually record
inspection results in both CBP and APHIS databases, as well as manual
communication with a variety of stakeholders. Economically the
contractor research estimated $2.3 million annually in time savings for
CBPAS through 288 app utilization during all three phases of
operations: targeting, inspection, and recording/reporting out
significant exam results.
The Agriculture Pest Exclusion Coordinating Specialists (APECS)
facilitates trade by ensuring that cargo is not delayed pending
identification of non-quarantine plant pests. Since its development CBP
working with APHIS has significantly increased the number of cargo
shipments released at participating ports. The Pharr, Texas Cargo
Import achieved a reduction in cargo processing dwell time from 5 hours
to 20 minutes.
Question. As you know, CBP contracts with Centralized Examination
Stations (CESs) in an effort to consolidate cargo inspections at
single, private warehouse facilities, which may be located miles away
from the dockside terminal. It is my understanding that the CES in
Philadelphia is only used for intensive exams that require special
inspectors, while non-intrusive and most agriculture exams remain at
the terminal. That said, terminal operators in Philadelphia are
concerned that CBP will eventually move all agriculture inspections to
the off-site CES facility, which could raise transportation costs for
importers and increase delays for inspections.
Will you commit to working with the terminal operators in
Philadelphia before implementing new inspection policies and
procedures?
Answer. CBP is committed to working with its public and private
stakeholders before implementing such procedural changes. Local CBP
management currently engages in monthly, quarterly, or as needed
agriculture-focused meetings with the maritime operations community;
CES focused meetings; and will begin having a reoccurring Customs
Broker meeting. These engagements provide many opportunities for CBP to
provide operational updates and for the trade community, including
terminal operators, to provide feedback and express concerns.
Question. In Philadelphia, does CBP intend to move all non-
intrusive and agriculture inspections from the dockside terminals to
the CES?
Answer. CBP Philadelphia does not plan to move all non-intrusive
and agriculture inspections from dockside terminals to the CES. A few
advantages of having a CES are that the operation allows CBP to
consolidate staffing and resources, eliminate commute time to numerous
terminals and warehouses, and reduce inspection and cargo hold times
when multiple team and/or agencies require inspection. Having the CES
is one element of addressing staffing and resource limitations.
However, other factors would need to be analyzed before considering
moving other exams to the CES. As port operations are constantly
changing, CBP is also constantly reviewing its procedures. If the time
were to come to consider moving additional inspections to the CES, CBP
will communicate that with the trade community, and stakeholders will
have the opportunity to provide feedback.
Question. Can you explain how CBP monitors and audits CES
facilities once they have been designated by CBP?
Answer. Pursuant to title 19, Sec. 1467, of the United States Code
(19 U.S.C. 1467), CBP has a right to examine any shipment imported into
the United States. Per CBP regulations, it is the responsibility of the
importer to make the goods available for examination. No distinction is
made between commercial and personal shipments. If a shipment is
selected for examination, it will generally be moved to a CES for the
CBP exam to take place. A CES is a privately operated facility, not in
the charge of a CBPO, at which merchandise is made available to CBPOs
for physical examination. The CES facility will unload the shipment
from its shipping container and will reload it after the exam. The CES
concept fulfills the needs of both CBP and the importer by providing an
efficient means to conduct exams in a timely manner. The CBP Port
Director has the authority to review the CES and make adjustments
within regulation if necessary. A CBPO is located at the CES facility
to monitor and execute all necessary examinations. CBP reviews cargo
turnaround times and expresses concerns to the CES operator for
improvements. In Philadelphia, CBP and local stakeholders conduct
periodic meetings with the trade community so that concerns can be
expressed and addressed timely. The last single-focused meeting was
held with the trade community on August 24, 2017, where stakeholders
were able to express feedback on current operations. On September 14,
2017, CBP attended two meetings with the Delaware River and Bay
Maritime Exchange, the quarterly Maritime Operations meeting and the
CBP-USDA Agriculture Working Group meeting. The last CES single-focused
meeting was November 7, 2017, and a CBP/Philadelphia Brokers
Association meeting was November 9, 2017.
______
Questions Submitted by Hon. Sherrod Brown
Question. In your testimony, you mentioned that you used your
authority under 19 U.S.C. 1499 to block imports of seafood made with
North Korean forced labor in China. Why did you use section 1499
instead of section 1307 to block the imports?
Answer. CBP has multiple legal tools to combat the importation of
prohibited merchandise, including merchandise made with North Korean
labor in violation of section 302A of the Countering America's
Adversaries through Sanctions Act (Sanctions Act) and merchandise
subject to 19 U.S.C. Sec. 1307. CBP received shipments where it had
reason to believe that the merchandise was prohibited from entry
pursuant to the Sanctions Act. CBP utilized its well established
authority under 19 U.S.C. Sec. 1499 to detain the merchandise so that
its admissibility can be determined. Where CBP has information to
believe that merchandise was manufactured with forced labor, CBP may
act under 19 U.S.C. Sec. 1307 to withhold release of the merchandise
into the commerce of the United States pursuant to regulations
promulgated under section 1307. The authority under 19 U.S.C. Sec. 1499
is appropriate for this case and allowed CBP to act quickly to block
the importation until a final admissibility decision is made, but, I
can confirm that CBP intends to continue to use section 1307 withhold
release orders whenever appropriate.
Question. Have 30 days lapsed since the imports were blocked?
Answer. No. Thirty days will lapse on November 13, 2017.
Question. If not, does CBP expect to request an extension of the
30-day window to obtain more time to review the evidence you have
compiled on the forced labor allegations?
Answer. CBP is still evaluating information related to the detained
shipments to determine their admissibility. At the 30-day deadline, CBP
will take whatever action is warranted with respect to the merchandise
based on information that CBP has developed, and pursuant to the
various legal authorities governing the detention or release of
merchandise. If the information does not support a release of the goods
within 30 days, then this is treated as a decision to exclude the
merchandise for purposes of 19 U.S.C. Sec. 1514, and the importer may
protest the exclusion.
Question. Are you now preparing to issue a withhold release order
against Chinese seafood imports more broadly?
Answer. With respect to the shipments that are currently detained
as discussed during the hearing, CBP is using our existing legal
authorities to enforce the rebuttable presumption, established by the
Sanctions Act, that merchandise made with North Korean labor is
prohibited from entry. Further, CBP is actively collecting and
developing additional information on the region in question and
shipments related thereto. To the extent that said information
reasonably indicates that Chinese seafood imports violate 19 U.S.C.
Sec. 1307, CBP would issue a withhold release order.
Question. Recent news reports have alleged that Haribo gummy bears
are produced in part with forced labor in Brazil. Has CBP taken the
same approach to the gummy bear news reports that it did in response to
the news reports of North Korean forced labor being used in Chinese
seafood products?
Answer. With respect to the allegations of forced labor in the
carnauba wax industry, the CBP Commissioner must first issue a withhold
release order (WRO) before CBP port directors may detain suspect
merchandise to determine admissibility. CBP remains committed to take
vigorous action to enforce 19 U.S.C. Sec. 1307. CBP's approach to news
reports alleging forced labor in the Brazilian carnauba wax industry
differs from its approach with respect to alleged North Korean labor
because the Sanctions Act presumes that merchandise made with North
Korean labor violates 19 U.S.C. 1307 and is therefore prohibited,
whereas allegations with respect to the Brazilian Carnauba wax industry
are not subject to the Sanctions Act presumption and prohibition.
Question. Has CBP blocked any imports of Haribo gummy bears under
section 1499 or section 1307 as a result of the reports?
Answer. CBP has begun to review this serious allegation and has
been in contact with our partners at Immigration Customs Enforcement
(ICE)--Homeland Security Investigations (HSI) to further consider the
available information. To date, we have not detained any shipments
related to the recent news on the Brazilian carnauba wax industry and
downstream products because we have not developed information which
supports this action at this time.
Question. Thank you for your response to the letter Senator Portman
and I and some of our colleagues sent on July 11, 2017 regarding
implementation of the Enforce and Protect Act (EAPA). In that letter,
we asked CBP to revise its rule EAPA to ensure that ``interested
parties,'' as included in the statute, are able to participate in the
duty evasion allegations. In your response you identified several ways
that interested parties could participate in the investigation but did
not commit to revising the rule to reflect the statute's broader term.
Is it your position that CBP will not revise the rule to reflect the
statute's intent that a much broader group of interested parties can
participate in the investigation?
Answer. Our current definition of ``parties to the investigation,''
is based on the statute's use of the phrase ``interested party that
filed an allegation,'' includes the interested party who filed the
allegation and the alleged evader, to clarify that fundamental
procedural rights under EAPA are limited to only the party that filed
an allegation. CBP is evaluating whether to amend the regulatory
definition of ``parties to the investigation,'' for its final
rulemaking.
Question. How many times since EAPA was passed have ``interested
parties'' used the ways included in your response letter to participate
in the allegations?
Answer. We would not necessarily be aware of situations where
parties to the investigation were provided information by third parties
and then filed it in our proceedings. As for the other methods, we have
not yet encountered this. We have recently clarified these alternate
methods for providing information to CBP on our EAPA website. As we
gain experience with more investigations, we anticipate that parties
will avail themselves of these options in the future.
Question. In our letter we also expressed concern that CBP was
requiring allegations to identify the importer in order for them to be
considered by your agency. In your response you indicated that you were
working on a potential legislative change that would allow CBP to
initiate duty evasion allegations where the importer is not identified.
Why do you believe you need legislation to make this change to CBP's
allegation proceedings?
Answer. The EAPA interim final regulations currently require the
identification of the importer in the allegation because a party might
argue that CBP's identification of the importer's name violates the
Trade Secrets Act. Thus, a legislative change exempting this from the
Trade Secrets Act would permit CBP to reveal the identity of the
importer who may be entering merchandise as to evasion and avoid
potential violation of the Trade Secrets Act.
Question. What is the status of the potential legislative fix that
you mentioned?
Answer. CBP has developed a legislative proposal that is currently
being vetted through the interagency clearance process.
Question. And since EAPA was signed into law, how many duty evasion
allegations has CBP refused to act on because the importer was not
identified?
Answer. There has not been an allegation where CBP has declined to
initiate upon an investigation the importer was not identified. Any
cognizable allegation received by CBP will be pursued, and CBP has
tools which may allow it to identify an importer and pursue appropriate
enforcement actions. The Trade Secrets Act only limits the
identification of the importer by CBP through EAPA, not the pursuit of
the underlying allegation or violation.
______
Questions Submitted by Hon. Claire McCaskill
Question. While your nomination is considered by the Finance
Committee, many of the decisions you make and the policies that you
will implement fall under the jurisdiction of the Homeland Security and
Governmental Affairs Committee, of which I am the ranking member.
Will you provide a prompt response in writing to any questions
addressed to you by any Senator of the Homeland Security and
Governmental Affairs Committee, regardless of party?
Answer. I have worked closely with the Senate Committee on Homeland
Security and Governmental Affairs in the past, and understand its
important role in conducting oversight of CBP. If confirmed, I will
ensure that CBP provides appropriate information in response to
requests from the committee, regardless of party affiliation.
Question. The Justice Department's Office of Legal Counsel has
published an internal memo stating that the executive branch has no
obligation to respond to requests for information from individual
members of Congress, including ranking members of committees. This
represents an effort to stonewall minority and other members of
Congress as we perform oversight of Federal agencies. If confirmed, one
of your central tasks will include facilitating responses to
congressional requests for information. Do you commit to fully respond
to requests for information from members of congressional oversight
committees, regardless of party?
Answer. I have worked closely with the Congress in the past, have
testified over a dozen times, and given over 50 briefings to members
and staff, as well as hundreds of written responses and reports. I
understand and appreciate its important role in conducting oversight of
CBP, and, if confirmed, I will ensure that CBP provides appropriate
information in response to requests from the committee, regardless of
party affiliation.
Question. The President has ordered the hiring of 5,000 additional
Border Patrol agents and 10,000 new immigration officers. There are
approximately 23,000 officers that currently comprise the CBP Office of
Field Operations, although CBP is authorized to have just over 24,000
officers. The CBP staffing model that you helped to develop recommended
that CBP have more than 27,000 officers in place. That appears to leave
CBP around 4,000 officers short from the recommended amount.
President Trump has only proposed increases in staffing for Border
Patrol and ICE. Does that concern you?
Answer. CBP remains focused on having the right mix of resources at
and between our Nation's POEs. As the CBP mission continues to evolve
to meet the threat to the Nation and facilitate legitimate trade and
travel, we must continually assess personnel staffing requirements. CBP
utilizes its Workload Staffing Model (WSM) to ensure CBPO staffing
resources are aligned within the existing threat environments, while
maximizing cost efficiencies. The WSM is a data-driven model that
incorporates the most recent year's workload data to determine staffing
requirements and considers factors for future facility enhancements and
projected volume growth in cross-border commercial and passenger
traffic. Updated WSM results continue to show a need for additional OFO
capability to fully meet the standards set by statute, regulation, and
CBP policies, assuming maintenance of current processes, procedures,
technology, and facilities. The most recent results--factoring in the
additional 2,000 CBPOs funded by the FY 2014 Omnibus--show a need for
2,516 additional CBPOs through FY 2018. The administration's submission
of the updated 2017 WSM demonstrated an important commitment to the
requirements it identified, as did the statement of intent in the
President's FY18 budget to submit proposals for authorizing language
that would provide user fee funding to address the gap as we have in
past years.
At the same time, CBP is continuing to address 1,132 CBPO positions
that are vacant as of September 30, 2017. It is my top mission support
priority, and will remain so if confirmed, to achieve full authorized
and funding staffing levels for all frontline law enforcement
positions.
CBP has worked aggressively over the past several years to
implement a multifaceted recruitment strategy that improves frontline
hiring processes and enhances its ability to meet hiring goals. CBP
continues to strengthen all aspects of hiring, which includes
initiatives designed to attract more qualified applicants, expedite the
pre-employment timeline, refine the hiring process to address all
potential bottlenecks, and reduce the attrition rate of the existing
workforce. Staffing the frontline with well-qualified individuals of
the highest integrity remains a top priority for CBP.
Additionally, CBP continues to implement Business Transformation
Initiatives (BTIs) by focusing on faster processing in the air,
pedestrian, vehicle, and cargo environments. CBP makes a concerted
effort to implement the newest and most advanced technologies at the
Nation's POEs to create efficiencies. Along with technological
advancements, CBP is deploying biometrics and processing enhancements
and expanded Trusted Traveler Programs. These transformative
initiatives and technological advancements provide the platform from
which CBP can achieve operational success in the face of increased
border and air traffic, budget constraints, and demand for new and
expanded services at existing and proposed POEs. CBP's BTIs have saved
more than 1 million inspectional hours through FY 2016 and are
estimated to save more than 500,000 inspectional hours or (over 400
CBPOs) through FY 2018.
To support increased staffing needs, CBP continues implementation
of alternative funding strategies to increase revenue sources. CBP
continues to support the Donations Acceptance Program and the
Reimbursable Services Program made permanent with the enactment of the
Cross-Border Trade Enhancement Act of 2016 (Pub. L. 114-279).
Since the pilot program began in 2013, CBP's Reimbursable Services
Program has entered into agreements with more than 60 stakeholders,
providing over 368,000 additional processing hours at the request of
our stakeholders--accounting for the processing of more than 8 million
travelers and over 1.1 million personal and commercial vehicles. In
2017, CBP tentatively selected 64 stakeholders across 54 ports of entry
for participation in the RSP (34 air POEs, 4 for air and sea POEs, 1
for land POE, and 15 for sea POE). To date the CBP Donations Acceptance
Program (DAP) has approved 17 donation proposals totaling $150 million
in planned public and private sector investment in U.S. POEs and
important CBP initiatives. Ten of the 17 proposals have been approved
since enactment of the Cross-Border Trade Enhancement Act in December
2016, while the others were approved under a predecessor pilot
authority provided by Congress. The 10 DAP projects range from
infrastructure improvements, partnerships for the provision of
biometrics services and data, and donations of luggage for canine
training purposes. Partnerships entered into under DAP have and will
continue to enhance border security and promote the safe and efficient
flow of passenger travel and commercial trade.
CBP continues to see a steady stream of applications for new
agreements under this legislation, so while recent results have been
very encouraging, continued growth and expanded utilization of this
program is expected to allow CBP to approve new and enhanced services,
which could not be provided without the Cross-Border Trade Enhancement
Act.
Question. Why should staffing at Border Patrol and ICE be
increased, but not the Office of Field Operations?
Answer. CBP remains focused on having the right mix of resources at
and between our Nation's POEs and continues to address 1,132 CBPO
positions vacant as of September 30, 2017.
Updated WSM results submitted to Congress earlier this year
continue to show a need for additional OFO capability to fully meet the
standards set by statute, regulation, and CBP policies, assuming
maintenance of current processes, procedures, technology, and
facilities. The most recent results--factoring in the additional 2,000
CBPOs funded by the FY 2014 DHS Appropriations Act--show a need for
2,516 additional CBPOs through FY 2018. Again, the administration did
submit the updated WSM and intends to submit proposals for authorizing
language that would provide user fee funding to address the gap as we
have in past years.
Question. Does President Trump's budget proposal give CBP the
resources it needs to achieve operational control of our ports of
entry, which he required in his January 25th executive order and
defined as ``the prevention of all unlawful entries into the United
States, including entries by terrorists, other unlawful aliens,
instruments of terrorism, narcotics, and other contraband.'' \1\ If it
does not, what additional resources would be required to do so?
---------------------------------------------------------------------------
\1\ Executive Order 13767, 82 Fed. Reg 8793 (January 25, 2017).
Answer. As you know, CBP has the dual mission of preventing
suspected terrorists, terrorist weapons, and other contraband from
entering the United States, while also facilitating the flow of
legitimate trade and travel into and out of the United States. CBP
ensures that all persons and cargo enter the United States legally and
safely through official checkpoints and POEs. CBP's over 60,000 highly
trained employees ensure that the agency performs its mission with
---------------------------------------------------------------------------
vigilance, integrity, and professionalism.
The FY 2018 budget request will enable the Non-Intrusive Inspection
Division (NIID) to recapitalize the relocatable VACIS and some mobile
NII systems, average age over 10 years with Multi Energy Portals (MEP),
at land border crossings and seaports. This recapitalization provides
an opportunity to significantly increase NII capacity at POEs. The MEP
concept scans the tractor at a lower energy (safe exposure for the
driver) and the trailer at higher energy (for the seaport
configuration, only the container is scanned). This concept supports a
higher throughput by reducing the total time to scan by eliminating the
need for the driver to leave the truck. The technical throughput of the
system will sustain between 100-125 vehicles per hour. Since the system
works at a higher energy for cargo, it will increase the equivalent
steel penetration capability from approximately 2 inches (VACIS) to 11
inches. In addition, the MEP is expected to have a lower sustainment
cost because it has fewer mechanical parts and a modular construction.
Finally, the concept is designed to free up manpower currently
dedicated to NII roles such as ground guides for enforcement
operations. The MEP will be ``CBP Network ready,'' which will support
transferring image files via the network, either individually or en
masse, and will eventually integrate with CBP enforcement systems
further increasing efficiency and freeing additional manpower for
enforcement operations.
The MEP is the enabling technology that will allow CBP to introduce
the Model Port concept, which is being funded by the city of Donna, TX,
through the Donation Assistance Program (DAP). Unlike typical cargo
POEs the Model Port will not have primary and will allow for the
significant increase in the number of containers scanned while at the
same time reducing the processing times for trucks crossing the
southern border.
The resources requested in the FY 2018 President's Budget Request
will allow enhanced security at the ports of entry. CBP maintains a
robust process for developing requirements for increased security
across a 5-year time horizon to further increase security, within the
constraints of available appropriated funding.
Question. How many additional personnel would be required?
Answer. The portion of the FY 2018 President's budget request
relating to CBP indicates requests an additional 714 full time
equivalent (FTE) employees in FY 2018. This includes personnel for AMO,
Office of Intelligence, Office of Professional Responsibility (OPR),
USBP, OFO's National Targeting Center, and the Office of Trade.
Additionally, the administration submitted the updated 2018 WSM and
intends to submit proposals for authorizing language that would provide
user fee funding to address the gap as we have in past years.
Question. Is it even possible to achieve full operational control
of ports of entry?
Answer. The Office of Field Operations (OFO), within CBP, is
relentlessly self-critical in looking for more efficient and effective
ways to accomplish our mission at the ports of entry. CBP continues to
enhance the security of its processes at ports of entry, beginning at
the point of origin for travelers and goods destined for the United
States.
It is important to note that most of what OFO does every day is
mandated by statute. Every person and good seeking to be admitted into
the United States must present themselves to a CBP Officer. Each day,
more than 1 million people arrive at 328 U.S. POEs by air, land, and
sea where OFO employees prevent the entry of terrorists and instruments
of terror, welcome travelers, and facilitate the flow of goods
essential to our economy 24/7. An additional $11 billion worth of
international trade also crosses our border each day.
CBP Officers at the POEs are the face at the border for all cargo
and travelers entering the United States. While serving in this
ambassador role to the Nation's trade community and internationally
traveling public, over 30,000 CBP Officers, Agriculture Specialists,
Trade and Revenue Staff, and Mission Support Staff, support CBP's
critical anti-terrorism mission; enforce import and export laws and
regulations of the United States; implement immigration policy and
programs; and protect the United States from foreign animal and plant
pests, diseases, and invasive species that could cause serious damage
to U.S. crops, livestock, pets, and the environment.
CBP has considerable risk management capability and physical
control of the movement of people and goods seeking to enter our
country through lawful ports of entry. If confirmed, I will continue to
work with you, your staff, and Congress to outline requirements for
further improvement.
Question. Are you concerned that our ports of entry are
understaffed? Why or why not?
Answer. CBP is always concerned about having the right mix of
resources at and between our Nation's POEs. Sufficient staffing at the
POEs continues to be a key element of a prosperous economy and secure
border. As one of the questions noted above, I had a leadership role in
the development of the CBP WSM, the first rigorous, comprehensive
effort to accurately capture our staffing requirements at ports of
entry. This work was driven by demonstrated operational need,
externally reviewed, and supported by extensive academic research into
the economic impact and benefits of CBP Officer staffing. CBP staffing
increases at ports of entry contribute directly and indirectly to the
U.S. economy. This report is now provided annually, along with
initiatives implemented to enhance our processes, and an assessment of
how we can continue to innovate to improve service.
In 2013 and 2014, the extent to which staffing and wait times
affect the local and national economy was studied by the National
Center for Risk and Economic Analysis of Terrorism Events (CREATE), a
DHS Center of Excellence in Research and Education. In 2013, CREATE
completed a report titled ``The Impact on the U.S. Economy of Changes
in Wait Times at Ports of Entry.'' Their analysis found that an
increase or decrease in staffing at the POEs has an impact on wait
times and therefore on the U.S. economy. The impacts begin with changes
in tourist and business travel expenditures and with changes in freight
costs. These changes, in turn, translate into ripple, or multiplier,
effects in port regions and the overall U.S. economy. In summary,
CREATE found that the impacts on the U.S. economy of adding 33 CBPOs
(their baseline) are $65.8 million increase in Gross Domestic Product
(GDP), $21.2 million in opportunity cost savings, and 1,094 annual jobs
added. While the U.S. Travel Association found every 33 overseas
travelers creates one new American job (Travel Means Jobs, 2012),
CREATE's findings equate to 33 new American jobs per CBPO added.
Leveraging that analysis, CREATE published an additional report
titled ``Passport Inspection Wait Time at U.S. International Airports
and Its Economic Impacts'' in February 2014. The analysis found that
average passport inspection wait time at U.S. airports rose by 25
percent from 2010 to 2013, and the amount of time waited by travelers
by 45 percent. Given projected increases in passenger volumes through
2018, they estimated that CBP-OFO resources will need to grow by 4
percent per year to stabilize wait times at their current levels. The
analysis also found that an increase or decrease in staffing at the
airports has an impact on wait times and, therefore, on the U.S.
economy. The impacts begin with direct changes in tourist and business
travel expenditures of foreign to the United States, as well as some
offsetting increased travel by U.S. resident tourist and business
travel abroad. These changes, in turn, translate into ripple, or
multiplier, effects on the overall U.S. economy. Numerous other studies
have been conducted on the economic impact of wait times at the POEs.
In addition, the economic impact of CBP staffing, CBP is committed
to ensuring the security of our Nation's borders, while continuing to
facilitate legitimate travel and trade. Sufficient staffing resources
are a vital component of ensuring that CBP maintains the highest level
of vigilance along the borders. This can only be achieved with a
specific strategy to maximizing the use of current resources through
overtime and optimal scheduling practices; pursue alternative sources
of financing through legislative proposals adjusting user fees; and
continuing to implement transformative initiatives to reduce costs and
mitigate staffing requirements.
As noted above, the most recent results of CBP's Workload Staffing
Model for CBPOs and Agricultural Resource Allocation Model--factoring
in the additional 2,000 CBPOs funded by the FY 2014 Omnibus--show a
need for 2,516 additional CBPOs and 721 CBP Agriculture Specialists
through FY 2018. To close the gap for CBPOs, CBP proposed minimal
increases for the IUF and COBRA user fees with the submission of the FY
2018 President's budget to Congress which would allow CBP to fund the
positions identified in the FY 2017 Resource Optimization Strategy
without requiring the use of appropriated funding.
Question. In your position as Acting Commissioner, have ever you
raised a concern about staffing levels with former Secretary Kelly or
Acting Secretary Duke?
Answer. CBP is grateful for former Secretary Kelly's support and
the continued support of Acting Secretary Duke on a variety of issues,
not the least of which are CBP's staffing requirements. DHS is well-
versed in the staffing needs of CBP, including those embodied in the
WSM and other reports. We have discussed our staffing needs with DHS on
many occasions and have briefed them on our models. We have also
discussed our hiring challenges with DHS and their guidance and
partnership in effectuating a resolution to these challenges continues
to be critical. We also discuss staffing levels in the context of the
annual budget submission and the decisions made within the FY 2018
President's budget request in support of CBP's most critical needs.
Question. If so, what was your concern?
Answer. As noted above, we have consistently engaged with DHS
leadership. Within the FY 2018 President's budget request, we have
outlined our intentions to increase the USBP and AMO workforce, the
National Targeting Center (which is part of OFO), our trade and revenue
staffing, and a number of mission critical support positions. CBP
continues to use our workload staffing models and use fee requests to
seek balances support of our resource needs.
Question. Given that President Trump's budget proposal includes no
additional funding for CBPOs at ports of entry, it's clear that if you
have raised staffing concerns, you have been unsuccessful to encourage
any addition of staffing at ports of entry. If you are confirmed, how
can we expect you to adequately elevate this important issue and
advocate for the critical needs at our ports of entry?
Answer. During my tenure as Acting Commissioner, CBP has received
consistent support for operational and staffing needs both at and
between ports of entry. While the FY 2018 proposal includes initiative
hiring requests for Border Patrol Agents and Air and Marine Pilots and
Interdiction Agents, as noted above, the administration's submission of
the updated 2017 WSM demonstrated an important commitment to the
requirements it identified, as did the statement of intent in the
President's FY18 budget to submit proposals for authorizing language
that would provide user fee funding to address the gap as we have in
past years.
As mentioned above, I led the development of the WSM, and remain
convinced of its validity and principles, including the economic
benefits of adequate CBP staffing at ports of entry. I am a subject
matter expert in these issues, have had direct access to and support
from leadership at DHS and OMB since I became Acting Commissioner, and,
if confirmed, would feel fully empowered to continue to elevate and
advocate with regard to CBP Officer staffing.
Question. Senator Roberts and I helped get a bill passed that
codified DHS's responsibilities related to securing the food and
agriculture sector. CBP Agriculture Specialists play a critical role in
helping to secure our food and agriculture sectors.
According to the staffing model for CBP's Office of Field
Operations that you were responsible for developing, we have a deficit
of more than 600 CBP Agricultural Specialists. If you are confirmed,
what will you do to make sure that hiring additional Agriculture
Specialists is a priority for CBP?
Answer. If confirmed, recruiting, hiring, and sustaining our front
line workforce, including CBP Agriculture Specialists (CBPASs), will
remain my top mission support priority. CBP Agriculture operations are
largely funded by an Animal and Plant Health Inspection Service (APHIS)
Agricultural Quarantine Inspection User Fee (AQIUF). APHIS recently
reassessed user fee rates to try and encompass costs associated with
Agriculture Quarantine Inspection operations for both APHIS and CBP. In
2015, the new/adjusted fees went into effect, but have not resulted in
sufficiently increased collections to allow for additional hiring. To
date, APHIS fee allotments from the user fee revenues have not fully
covered the cost of CBP agriculture operations at the current staffing
level; which is below the AgRAM recommendation. I intend to continue to
engage USDA to address this discrepancy, and CBP and APHIS have agreed
to revisit AQIUF fee rates in FY 2018.
In the interim, CBP is attempting to optimize operational
efficiencies and assess risks to better assign mission priorities.
Additionally, the gap in CBP Agriculture Specialist staffing will be
partially mitigated through the expansion of agriculture-related
Business Transformation Initiatives (BTI) such as mobile technology
which has benefitted the trade community while providing savings for
CBP.
For example, in FY 2016, CBP conducted an analysis at Port
Everglades where mobile tablet technology initially was deployed. The
study found that the use of the tablet to conduct agricultural releases
of cargo as opposed to the use of a systems release for cargo release
creates a 98 percent time savings within the release process.
Specifically, the average release time drops from 4 to 6 hours to 5
minutes. According to trade community interviews, the use of the tablet
for the 21,000 tailgate inspections last year at Port Everglades
resulted in approximately $20 million savings in additional landed
costs (reduction of overtime for equipment and local warehouse
personnel, late gate fees, truck-related costs, and other non-CBP costs
that commonly occur in 20 percent of agriculture shipments). When
compared to the initial investment of $226,000, OFO has delivered a
significant return for its initial investment at just a single POE and
continues to expand these capabilities nationwide.
Question. President Trump's budget proposal does include $110
million for Non-Intrusive Inspection Systems that scan cargo as it
passes through ports of entry.
Will President Trump's funding request achieve 100% screening of
cargo and passengers at all ports of entry?
Answer. The $110 million for Non-Intrusive Inspection (NII) systems
does not allow CBP to scan with NII technology, 100 percent of cargo
and passengers at all ports of entry for contraband--without impact to
trade and travel. CBP does screen 100 percent of cargo and examines,
through physical search or NII means, 100 percent of cargo that is
deemed high-risk. In addition, CBP scans more than 99 percent of the
cargo arriving into the United States via seaports, land borders, and
mail express facilities for the presence of radiation.
Currently, CBP operates 305 Large Scale NII systems at POE and
Border Patrol Checkpoints throughout the United States. Containerized
cargo or truck cargo identified as high risk by CBP is x-rayed to
determine if further search is necessary. With the current x-ray
technology deployed it would be virtually impossible for CBP officers
to x-ray all containers prior to their release. The systems are
standalone and primarily located in secondary inspection. As currently
deployed, conducting 100 percent scanning with NII systems would create
substantial cargo release delays throughout the United States.
However, CBP is actively working to assess new technology and
concepts of operations to increase the volume scanned. At present, CBP
is conducting technology demonstrations on a new Large-Scale drive-
through x-ray system(s) to determine the effectiveness of utilizing NII
systems in primary inspection to scan a larger portion of vehicles.
The new systems are Drive-Through Multi Energy Portal Systems
(MEPS). The key difference with these new systems allows the driver to
stay in the vehicle while it is being x-rayed. The cab and driver will
pass through the portal which will be x-rayed at a low dose and as the
truck proceeds through the portal the truck and cargo will be x-rayed
at a higher dose. These systems have passed radiation safety tests and
ANSI safety standards. In effect, CBP can increase NII scanning from
approximately 15-20 trucks per hour, as we do now, to potentially >50
trucks per hour (based on vendor specifications). In fiscal year 2018,
these MEPS will be tested at two ports of entry along the Southern
border and at a major east coast seaport. Based on the results, CBP
plans to deploy the system(s) at high-volume ports of entry along the
Southwest border and major seaports which will allow CBP to scan a
higher portion of arrival cargo and personal vehicles arriving at the
United States. The $110 million would allow CBP to install this new
type of technology at many major ports of entry throughout the United
States which will significantly increase the number of inbound
containers x-rayed without jeopardizing the facilitation of cargo and
vehicles.
Question. What will it take to get to a 100-percent screening
standard?
Answer. The Department takes its responsibility to ensure the
security of all goods and containers entering the United States very
seriously, and is committed to mitigating any threat to our citizens
and national interests. DHS remains committed to advancing container
security toward compliance with the law. DHS has produced numerous
reports and analysis across the last two administrations on what 100
percent scanning, which is currently under Secretarial waiver, would
entail. While DHS continues to work on improving scanning technologies
at seaports, the Department is expanding its efforts through broader
interagency engagement to optimize solutions for securing all goods
entering the United States. In so doing, DHS and its partners are
considering more holistic approaches to addressing this challenge, that
may include changes to policy and risk-based approaches to scanning
cargo entering the country, creating a layered security risk based
approach.
CBP does currently perform 100 percent screening of passengers and
cargo through a variety of systems and processes using a layered risk
management approach. Currently, CBP operates 305 Large Scale NII
systems at ports of entry and Border Patrol Checkpoints throughout the
United States. Containerized cargo or truck cargo identified as high
risk by CBP is x-rayed to determine if further search is necessary.
With the current x-ray technology deployed it would be virtually
impossible for CBP officers to x-ray all containers prior to their
release. The systems are standalone and primarily located in secondary
inspection. As currently deployed, conducting 100 percent scanning with
NII systems would create substantial cargo release delays throughout
the United States.
CBP remains committed to maximizing pre-lading examinations of all
high-risk cargo and increasing the percentage of containers scanned
before they are laden on vessels destined for the United States.
Question. Regarding maritime security, do you plan to implement the
9/11 Act requirement for 100 percent scanning of all cargo container
shipments or will you continue to support CBP's current approach of
identifying and examining high-risk shipments?
Answer. DHS remains committed to advancing container security
toward compliance with the law. To move toward 100 percent scanning of
cargo containers, DHS must not only enhance its own programs and layers
of defense, but collaboratively build new partnerships with foreign
governments and private sector entities. These partnership efforts must
address the specific nuclear/radiological threat central to the
objectives of the 100 percent scanning requirement by increasing the
amount of U.S. bound cargo scanned, improving global scanning capacity
overall, reducing the volume of radiological/nuclear materials out of
regulatory control, and improving security in other vectors. In
addition, we must take a more comprehensive view of the broader risk
landscape to identify and build resilience against other threats that
could disrupt the entire global supply chain.
Question. Can you give a sense of the scale of how much more
traffickers rely on routes that go through ports of entry, than those
that cross in more remote border areas?
Answer. Based on intelligence reporting and seizure data, the CBP
Office of Intelligence assesses that most hard drugs (cocaine, heroin,
methamphetamine, and synthetic opioids) are smuggled through the POEs
along the Southwest border (SWB). We believe that the relatively small
size and high value of these loads make smuggling through the POEs the
most viable means to move these drugs. In the case of marijuana, the
bulk nature and relative low value of this drug means that it is
predominately smuggled into the United States between the POEs. In the
case of fentanyl and other synthetic opioids, these drugs are generally
smuggled through the POEs at the land borders in privately-owned
vehicles (POVs) and are normally part of poly-drug loads. An increasing
number of seizures of hard narcotics and synthetics are being made in
the express consignment and international mail environments as well.
We assess with high confidence that when traffickers engage in hard
narcotics smuggling via land borders, they rely on routes through the
POEs more often than traffickers that utilize remote border areas. The
terrain and geography in remote areas often provide operational
impediments to the trafficker, and when you pair the terrain obstacle
with the fact that narcotics traffickers rely on in many cases physical
security scouts and counter intelligence tactics to monitor the
movements of narcotics, both factors greatly increase the preference to
move narcotics through POEs in a semi-controlled smuggling operation,
rather than in between or around a POE.
Question. If we increase enforcement between ports of entry by
expanding the Border Patrol, how do you expect transnational criminal
organizations (TCOs) will respond?
Answer. By increasing enforcement between the POEs by expanding the
U.S. Border Patrol, TCOs will likely shift operations to locations with
less Border Patrol presence. Also, TCOs may increase the use of ``non-
conventional smuggling tactics'' such as tunnels, Unmanned Aerial
Systems, and semi-submersible vessels. TCOs may also incite violence
towards Border Patrol Agents when encountered in an attempt to avoid
capture or loss of narcotics load. CBP may also see a change in tactics
to increase human smuggling operations at POEs and the recent trend of
increased narcotic smuggling between POEs may reverse.
Question. If we increase enforcement between ports of entry by
building a border wall, how do you expect TCOs will respond?
Answer. TCOs will likely respond much the same way to the increase
enforcement between POEs by building a border wall as they would to an
increase of enforcement between the POEs by expanding the Border
Patrol. In the past, TCOs have adapted and shifted operations to
locations they feel are more vulnerable between the POEs or increase--
in volume and sophistication--smuggling attempts at the POEs. Increased
enforcement either through a manpower surge or an expansion in
infrastructure could lead to a change of tactics, such as more frequent
smuggling attempts with smaller loads. An increase in agent assaults as
TCOs become more desperate to get their commodities (narcotics or
people) across the border successfully is also likely. CBP may also see
a change in tactics to increase human smuggling operations at POEs, and
the recent trend of increased narcotic smuggling between POEs may
reverse.
Question. The President requested $1.6 billion to build 74 miles of
border wall and replacement fencing in 2018. At $21.6 million per mile,
that's more than triple what it cost to build existing fencing. I
understand that the Border Patrol in April compiled a list of
operational requirements for the Southwest border.
Will you commit to allowing my staff to review the data related to
the Southwest Border Capability Roadmap if you are confirmed as CBP
Commissioner?
Answer. Yes, I will commit to allowing your staff to review the
data. My team has already taken steps to provide context as well as
data. On October 26, 2017, U.S. Border Patrol provided your staff
members an extensive briefing regarding the Capability Gap Analysis
Process as well as the Capabilities Roadmap. At this time, U.S. Border
Patrol walked through some of the data provided by the sectors in
support of this process. Due to the amount of data provided, follow up
meetings are being scheduled to further walk through the border
investment strategy and the data that supports additional
infrastructure and technology requests. I am committed to providing
Congress the data needed to understand our requirements and the
strategy we are employing to meet those requirements.
Question. What data, metrics, and cost-benefit analyses were used
to determine that 74 miles of wall and replacement fencing is the best
and most cost-effective method for deterring the illegal entry of
people, drugs, and contraband into the country?
Answer. The U.S. Border Patrol maintains a Capabilities Gap
Analysis Process (CGAP) that begins with input from the sector level,
and has identified the necessary capabilities to secure the border. The
four key Master Capabilities are: Domain Awareness, Impedance and
Denial (I&D), Access and Mobility, and Mission Readiness. The USBP
developed a comprehensive, repeatable methodology to help assess its
Southwest border Impedance and Denial needs. A key component of this is
a decision support tool, developed to help evaluate and prioritize
investments. Since implementation of CGAP in 2014, USBP field
commanders have consistently identified impedance and denial, domain
awareness, access and mobility and mission readiness as priority
capability gaps at and along the Southwest border. The analysis is
intended to assist USBP in identifying locations along the Southwest
border that would benefit from an impedance and denial solution and
prioritizing the locations where I&D solutions are needed most. This
analysis helped inform the requirements that were advocated for in both
the FY 2017 Budget Amendment and the FY 2018 Budget Request.
The 74 miles requested includes 60 miles of border wall requirement
in the Rio Grande Valley and 14 miles in San Diego. In the case of RGV,
the wall requirement will support continued barrier requirements
originating from field commanders of the busiest and most vulnerable
areas of the Southwest border. In FY 2016 the Rio Grande Valley Sector
had over 186,000 apprehensions and seizures of over 327,000 pounds of
narcotics.
The 14 miles of wall in San Diego will replace dilapidated barrier
to recapitalize on previous investments and to sustain operational
gains that have been achieved in that area. In FY 2016 this portion of
barrier had over 800 breeches in the existing infrastructure and no
longer met USBP's operational requirements.
The USBP has analyzed statistical information evaluating the
impacts of border barrier on border security operations. That analysis
shows that past use of barrier has had many positive effects that
include increased operational control and improved quality of life,
including safety, for border communities. USBP has seen illicit drug
and human smuggling activity shift from areas where border walls are
deployed to other areas with limited or no border walls.
Securing the border requires an integrated approach including
infrastructure such as border wall and road access, surveillance
technology, response capability and personnel. The border wall provides
an important capability to impede or deny illegal crossings in those
areas where it is applied, as demonstrated in San Diego, Tucson, El
Paso, and Yuma Sectors, but it is not effective alone, and is not an
appropriate solution for every area of the border. Where it is applied,
the border wall must be supported by the ability to detect activity
through advanced surveillance technology, and the ability to respond
effectively with mobile, trained personnel.
Given the dynamic nature of the border environment, all operational
analyses must be regularly revisited. USBP will repeat the impedance
and denial analysis annually as part of its requirements management
process to leverage the latest threat and risk information and inform
future budget requests.
Question. Will the Federal Government exercise eminent domain to
seize private property in order to build the wall that President Trump
has ordered?
Answer. DHS only acquires real property that is necessary to meet
DHS mission requirements. The preferred method of obtaining interest in
real property is through negotiating an offer to sell based upon the
property's fair market value. DHS avoids, with few exceptions, any
acquisition of real property through eminent domain. However, in
situations where voluntary acquisition is not possible, DHS/CBP may
have to consider acquisition through condemnation.
Question. How many private land owners will have their property
seized in order to build the wall?
Answer. At this stage, DHS/CBP cannot state with certainty how many
landowners will be impacted by new border wall construction
requirements. However, as previously noted, the preferred method of
obtaining interest in real property is through negotiating an offer to
sell based upon the property's fair market value. DHS avoids, with few
exceptions, any acquisition of real property through eminent domain.
Question. How many miles of additional border barrier do you intend
to build along the Southwest border?
Answer. U.S. Border Patrol has assessed the entire Southwest border
to determine requirements for impedance and denial. CBP is currently
developing a comprehensive assessment of potential requirements for the
border wall as part of the Border Security Improvement Plan required by
the FY 2017 Omnibus. Any future construction of barrier will be
performed in a manner which is responsive to the operational priorities
as identified by Border Patrol leadership.
Question. How long will it take to build the wall?
Answer. The length of time required to build the border wall is
predicated on the availability of funding with which to execute
construction projects, the total mileage of wall that will be built,
and any necessary land acquisition.
Question. How much will it cost?
Answer. At this time, CBP cannot provide a total cost for border
wall construction. CBP is currently developing a comprehensive
assessment of potential requirements for the border wall as part of the
Border Security Improvement Plan required by the FY 2017 Omnibus. That
said, the Southwest border is a dynamic environment and each mile of
border requires a tailored solution. Costs will vary depending on the
type of barrier required by the terrain, traffic, and threats as well
as specific construction and land acquisition requirements.
Question. In your view, what are the most effective types of
technology that can and should be deployed along the Southwest border
in order to increase border security?
Answer. One of the most effective ways we could enhance border
security would be by extending broadband wireless capability into more
remote areas of the border. One of our challenges is transmitting data
we collect from sensors to command centers and to individual agents and
officers. In fact, we often must construct substantial communications
infrastructure in order to deploy our most capable systems along the
border. Providing extensive and secure broadband capability would
provide us greater flexibility and enhance the reach of our sensor
technologies.
Extending and increasing the capability of our tactical
communications network is also important. Our agents and officers need
reliable communications for operational efficiency and agent/officer
safety.
With respect to sensors, the most effective systems are those that
allow us to detect activity and then to characterize it. Typically,
radars and cameras are useful in this regard. Long range radars (to
detect activity) and cameras that give us high resolution images at a
distance (so we can see, for example, whether someone is carrying a
weapon or not) tend to be very effective in this regard.
Where radars may not be effective (due to terrain or other
obstructions), other types of detection technology are useful. For
example, acoustic or seismic sensors can help us detect tunneling and
low flying aircraft.
The specific choice of technology in a given area is highly
dependent on terrain, geology, and threat. While we can describe
generally the types of technology that are effective, the actual
deployment approach (for example: mobile, fixed, or relocatable;
ground-based or air-based) can vary with the specific needs of
individual operational environments.
Question. If confirmed, what method will you use to evaluate each
technology's effectiveness?
Answer. I will continue to use both quantitative and qualitative
measures to evaluate the effectiveness of technology.
When we deploy technology, we establish expectations for its
performance based on predictions, analysis, modeling and simulation,
and agent/officer feedback. Those expectations set a baseline and we
then measure the performance against those expectations.
One element of our evaluation is a formally defined process called
``operational test and evaluation (OT&E).'' In OT&E, we have our front-
line personnel operate the system in the actual operational environment
and collect data to determine if the system meets our expectations, and
how well it supports our mission performance. Some of the things we
measure are very precise technical characteristics--like effective
range of radars, sensitivity of x-ray equipment, or accuracy of
predictive analytical models, for example. Others are based on feedback
from the agents and officers--like ease of use of information of
systems and clarity of camera images.
We also evaluate how the deployment of technology changes the level
of border security. We can measure things like changes in number of
apprehensions, number of incursions detected, and percentage of
detected incursion that are interdicted. We also rely on the expert
judgment of our front-line officers and agents, who can tell us whether
illegal activity has increased or decreased based on their experience
and other evidence (like changes in terrain as foot paths are created
or become overgrown, amount of trash and other material left behind,
results of interviews with those apprehended).
Based on what we learn from this evaluation process, we update our
plans, expectations, and requirements for future technologies to ensure
we are selecting the most cost-effective tools to support our mission.
Question. GAO concluded in a February 2017 report that CBP has not
developed metrics that could be used to systematically evaluate
existing border fencing's contributions to border security. GAO
recommended that the Chief of the Border Patrol develop appropriate
metrics and use them to make resource allocation decisions.
What steps will you take, if confirmed, to comply with GAO's
recommendation and to develop performance metrics to evaluate the
effectiveness of the physical wall that President Trump has ordered?
Answer. If confirmed, I will work to ensure we have appropriate
metrics in place to make effective and appropriate resource allocation
decisions. The aforementioned CGAP is intended to identify gaps and
other trends between the ports of entry. Once the gaps have been
identified, analyzed and prioritized, USBP views these gaps through the
lens of available resources including personnel, persistent
surveillance, and impedance and denial (i.e., wall)--to address those
threats. The time to procure and available funding shape the immediate
response, while we address the long-term strategic needs. We already
use metrics like the Interdiction Effectiveness Rate \2\ and State of
the Border risk analysis to guide and shape the balancing of resources
to meet the actions of the extremely nimble transnational criminal
organizations. ``Operational Control'' of the border, as directed by
both the Secure Fence Act of 2006 (8 U.S.C. 1701) and Executive Order
13767 (section 4),\3\ is an additional metric that is used to guide our
prioritized investment. When balancing competing interests, DHS and CBP
will use these and other specific methodologies to identify and
validate border control initiatives and investments.
---------------------------------------------------------------------------
\2\ Interdiction Effectiveness Rate (IER) is the percent of
detected illegal entrants who were apprehended or turned back after
illegally entering the United States between Southwest border ports of
entry. IERs are calculated by taking the sum of apprehensions and
turnbacks, and dividing by the sum of apprehensions, turnbacks, and
gotaways.
\3\ The Secure Fence Act and the executive order both define
``operational control'' as the ``prevention of all unlawful entries
into the United States.''
Among other benefits, physical barriers contribute to USBP
increasing certainty of arrest of anyone crossing the border illegally.
In defining illegal immigration as the threat for the purposes of this
question, we know that the threat migrates, generally seeking the path
of least resistance for entering our country illegally. Maintaining a
high certainty of arrest between the POEs depends upon USBP's ability
to accomplish mission essential tasks with the USBP having the
appropriate capabilities to gain, maintain, and expand operational
control of the border. The border wall will provide an important
capability to impede or deny illegal crossings in those areas where it
is applied, as demonstrated in San Diego, Tucson, El Paso, and Yuma
Sectors, but it is not effective alone, and is not an appropriate
solution for every area of the border. Where it is applied, the border
wall must be supported by the ability to detect activity through
advanced surveillance technology, and the ability to respond
---------------------------------------------------------------------------
effectively with mobile, trained personnel.
In this way, the most effective means of achieving operational
control of the border does not rely on any single capability, piece of
technology, or infrastructure. It is a mixture of all of those things,
executed by a properly trained and properly equipped mission ready
workforce.
Question. A September 2017 report by the Office of Immigration
Statistics estimates successful illegal border entries fell from 1.8
million in 2000 to 170,000 in 2016--a 91-percent decline. The report
found that ``the Southwest land border is more difficult to illegally
cross today than ever before.''
What are the main factors, in your view, that are driving the
sizable decrease in border apprehensions and estimated illegal entries
over the past 17 years?
Answer. The most critical factors driving the sizeable decrease in
apprehensions of illegal crossings, and related successful entries
between ports of entry, on the Southwest border have been the
consistent investment over four administrations to increase the
capability of the USBP to secure the border. These investments have
been supported by sophisticated strategies and operational innovations.
The foundation for the positive trends cited in the question was the
forward deployment approach first utilized in 1993. Additionally,
beginning in the early 2000s, the steady increases of Border Patrol
Agents, tactical infrastructure, access and border roads, vehicles and
air assets, situational awareness technology, and geospatial
intelligence, increased interdictions at the border, and community and
international liaisons have attributed to the decrease leading up to
this point. These strategies have assisted the USBP in applying an
enhanced deployment posture at the border. These investments have been
supported and enhanced by development of a comprehensive consequence
delivery system to increase deterrence for those crossing our border
illegally. The results have been higher rates of interdiction
effectiveness, increased costs for crossing the border illegally, and
reduced recidivism. The effectiveness of these efforts depend on CBP's
partnership with ICE which has increased its capacity to detain and
remove.
Question. Do you believe the southern border wall that President
Trump has ordered is necessary given the sharp decline in border
apprehensions and estimated illegal entries?
Answer. Securing the border requires an integrated approach
including infrastructure such as border wall and road access,
surveillance technology, response capability and personnel. The U.S.
Border Patrol maintains a Capabilities Gap Analysis Process that begins
with input from the sector level, and has identified the necessary
capabilities to secure the border. The four key Master Capabilities
are: Domain Awareness, Impedance and Denial, Access and Mobility, and
Mission Readiness. The border wall provides an important capability to
impede or deny illegal crossings in those areas where it is applied, as
demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but it is
not effective alone, and is not an appropriate solution for every area
of the border. It is most effective where there are populated areas
near the line on the U.S. side of the border, where illegal crossers
can vanish within residential and commercial areas.
Where it is applied, the border wall must be supported by the
ability to detect activity through advanced surveillance technology,
and the ability to respond effectively with mobile, trained personnel.
In this way, the most effective means of achieving operational control
of the border does not rely on any single capability, piece of
technology, or infrastructure. It is a mixture of all of those things,
executed by a properly trained and properly equipped mission ready
workforce.
Question. Given the Office of Immigrations Statistics' assessment,
do you agree with the President's assessment that people are ``pouring
across the border''?
Answer. The significant improvements recognized in the recent
Office of Immigration Statistics report are promising, and reflect the
benefits of sustained investment in border security capabilities based
on operational requirements, combined with the effective operational
strategies applied by the U.S. Border Patrol, along with improvements
in enforcement policies and consequence delivery. Despite these
improvements, we continue to see over 25,000 apprehensions of illegal
crossings per month between ports of entry, a number that has been
growing monthly, as well as increasing amounts of hard narcotics
seizures. These threats--over 830 people a day--include previously
deported criminals, hardened smugglers employed by ruthless cartels,
and other potential security risks. It remains CBP's responsibility to
effectively interdict and deter these crossings, in concert with
immigration enforcement partners and supported by appropriations and
authorities from Congress as we strive toward operational control, the
effective deterrence or interdiction of all illegal crossings.
Question. A report published earlier this year by researchers with
the Center for Migration Studies concluded that two-thirds of the
undocumented immigrants who arrived in the United States in 2014 did
not illegally cross a border. Rather, they were admitted on non-
immigrant visas and then overstayed their period of admission or
otherwise violated the terms of their visas.
Would the physical wall that President Trump has ordered decrease
the number of immigrants who enter the country illegally but then
overstay a visa?
Answer. The border wall is a key capability to provide impedance
and denial between ports of entry. While it does not directly respond
to the challenge of those who enter our country legally on visas or
under the visa waiver program and then overstay, it hinders, if not
outright impedes an option for illegal entry where applied.
To address the challenge of overstays, if confirmed, I am committed
to working with my colleagues in U.S. Immigration and Customs
Enforcement, U.S. Citizenship and Immigration Services, the Department
of State, and across the interagency to continue enhancing our
enforcement efforts. Over the last 3 years, CBP has made great strides
in the ability to identify overstays by visa category and country of
origin, as now reported annually to Congress. CBP has a real-time
referral process to ICE for overstays, based on a prioritized
framework. We are also making significant strides toward implementation
of biometric exit as required by statute. If confirmed, I would
continue to direct efforts to pursue implementation of the systems and
programs designed to address overstays as required by statute and
executive order.
Question. Why or why not?
Answer. As noted above, while the physical border wall is not a
capability that directly applies to overstays, they are related. While
a border wall is a key security capability, it is not an all-
encompassing security solution that should be pursued alone. Instead,
securing the border between ports of entry requires an integrated
approach including infrastructure such as border wall and road access,
surveillance technology, response capability and personnel. As the
question suggests, the ports of entry and our immigration benefit
programs must also maintain strong security postures and capabilities
based on enhanced technology, systems, and interagency processes. Both
the Congress and the President have given specific guidance to enhance
security at ports of entry, including implementation of biometric exit,
and to improve the vetting of foreign nationals seeking to travel to
the United States. If confirmed, I would remain committed to pursuing
border security through balanced investments, enhanced programs,
improved operations, and innovative partnerships at ports of entry as
well as between.
Question. If confirmed, what resources do you plan to commit and
what initiatives do you plan to undertake to address the issue of visa
overstays?
Answer. If confirmed, I would continue to support the expansion of
existing efforts, as well as introduction of implementation of enhanced
technology, programs, and operations aimed at reducing visa overstays.
Today, regardless of whether a visitor is traveling via the visa waiver
program (VWP) or under a visa, for almost all visa categories,
overstays are automatically identified the day their period of
admission expires if there is no indication of the traveler having
departed within the time frame established on their admission to the
United States. These figures are generated using CBP's Arrival and
Departure Information System using travel data from CBP records and
commercial carrier manifests. This data is correlated against other DHS
systems to eliminate individuals who have received extensions or
adjusted status and remain lawfully in the United States. The overstay
lists are run through CBP's Automated Targeting System which applies
ICE-defined criteria to prioritize the records. This information is
then provided daily to ICE for appropriate action.
In addition to providing overstay information to ICE for action,
CBP is expanding its review of visa overstays for those cases where the
individual has since departed the United States. CBP currently reviews
select visa overstays and as appropriate places 3- or 10-year travel
bans on their ability to re-enter the U.S. System improvements and
capacity enhancements are underway to expand the classes and numbers of
visa overstays undergoing this review.
CBP is also taking steps to improve travelers' awareness of their
admission status. In May 2017, CBP launched a new online capability for
VWP travelers to look up their compliance with their current admission.
A simple button on a CBP webpage that says, ``How much longer may I
remain in the United States?'' CBP has started sending email
notifications to VWP overstays to advise them they have exceeded their
authorized period of admission and their permission to utilize the Visa
Waiver Program is no longer valid. This program is being expanded to
notify visa holders as well, prior to their term of admission expiring
it is nearing their time to depart. Ten days prior to becoming an
overstay, if a traveler is still in the United States they will be
notified by email and referred to a new online capability for details
on their expected departure date. This program is intended to support
visa and VWP travelers alike.
Additional initiatives addressing overstays include the sharing of
relevant overstay details with systems used by other DHS components, as
well as other government agencies such as the Department of State, and
used by them in the performance of their respective missions. For
example, systems are accessed at consular offices when individuals
apply for a visa (or subsequent visas), and lookouts placed within
these databases indicate status of current or historical visas as it
pertains to the traveler's compliance with the length of time
associated with the terms of any previous admissions. Furthermore,
select overstay information is made available to requesting Department
of State consular offices for all travelers originating from a
particular region of interest to individual consular posts.''
Further, CBP is working towards full implementation of biometric
exit in the air environment within the next 4 years. CBP has deployed
biometric exit technical demonstrations at one departure gate to the
following airports: Hartsfield-Jackson Atlanta International Airport
(Atlanta), Washington Dulles International Airport, Houston George Bush
Intercontinental Airport, Chicago O'Hare International Airport, Las
Vegas McCarran International Airport, Houston William P. Hobby Airport,
and John F. Kennedy International Airport (JFK). Coordination and
partnership with CBP stakeholders including airlines and airports is
critical to the success of deployment of biometric exit in the air
environment.
CBP has also launched a partnership with the Transportation
Security Administration at JFK to test facial biometric matching to
determine how CBP's facial recognition biometric exit might be
leveraged for checkpoint operations. Beginning in early 2018, CBP is
working to fully scale out air biometric exit and will spend 2018
working with stakeholders to get commitment to deploy biometric exit
technology.
Question. The U.S.-Canadian border stands as the longest undefended
border in the world, covering nearly 4,000 miles of land and water.
How do you plan to address the vulnerabilities on the northern
border?
Answer. CBP works closely with DHS to help ensure the Department is
maximizing the benefits of its coordination efforts with northern
border partners through interagency forums, international agreements,
and the resource planning process. CBP had representation on the DHS-
led northern border security threat assessment integrated product team
that is intended to inform subsequent strategy.
Based on the findings of the DHS Northern Border Threat Analysis,
former Secretary Kelly recognized the need to update the Northern
Border Strategy and directed its revision be complete by January 5,
2018. CBP has continued to work with DHS to inform and develop resource
planning and will implement these policies and plans to identify,
assess, and integrate available partner resources at the northern
border. The updated Strategy should be based on an intelligence-driven
threat assessment of the Northern Border (as articulated in the
Northern Border Threat Analysis). That analysis points to our need to
investigate, interdict, disrupt, and dismantle terrorist,
transnational, and other criminal organizations that may utilize the
northern border to harm the United States.
Question. How will your approach differ from that used on the
Southwest border?
Answer. The revised Northern Border Strategy and its associated
implementation plan will serve as key management tools and should
recognize the unique nature and challenges of the northern border,
including its diverse geography, remote expanses, high volume of cross-
border trade and travel, and our long history of social, cultural, and
economic ties with Canada. This context will inform appropriate border
security solutions. The Strategy should also support enhanced domain
and situational awareness, intelligence, and information sharing.
Whether concerning terrorism, drug trafficking, human trafficking,
human smuggling, or other illicit transnational threats, information
sharing and data integration are critical to our ability to secure the
northern border.
Each type of terrain presents its own detection and interdiction
challenges, inhibiting the utilization of a single set of security
measures along the full length of the border. In order to address the
unique northern border terrain, from sparsely populated open plains and
rugged mountains, to major metropolitan centers and vast lakes heavily
utilized for recreational activities, CBP's approach focuses on:
Enhance cross-border land, air, and maritime domain
awareness and improve intelligence and information sharing.
Network current and future persistent wide area surveillance
systems with sensors deployed on aircraft, vessels, and the
AMOC to ensure they share the same operational picture.
CBP actively participates in and promotes integrated
operations with Canadian, Federal, State, local, and tribal
partners resulting in the identification, interdiction,
investigation, and disruption of terrorist actions and illicit
cross-border activities.
Cooperate with Canadian counterparts at the
port level, such as the Integrated Border Enforcement Teams
(IBET) and the Cross Border Law Enforcement Advisory Committee,
which allow flexibility and unity of effort in a resource-
constrained environment.
Enhance participation on task forces and
intelligence groups by maintaining agency participation in the
Northern Border Coordination Center, Drug Enforcement Agency
Task Forces, IBET, and BEST programs.
Intelligence, risk assessments, and capability gap
assessments assist CBP decision makers in optimizing and
appropriately prioritizing the mix of technology, equipment,
and personnel utilized at various points along the northern
border.
In order to continue encouraging the use of the northern
border as an avenue for efficient and lawful trade, finance,
immigration, and travel, CBP continues to promote public and
private sector engagement with domestic and international
partners and stakeholders.
Harmonize trade and travel facilitation and security
requirements with Canada and pursue solutions for addressing
policy differences with impacts on trade and travel security.
Increase public and private sector participation in trusted
traveler and trusted traders programs.
Question. Do you believe that CBP has prioritized adequate
resources for the northern border?
Answer. CBP maintains robust capabilities on the Northern Border
consistent with the considerable amount of legitimate cross-border
trade and travel, and current relative levels of illegal cross border
activity, threats, and trends. CBP strives to maximize the benefits of
its coordination efforts with northern border partners, in particular
the Government of Canada and in particular Canada Border Services
Agency (CBSA) through interagency forums, international agreements, and
resource planning processes. The revised Northern Border Strategy and
its associated implementation plan will serve as key management tools
that will allow CBP to align programs, assess capability gaps, and fill
those gaps in a responsible, cost-effective manner.
Specific to CBP with respect to trade facilitation, economic
growth, and jobs, CBP has worked to achieve increased harmonized
benefits to NEXUS members, enhanced facilities to support trusted
trader and traveler programs, implementation of additional pre-
inspection and pre-clearance initiatives, facilitated cross-border
business, the provision of a single window (ACE) through which
importers can electronically submit all information to comply with
customs and other participating government agency regulations, and
coordination of border infrastructure investment and upgraded physical
infrastructure at key border crossings, among other initiatives.
Question. In recent years, there has been a migration surge from
the Northern Triangle of Central America--El Salvador, Guatemala and
Honduras--to the United States, particularly by unaccompanied minors
and parents with young children.
What role have violence and economic conditions in the region
played in this migration?
Answer. CBP's experience is that both push and pull factors play a
role in contributing to migration. While violence and weak economies in
the Northern Triangle are among the primary push factors that drive
citizens, economic opportunity and inconsistency of application of U.S.
immigration law have been significant pull factors. If confirmed, I am
committed to working across the interagency to address both the push
and pull factors leading to migration from the Northern Triangle.
Question. A few months ago, Senators Tester, Heitkamp, and I wrote
you a letter about Border Patrol radio failures. The letter discussed
severe shortfalls in secure, reliable communications systems along the
southern and northern borders that have been brought to our attention
by the National Border Patrol Council and individual Border Patrol
agents. We have heard reports that the radios many agents use can't
talk with State and local law enforcement, and, in remote areas of the
border, the radios often simply don't work. In some cases, agents have
had to rely on unencrypted personal cell phones to speak to each other.
This is a clear threat to agent safety and border security.
Will you commit to resolving this problem within 90 days of your
confirmation?
Answer. If confirmed, I commit to the pursuit and attainment of
secure and reliable communications by leveraging traditional land
mobile radio and innovative technology such as Long-Term Evolution
(LTE). It is important to note, however, that remedying all northern,
southern and coastal communications and interoperability with
acceptable solutions is not attainable in 90 days. For context, CBP
environments and network infrastructure vary across the enterprise. The
State and local law enforcement agencies our Sectors/Branches/Field
Offices need to interoperate with vary across the Nation. Acquiring the
necessary real estate, site surveys, environmental clearances,
equipment, and supplies for reliable communications towers and networks
can't be done adequately in that time frame in remote and rural areas.
That said, I commit to working on all of these concerns through 90 days
and beyond until we establish a communications network that our agents
and officers can continue to rely on and safely perform their duties
during daylight, through the hours of darkness, in urban areas, and
through the most remote locations along our borders.
Toward that end, CBP is developing a stop gap measure through the
use of alternate technologies such as satellite-based, handheld/mobile
units in field locations where no Land Mobile Radio (LMR) and/or
cellular coverage exists. CBP actively uses satellite-based handheld
radios as a stopgap measure in high mission tempo areas where LMR/LTE
capabilities are non-existent. CBP satellite radios are currently
supported under a Defense Information Systems Agency (DISA) contract
expires FY 2018. DISA contract will have to be renegotiated in FY19.
Additionally, CBP is working with the Department of Homeland Security
(DHS) to construct future tactical communications architecture to
standardize technology, security, and leverage or consolidate
infrastructure components. CBP regularly coordinates with other DHS
agencies, such as Science and Technology (S&T), for future
interoperability and training requirements. CBP TALMEC is actively
coordinating with FirstNet to leverage their planned deployment of
FirstNet sites in locations were CBP has active communications gaps.
Question. What specifically will you do to resolve this problem?
Answer. CBP continues to work diligently towards mitigating any
shortfalls in secure and interoperable radio communications. In
September 2016, the former CBP Commissioner, at my recommendation along
with the Agency Leadership Council, directed the establishment of the
Tactical Air, Land and Marine Enterprise Communications (TALMEC) group
to act as the single and authoritative voice for all CBP tactical
communications representing its stakeholders which include AMO, OFO,
and USBP. As such, CBP is committed to leveraging this group in the
pursuit and attainment of secure and reliable communications
recognizing there are various coverage and interoperability gaps across
the CBP operational environments. USBP leads CBP-wide planning,
budgeting, coordination, and oversight for all operational components
to harmonize requirements across the tactical communications portfolio
to achieve maximum interoperability and functionality in the most cost
effective manner possible. The TALMEC mandate is to be prioritized in
direct relation to strategic goals, risk, and threat assessments. CBP
environments and network infrastructure vary across the enterprise.
This includes interoperability with Federal, State, local, and tribal
civil (F/S/L/T) authorities as well as cross border communications with
Canada and Mexico. As coverage gaps and/or interoperability gaps are
identified, CBP TALMEC will initiate engineering studies and coordinate
with other CBP programs and other F/S/L/T agencies to consolidate or
leverage existing infrastructure where available. With the recent
procurement of dual band and multi-band radios, CBP radios are being
distributed certified to operate on State and local law enforcement
radio networks strengthening interoperability. The added dual and
multi-band frequency allows Sectors/Field Offices/Branches to work with
the corresponding State and local law enforcement entities on
agreements to leverage a State or local radio network to further
mitigate CBPs LMR coverage gaps. Additionally, efforts to expand
coverage and mitigate existing communications gaps along the northern
and southern border are underway in Laredo, TX, Ajo, AZ, Alamogordo,
NM, Indio, CA, Malta, MT, Havre, MT, Plentywood, MT and West Palm
Beach, FL.
Question. President Trump has stated that ``there's no better place
for solar than the Mexico border--the southern border. And there is a
very good chance we can do a solar wall, which would actually look
good. But there is a very good chance we could do a solar wall. . . .
We are seriously looking at a solar wall.''
Does the administration currently have plans to build a solar wall?
Answer. CBP is moving forward as appropriate in the President's
executive order to ``construct a physical wall'' where appropriate to
enhance security along the U.S. border with Mexico. The border wall
system designs standards are developed for specific segments of border
on the basis of operational requirements and operational and
engineering feasibility. To date, CBP does not have a design standard
that incorporates solar panels, although it remains an option for
future specifications, including to power integrated surveillance
technology.
Question. If so, please describe the current status of that
project.
Answer. As noted above, to date, CBP does not have a design
standard that incorporates solar panels.
Question. President Trump has repeatedly stated that Mexico will
pay for the border wall. On June 16, 2015, the day he launched his
presidential campaign, Donald Trump declared, ``I will build a great,
great wall on our southern border, and I will make Mexico pay for that
wall. Mark my words.'' He repeated the claim--and made similar
statements--again and again throughout his campaign. During his
campaign, Trump engaged in call-and-response chants with his
supporters. ``Who's going to pay for the wall?'' he asked. ``Mexico!''
they yelled. ``Who's going to pay for the wall?'' ``Mexico!''
To date, has the Government of Mexico provided the United States
Government with any payments to build the proposed southern border
wall?
Answer. I am not aware of any payments provided by the Government
of Mexico in support of the proposed border wall along the southern
border.
Question. If so, please indicate how much the Mexican Government
has paid.
Answer. I am not aware of any payments provided by the Government
of Mexico in support of the proposed border wall along the southern
border.
Question. Has the Mexican Government indicated that it will provide
the United States Government with any payments to build to proposed
southern border wall?
Answer. I am not aware of any payments that the Government of
Mexico has agreed to make to construct the proposed southern border
wall.
Question. If so, please indicate when the Mexican Government will
provide such payments.
Answer. I am not aware of any payments that the Government of
Mexico has agreed to make to construct the proposed southern border
wall.
Question. Specifications for the wall President Trump has ordered
have varied over the course of his campaign and since he was elected.
In 2015, he suggested the wall would span almost the entire length of
the nearly 2,000-mile Southwest border. He later refined that
suggestion, stating that a wall from 700 to 900 miles would be
sufficient. More than half of the U.S.-Mexico border features natural
barriers, such as mountains and the Colorado and Rio Grande rivers.
President Trump has said the wall will be built from precast concrete
and steel. In February 2016, he said the wall will stand 35 to 40 feet
tall. At another point in the campaign, he said it could reach 50 feet.
Asked at the final Republican presidential debate about former Mexican
President Vicente Fox's denouncement of the wall, Trump said, ``The
wall just got 10 feet taller.'' According to one report, the wall could
reach as high as 80 feet.
Do you support building a wall 50 feet high?
Answer. To explore additional design options for the border wall,
CBP issued two Requests for Proposals to Industry, one for concrete
wall solutions and a second for alternative materials. Prototypes
construction will inform expansion of the border wall tool kit and may
influence designs for future deployment.
The prototypes were recently completed and testing and evaluation
will begin in late November 2017. The results of the test and
evaluation will be used to determine if any prototype design or
attributes of any design merit inclusion in the border wall tool kit
for possible future construction. CBP will be testing a variety of
factors. The two most significant for USBP are how easy it is to climb
and how readily it can be breeched using hand held power tools.
Depending on the environment, in CBP's experience, walls of varying
heights can be effective. We currently have infrastructure deployed at
varying heights up to 18 feet.
Question. Do you support building a wall along the entire southern
border?
Answer. As both the President and then-Secretary Kelly have stated,
the administration does not envision a wall across the entirety of the
U.S. southern border. CBP is currently developing a comprehensive
assessment of potential requirements for border wall as part of the
Border Security Improvement Plan required by the FY17 appropriations
bill. This plan will include requirements developed by USBP for
prioritized impedance and denial capability deployment that will
provide the greatest benefits to border and national security. That
said, the Southwest border is a dynamic environment and each segment of
border requires a tailored solution.
Question. President Trump stated that his administration has
stopped illegal border crossings by at least 78%.
What percentage of illegal border crossings have stopped under his
administration?
Answer. While CBP is still finalizing FY 2017 year-end numbers for
apprehensions and interdiction effectiveness rates, it looks like
apprehensions and illegal crossings will be at their lowest levels in
45 years. The first 4 months of the President's term saw a drop of 51
percent in apprehensions.
Question. While Acting Commissioner, did you ever inform the
President, the DHS Secretary, or the Acting Secretary that a public
statement that the President made was inaccurate?
Answer. I do not believe I have informed the President, the former
DHS Secretary, or the current Acting Secretary of any public statements
from the President that I believed were inaccurate.
Question. In March 2016, the CBP Integrity Advisory Panel (IAP), a
panel established by the Homeland Security Advisory Council (HSAC) and
composed by a group of law enforcement experts, presented a report to
the HSAC, which was adopted unanimously. In this report, the IAP
identified that the rapid growth of CBP without commensurate focus on
accountability and disciplinary mechanisms has led to serious criminal
and disciplinary problems within the agency and that CBP, the largest
law-enforcement agency in the Nation, is ``vulnerable to a corruption
scandal that could potentially threaten the security of our Nation''
and that ``[t]he CBP discipline system is broken.''
How do you plan to address integrity concerns and strengthen
accountability and transparency at CBP?
Answer. CBP learned important lessons from previous times of growth
and much has improved in the past decade. CBP recognizes that we must
work to identify and mitigate integrity concerns throughout the
lifecycle of an employee not just at any one point--during the hiring
process, continuously throughout employment to ensure continued
suitability/eligibility, and with precision to investigate allegations
of misconduct or corruption. Building on this, CBP must hold employees
accountable and be transparent with the public when lapses occur.
CBP has worked internally to increase communication throughout all
areas of the hiring process (recruiting, testing, security, on-
boarding, etc.). CBP has added additional security items to the process
(new automated vetting system, polygraph examination, etc.) and
leveraging technology has allowed for greater information sharing
across the government during the background investigation process. CBP
continues to conduct pre-employment polygraph examinations and
background investigations to applicants for law enforcement positions.
Effective July 1, 2017, OPR implemented the National Security
Adjudicative Guidelines on the adjudication of all initial background
investigations for CBP applicants, appointees, and contractors and
periodic reinvestigations of current employees in National Security
designated positions and/or requiring access to classified information.
The updated guidelines establish a single common set of adjudicative
criteria for all positions which require an initial or continued
eligibility to classified information (security clearance) or
eligibility to hold a sensitive position. Application of these factors
will facilitate a more thorough assessment of an individual's
reliability, trustworthiness, and loyalty to the United States,
particularly as it applies to national security. This implementation
will impact all applicants and appointees to sensitive positions within
CBP, as well as all current employees encumbering sensitive employees,
regardless of whether the position requires access to classified
information. Employees in these positions must maintain eligibility for
a sensitive position as a condition of employment. This includes all
CBP law enforcement positions and any other position designated as
sensitive (e.g., Non-Critical Sensitive, Critical-Sensitive, and
Special-Sensitive). Additionally, employees in sensitive positions will
be subject to continuous evaluation (CE). CE utilizes a set of
automated records checks and business rules to assist in the ongoing
assessment of an individual's continued eligibility.
OPR and component offices regularly provide integrity awareness
training at briefings and in musters in Washington, DC, in the field,
at managerial training, and new employee orientation. In these
sessions, the Standards of Conduct are reviewed and employees are
reminded of their responsibility to report misconduct. Leadership
sessions focus on how CBP supervisors and managers must set the
expectations for conduct and hold employees accountable for violations.
From a proactive standpoint, OPR continues to study known cases of
corruption and analyzes trends in off-duty misconduct to inform
detection of potential misconduct and corruption and to develop lessons
learned for integrity musters and messaging. OPR raises awareness of
corruption through its Trust Betrayed web page featuring instances in
which employees were convicted of engaging in criminal activity that
involved the misuse of official position. In these postings, OPR
describes the activity and the consequences as a means to deter future
cases and let employees know that such actions will not be tolerated.
As a result of interactions with the IAP and in response to its
recommendations, CBP has made many improvements to the complaints and
discipline process, increased transparency for use of force incidents,
and is expanding the cadre of criminal investigators. CBP has
integrated Spanish language capability in the Call Center and has
implemented the Complaint Management System in the field to better
address complaints from the public. Internally, CBP is working to
revise its Table of Penalties and Offenses and is also reexamining the
discipline review process to improve accountability across the agency.
With respect to increasing transparency, CBP has developed a robust
program to review use of force incidents and has implemented
communication protocols when incidents occur and is on track to publish
its first annual report on OPR activities and key statistics on
misconduct and corruption. CBP continues to hire additional criminal
investigators, has developed new specialty operational units, and is
working to enhance its case management system.
______
Questions Submitted by Hon. Thomas R. Carper
Question. Last spring, the CBP Integrity Advisory Panel found that
the agency needs to improve accountability among its law enforcement
workforce. President Trump issued a directive earlier this year
directing to rapidly increase the number of Border Patrol agents by
5,000 agents, or roughly one quarter. Currently, CBP is unable to hire
even the statutory floor of 21,370 agents. Rapid hiring as directed by
the President will likely worsen the agency's accountability problem,
particularly if hiring standards are lowered in order to achieve
increases. If confirmed, will you work to implement the recommendations
made by the Integrity Panel, including incorporating additional random
polygraph examinations for current Border Patrol agents?
Answer. CBP requested the Integrity Advisory Panel review and
worked closely with the Homeland Security Advisory Council to ensure a
robust assessment by a distinguished panel. CBP has aggressively
pursued implementation of the Panel's thoughtful recommendations and to
date has completed actions to address 42 out of 53 recommendations
provided, including those targeted to augment staffing, update
policies, enhance training, and increase transparency. Six
recommendations remain in progress, while CBP is not currently pursuing
the remaining five.
With regard to ensuring integrity for in-service personnel, CBP
agents and officers undergo a 5-year periodic reinvestigation at the
Tier 5 level. CBP is also working to implement a robust Continuous
Evaluation (CE) program which will be anchored by automated vetting
checks for criminal activity, financial information, and other
pertinent information. CBP has not ruled out the prospect of
reconsidering implementation of post-employment polygraph testing of
incumbent law enforcement personnel in the future.
Question. If not, what other or additional accountability and
integrity measures do you intend to implement?
Answer. CBP's approach to promoting workforce integrity is
predicated on rigorous pre-employment screening of job applicants to
weed out unsuitable candidates, increased emphasis on integrity
awareness training, proactive anticorruption detection measures, and
timely and thorough investigations of criminal and serious misconduct
allegations. CBP takes all allegations of employee misconduct
seriously. Under a uniform system, all allegations of misconduct are
recorded in a secure, centralized database. All allegations are then
immediately referred to the DHS Office of Inspector General for an
investigative determination. Under DHS policy, the OIG maintains the
``right of first refusal'' on all allegations involving DHS employees.
Allegations declined for investigation by the OIG are then returned to
CBP OPR for appropriate handling.
The Trade Facilitation and Trade Enforcement Act of 2015 (Pub. L.
No. 114-125) authorized CBP OPR to investigate criminal and
administrative matters and misconduct by CBP employees OPR
investigators average over 20 years of criminal investigative
experience and are equipped with a full complement of investigative
tools, including the latest in forensic and cyber technology. OPR also
utilizes the intelligence-gathering and manpower resources of the FBI
through its membership in 20 of the FBI's 22 Border Corruption Task
Forces and maintains strong, collaborative working relationships with
the DEA, ICE HSI, and other Federal and local authorities. OPR also
leverages its vast array of data collection resources by deploying
full-time analysts to proactively identify suspicious or anomalous
activity that could be indicative of corruption or serious misconduct.
After OPR completes its criminal or administrative investigation, the
Office of Human Resources Management and the Office of Chief Counsel
work collaboratively with OPR and management to propose and impose
discipline when appropriate. OPR continues to study known cases of
corruption to inform proactive detection of potential misconduct and
corruption.
CBP is also working to implement a robust Continuous Evaluation
(CE) program which will be anchored by automated vetting checks for
criminal activity, financial information, and other pertinent
information.
Based on the CBP Integrity Advisory Panel (IAP) recommendations of
the agency's complaints and discipline process CBP has made many
improvements to the process. For instance, we have increased
transparency for use of force incidents, are moving forward with hiring
additional criminal investigators, making technical improvements to its
case management system, reissued the directive on reporting misconduct,
and HRM is revising the Table of Penalties and Offenses and the
discipline review process.
In February 2015, CBP established a Use of Force Incident Team
(UFIT) program and a Use of Force Review Board (UFRB) process in an
effort to increase transparency and accountability. The UFIT and UFRB
is a CBP-wide response plan to investigate, monitor, report, evaluate,
and review use of force incidents involving CBP officers and agents.
With regards to use of force incidents, the UFIT investigation results
can provide recommendations concerning tactics, training, equipment,
and/or safety issues. The investigations can also identify potential
misconduct and administrative violations that may result in
disciplinary or other corrective actions taken against employees.
In 2015, in order to address the misconduct associated with
domestic violence or alcohol related driving offenses (DUI) promptly
and consistently, USBP consulted with the Offices of Internal Affairs,
Chief Counsel, Human Resources Management, as well as gained the
perspectives of District Attorneys in California, Arizona, and Texas in
order to standardize administrative consequences for the entire USBP.
The Standardized Post-Employee Arrest Requirements (SPEAR) outlines a
standardized process for identifying and taking appropriate
administrative action following the arrest of a USBP employee for
domestic violence or DUI. It is designed to ensure consistent
management action post-arrest. Through the application of SPEAR and
consistent messaging through video and slides on the Information
Display System about the program, alcohol related driving offenses have
decreased 14 percent from FY 2016 to FY 2017. As with arrests of all
CBP employees, arrests involving USBP employees decreased in FY 2017.
With 110 reported arrests, USBP decreased 19 percent overall and 8
percent in Domestic/Family Misconduct arrests. USBP continues to
implement its SPEAR program and actively runs musters regarding drug
and alcohol related misconduct.
Question. CBP officers at our ports of entry facilitate the
movement of legitimate trade to the tune of several trillion dollars,
and millions of travelers, across our borders each year. They also
provide front-line defense against the opioid epidemic that has
devastated many in this country, by detecting and interdicting
dangerous and illegal drugs coming across our border. You were
instrumental in developing a workload staffing model to predict
staffing and resource needs within CBP. Has a new staffing plan been
created since that time that indicates a need for 5,000 additional
Border Patrol agents?
Answer. USBP continues to refine its staffing methodology to
determine its requirements to conduct border enforcement operations.
USBP is currently working on the Personnel Requirements Determination
(PRD). This decision tool will support a staffing model with expert
field input and a combination of existing data and field input. Absent
this decision tool and corresponding staffing model, USBP utilized
existing apprehension data and effectiveness ratios, as well as hours
spent patrolling the U.S. border. This information, combined with
decision-maker judgement and experience, allows for both quantitative
and qualitative analysis to ultimately inform the proposed increase for
additional personnel. The PRD will answer: (1) what conditions and
workload are significantly related to current staffing levels; (2) what
do SMEs say are the current, minimal, optimal, and operational control
levels for staffing and what evidence exists to support these
estimates; (3) what would be the optimal distribution of additional
BPAs across sectors and stations based on operational conditions; and
(4) as conditions and workload change, what are the effects on staffing
requirements by sector, station, and zone.
Question. Is there a timeline to complete a new staffing plan?
Answer. To determine a comprehensive staffing plan we first must
understand the requirements of our leaders in the field. As we collect
data for use in our decision support tool known as the Personnel
Requirements Documentation we are also developing a scalable
organizational structure that allows staffing based on available
resources. The decision support tool will reach ``BETA'' testing in
July 2018 and is scheduled to be completed on or before September 2019.
Question. If so, would you commit to providing the results of that
model to Congress?
Answer. Yes, I would provide the results of that model to Congress.
Question. If confirmed, do you intend to work to ensure that
staffing and resource allocation decisions at CBP are based on risk,
threat, and need?
Answer. Yes. If confirmed, I will work to ensure that threat, risk,
and need are primary considerations in staffing and resource decisions
at CBP. As we continue to address the ever-changing threats along the
borders, I will ensure the resources allocations are based on a bona
fide operational need to uphold the laws of this Nation and protect the
United States and the American people.
Question. How does the current staffing model account for trends in
apprehensions at the border?
Answer. The current staffing model, as well as the future Personnel
Requirements Determination, relies on apprehension and other border
census data as a key staffing requirement driver. The number of
apprehensions is a first order measure that drives several workload
variables, to include processing, temporary holding, and transportation
requirements. Data on traffic levels and trends, is combined with a
sector by sector capabilities gap analysis that takes into account the
number of Agents needed to secure areas within a particular area of
responsibility. These totals can include the number of Agents required
to mitigate cross-border risks, such as: (1) agents forward-deployed
immediately at the border; (2) agents to process and care for those
arrested; and (3) agents who are responding to illicit cross-border
traffic identified by technology such as long-range cameras, mobile
scopes, and aerostats, to name a few. As additional technology is
deployed with the appropriate impedance and denial infrastructure,
field leadership continues to evaluate the staffing needs based on the
operational dynamics, threat, and risk.
Question. The Justice Department's Office of Legal Counsel has
published an internal memo stating that the executive branch has no
obligation to respond to requests for information from individual
members of Congress, including ranking members of committees. This
represents an effort to stonewall minority and other members of
Congress as we perform oversight of Federal agencies. If confirmed, one
of your central tasks will include facilitating responses to
congressional requests for information. Do you commit to fully respond
to requests for information from members of congressional oversight
committees, regardless of party?
Answer. Congressional committees play an important role in the
oversight of Federal agency programs. I have a strong record of working
with members of Congress in a bipartisan, bicameral nature to
facilitate this important function. If confirmed, I will work with
members of committees to provide appropriate information, regardless of
party.
Question. Do you commit to providing prompt and meaningful
responses to congressional inquiries from any member of Congress?
Answer. CBP will make every effort to be responsive to
congressional inquiries in a timely manner.
Question. The administration again in late September issued an
Executive Proclamation implementing a travel ban affecting eight
countries, six of which are
Muslim-majority. According to the administration, this proclamation is
based on findings from a ``worldwide review'' of foreign countries'
security, information sharing, and other practices conducted by the
Secretary of Homeland Security. Parts of this report were shared with
foreign governments. However, administration officials have informed
congressional staff that the DHS products cited in the proclamation,
and used to inform and develop the travel ban, will not be provided to
Congress. Federal courts have now blocked implementation of three
separate versions of this ban, and it is clearly appropriate that
members of Congress have a chance to review these documents in order to
determine whether there is a threat basis for these travel bans. Please
describe what role, if any, CBP played in the worldwide review and in
development of the proclamation, directly or indirectly.
Answer. CBP provided limited support, as requested, to the DHS
Office of Strategy, Policy, and Plans who has the lead for the Section
2 Report and related efforts (which is cited in the question as
``worldwide review''), providing comments and information such as basic
statistical data, which may have been used in the worldwide review. CBP
provided pre-decisional, deliberative comments on the review and its
findings in the clearance process. Questions related to section 2 and
the worldwide analysis should be directed to the DHS Office of
Strategy, Policy, and Plans.
Question. Will you commit to provide any documents CBP developed as
part of the travel ban review to Congress, within reason, and in a
classified setting as appropriate?
Answer. I would defer to DHS who maintained lead for this
assessment.
Question. In January, former Secretary of Homeland Security General
John F. Kelly stated before the Senate Homeland Security and
Governmental Affairs Committee that border security starts 1,500 miles
to the south, including in Central America--and that we must work with
our partners there to address some of the ``push'' factors that lead
people there to undertake the dangerous journey to our southern border.
The President's FY18 budget request included only $460 million to
address the root causes of migration from Central America, a nearly 30
percent cut from the amount provided last year. Both the House and the
Senate appropriations committees have largely restored last year's
funding in their fiscal year 2018 marks. Please describe your views on
the importance of working to address the root causes of migration from
Central America as part of a complete border security strategy.
Answer. The ``push'' factors that drive migration from Central
America to our southern border include security and economic factors,
both of which CBP can play a role in addressing.
Regarding security, CBP efforts in the region focus on enhancing
U.S. and local law enforcement abilities to disrupt and interdict human
trafficking and contraband smuggling. Through partnerships with the
Department of State and local agencies, CBP pursues these initiatives
through vetted local law enforcement units, Mobile Interdiction Teams
(MIT), and by providing advisory guidance, training, and best practices
to law enforcement personnel. The overarching goal is two-fold: (1)
improving the security situation in the region to reduce threats to
citizens and create a more conducive environment for economic growth;
and (2) increasing awareness and information about migration and
smuggling activities in the region that may affect the United States.
In terms of economic conditions in the region, wait times for
customs clearance can be long, duties and fees applied can be perceived
as arbitrary, risk management and targeting systems are outdated or
non-existent, and communication between agencies at POEs is often
lackluster--creating an inefficient environment for international trade
and reduced customs revenues for these countries. CBP aims to work with
Central American governments to address these issues as an important
step to encourage investment, trade, and economic growth. CBP is
working with U.S. and Central American partners to share best practices
to increase efficiency, predictability, and transparency for trade at
POEs in Central America.
Question. Do you believe that funding to support the Alliance for
Prosperity is important to securing our southern border?
Answer. Yes, supporting the efforts of the Northern Triangle
governments to enhance their economic and security environment will
serve to address the push factors that drive migration, smuggling, and
illicit trade from the region to the United States. The Alliance for
Prosperity also shows a commitment by the Northern Triangle countries
themselves to address economic and security challenges in the region.
At the same time, we need to be addressing the pull factors with
consistent messaging and enforcement efforts.
Question. President Trump has issued an executive order calling for
the construction of a wall along the entire border between the United
States and Mexico. Every estimate agrees that such an undertaking would
cost several billion dollars. Additional wall construction could sever
wildlife habitat and irreparably damage numerous national parks,
wildlife refuges, forests and wilderness areas that are found along our
border. The U.S. Fish and Wildlife Service estimates that at least 89
threatened and endangered species and 108 species of migratory birds
could be affected by additional border wall construction and
accompanying activities, including some of the most endangered
creatures in the world such as the jaguar and ocelot. Wall construction
could also have severe negative consequences for important regional
ecotourism economies. For example, a wall through the Santa Ana
National Wildlife Refuge, which is a premier destination for birders,
would cut the Refuge off from its visitor center. Should wall
construction move forward, what will you do to minimize and mitigate
damage to wildlife and related ecotourism economies?
Answer. CBP is committed to environmental and cultural stewardship
while performing our core missions of border security and the
facilitation of legitimate trade and travel. Additionally, CBP works
diligently to integrate responsible environmental practices--including
incorporating sustainable practices--into all aspects of our decision-
making and operations.
For border infrastructure projects, CBP's commitment to
environmental stewardship manifests in a number of different ways.
Prior to any construction, CBP conducts natural and cultural resource
surveys and assesses potential impacts. As part of this assessment of
potential impacts, CBP regularly consults with other Federal, Tribal,
State, and local agencies, as well as non-governmental organizations
(NGOs) to ensure protection of the Nation's natural and cultural
resources.
Further, CBP through its own experience and in working with
resource agencies and other stakeholders, has developed a number of
environmental best management practices which are implemented during
project design and construction to reduce potential impacts. These best
managements practices, which are designed help CBP minimize or avoid
potential impacts, have been incorporated into contracts for current
border infrastructure and CBP intends to include them in future wall
construction plans. And, where potential impacts cannot be minimized or
avoided, CBP, where practicable, plans and implements mitigation
measures to offset impacts.
CBP has always regarded environmental stewardship as one of its top
concerns not only during construction projects but also during our day-
to-day operations. Our agents and officers frequently work out in the
environment and understand the importance of protecting the environment
while protecting the border. CBP will strive to eliminate or minimize
impacts to the environment as a result of the implementation of border
wall construction.
Question. Is CBP currently conducting preparation or construction
activities for wall or physical barrier construction in the Santa Ana
National Wildlife Refuge?
Answer. In the FY 2018 budget request, CBP identified 60 miles of
border barrier systems in the Rio Grande Valley (RGV) region of Texas,
to include the area near the northern boundary of the Santa Ana
National Wildlife Refuge (NWR), as an operational requirement
(approximately 3 miles). Planning activities for those locations are
underway and are funded by CBP's FY 2017 reprogramming. These
activities include geotechnical analysis (completed), border/levee wall
system design, and preliminary title research. These planning
activities are not limited to the operational requirements near the
northern boundary of the NWR. CBP is also conducting these activities
for the additional miles in RGV.
Question. Please describe what activities are underway, and the
authority under which those activities are taking place.
Answer. Planning activities for those locations are underway and
are funded by CBP's FY 2017 reprogramming. These activities include
geotechnical analysis (completed), border/levee wall system design, and
preliminary title research. These planning activities are not limited
to the operational requirements near the northern boundary of the NWR.
CBP is also conducting these activities for the additional miles in
RGV.
Question. Please provide an update regarding a cost assessment for
border wall construction.
Answer. At this time, CBP cannot provide a total cost assessment
for border wall construction. CBP is currently developing a
comprehensive assessment of potential requirements for the border wall
as part of the Border Security Improvement Plan required by the FY 2017
Omnibus. That said, the Southwest border is a dynamic environment and
each mile of border requires a tailored solution. Costs will vary
depending on the type of barrier required by the terrain, traffic, and
threats, as well as specific construction and land acquisition
requirements.
Question. Has the cost assessment been completed?
Answer. At this time, CBP cannot provide a total cost assessment
for border wall construction. CBP is currently developing a
comprehensive assessment of potential requirements for the border wall
as part of the Border Security Improvement Plan required by the FY 2017
Omnibus.
Question. Press reports indicate that Border Patrol agents took a
10 year old little girl with cerebral palsy into physical custody after
an emergency surgery on Tuesday, October 24th. Press reports indicate
that the Border Patrol agents waited at the hospital to assume custody
of the child after her emergency surgery despite the fact that her
biological parents are in the United States, appear to be ready and
willing to assume custody, and have not had their parental rights
terminated. The United States Supreme Court has consistently held that
the relationship between the parent and child is constitutionally
protected.
Do you believe that immigrants, with or without legal status, have
a constitutional right to their child? If no, please state your legal
reasoning.
Answer. Many press reports on this matter have been inaccurate. On
October 24, 2017, shortly after 3:00 a.m. Rosa Maria Hernandez (a
juvenile) and her adult cousin, Aurora Cantu, were encountered as
passengers riding from Laredo, TX to Driscoll Children's Hospital in
Corpus Christi, TX via a contracted private medical transport vehicle
(4-door sedan) for a scheduled gallbladder surgery. The vehicle was not
an ambulance. All vehicles traveling northbound on Highway 59 are
required to stop at the Border Patrol checkpoint for an immigration
inspection of all occupants. An immigration inspection on the vehicle
revealed the juvenile was illegally in the United States. The two other
occupants were determined to be USCs. Agents subsequently determined
that Rosa was an ``unaccompanied alien child'' (UAC), since she was not
with a parent or legal guardian. Upon this determination, Border Patrol
agents followed the law as well as all UAC established guidelines and
policies in escorting the juvenile to receive her medical care and then
proper placement with U.S. Department of Health and Human Services
(HHS).
CBP takes its responsibility to protect children and ensure that
they are not trafficked very seriously. The government has a robust
system in place that balances the needs to protect children with the
important interest of maintaining family unity. The William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)
provides certain protections for children who, like this one, are
encountered by CBP and do not have lawful status. This child was not
accompanied by her parents or a legal guardian when she was
encountered, nor did they arrive to take custody of the child.
Accordingly, consistent with law and policy, Border Patrol transferred
her to the HHS Office of Refugee Resettlement for proper care and
placement.
Question. Cite which specific statute permits CBP to assume custody
of a child when the child's parents are ready, willing, and able to
assume physical custody of the child?
Answer. Rosa Maria's parents were not present or able to assume
custody after surgery. As the 10-year-old was not accompanied by a
parent or legal guardian, and was not legally in the United States, CBP
is required by the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, to take the unaccompanied child (UAC) into
custody.
Border Patrol agents allowed Rosa Maria to continue to the hospital
so that she could receive her scheduled medical care. The agents
remained with the unaccompanied child as she was in their custody and
protection, and in the absence of a legal guardian, until such time as
she could be transferred to the U.S. Department of Health and Human
Services (HHS) Office of Refugees and Resettlement (ORR). This period
of time presented an additional opportunity for a parent or legal
guardian to come forward to take custody of Rosa Maria; however, during
the entire time Rosa Maria was at the hospital, no parent or guardian
contacted Border Patrol or came to the hospital in a manner that would
make him or her ``available to provide care and physical custody'' of
Rosa Maria. In this circumstance, Border Patrol had no choice but to
continue to designate Rosa Maria as a UAC.
The TVPRA requires CBP to transfer all UAC to the custody of HHS-
ORR. The TVPRA leaves no discretion for any Federal agency to decline
to turn over a UAC in its custody to ORR, or to otherwise transfer
custody of that UAC to any individual or entity other than ORR. Thus,
once CBP determined that Rosa Maria's parents were not present and
would not appear to take custody of her, and therefore that she was a
UAC, CBP was obligated by law to transfer her into the custody of ORR.
Question. Provide the legal rationale for how this case complies
with the Flores Agreement which favors release of the child and
especially to the natural parents?
Answer. CBP takes its obligations to comply with the Flores
Settlement Agreement seriously. However, in the present case the
TVPRA's requirement that a child may only be released by CBP to her
parent or legal guardians governs.
As mentioned above, Rosa Maria's parents were not present or able
to assume custody at the checkpoint or during Rosa Maria's scheduled
medical care at the hospital. As such, Rosa Maria was designated a UAC.
CBP was required by the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, to take the unaccompanied child
into custody until such time as she could be transferred to the Health
and Human Services Office of Refugees and Resettlement.
Question. The Sensitive Locations policy as currently written on
the DHS website, indicates that staff must acquire approval prior to
carrying out an enforcement action at a sensitive location.
Did Border Patrol agents obtain permission to conduct enforcement
actions with the 10 year old girl who has cerebral policy at the
hospital after her emergency surgery?
Answer. Enforcement actions were not conducted at a sensitive
location, which in this case was Driscoll Children's Hospital. The
unaccompanied child was encountered and taken into custody at an
immigration checkpoint--a CBP operational location--and was already in
Border Patrol custody when she was escorted to the hospital so that she
could receive her scheduled medical care. Because no parent or guardian
of Rosa Maria was present at either the checkpoint or hospital, and no
parent or guardian of Rosa Maria contacted Border Patrol during this
time, CBP reasonably determined that Rosa Maria was a UAC at the time
she was encountered at the checkpoint and remained a UAC while in
Border Patrol custody at the hospital. As such, CBP was obligated by
law to place Rosa Maria into the care of the U.S. Department of Health
and Human Services Office of Refugee Resettlement after her medical
procedure.
Question. Do you believe that the detention and arrest of a 10 year
old child with cerebral palsy at a hospital complies with the policy
concerning sensitive locations? If yes, provide a detailed description
of your reasoning.
Answer. CBP routinely transports persons in its care or custody,
including thousands of persons a year rescued from the elements or
smugglers, for medical evaluation and care at hospitals and other
medical facilities. These efforts to protect the health and safety of
the individuals transported to the hospital in CBP custody do not
implicate the sensitive locations policy in any way.
Again, enforcement actions were not conducted at a sensitive
location, which in this case was Driscoll Children's Hospital. The
unaccompanied child was encountered and taken into custody at an
immigration checkpoint--a CBP operational location--and was already in
Border Patrol custody when she was escorted to the hospital so that she
could receive her scheduled medical care. Because no parent or guardian
of Rosa Maria was present at either the checkpoint or hospital, and no
parent or guardian of Rosa Maria contacted Border Patrol during this
time, CBP reasonably determined that Rosa Maria was a UAC at the time
she was encountered at the checkpoint and remained a UAC while in
Border Patrol custody at the hospital. As such, CBP was obligated by
law to place Rosa Maria into the care of the U.S. Department of Health
and Human Services Office of Refugee Resettlement after her medical
procedure.
Question. In January, the President issued an executive order
mandating that CBP hire 5,000 additional Border Patrol agents, about a
25% increase over the current force, citing a need for additional
agents. CBP is currently unable to hire to, or retain, its statutorily
required number of 21,370 Border Patrol agents.
Given the use of current CBP agents to apprehend a minor following
emergency surgery, please summarize CBP's policies regarding
enforcement priorities.
Answer. CBP operations between ports of entry are focused on
interdicting illegal border crossings at or near the immediate border
and on routes of egress into the United States. While the U.S. Border
Patrol (USBP) may arrest all individuals found to have entered the
United States illegally during border security operations, the vast
majority of apprehensions involve recent border entrants. Each person
who is apprehended is subject to the Consequence Delivery System (CDS),
which ensures the most appropriate actions are applied to each case.
CDS standardizes USBP's decision-making process specific to each
apprehended subject by consistently and systematically applying
consequences and evaluating each consequence's effectiveness and
efficiency. CDS measures the consequences applied to persons illegally
entering the United States against defined alien classifications. CDS
includes the analysis of a variety of possible administrative,
criminal, and programmatic consequences and incorporates a number of
pre-existing initiatives and programs. CBP referrals for further
immigration enforcement action are subject to prioritization and
adjudication by both U.S. Immigration and Customs Enforcement and the
Executive Office of Immigration Review.
Question. Specifically, please describe how CBP assesses threat and
risk in determining whether to carry out enforcement action, and any
other factors taken into account.
Answer. As discussed above, each person who is apprehended is
subject to the Consequence Delivery System, which ensures the most
appropriate actions are applied to each case. CDS standardizes USBP's
decision-making process specific to each apprehended subject by
consistently and systematically applying consequences and evaluating
each consequence's effectiveness and efficiency. CDS measures the
consequences applied to persons illegally entering the United States
against defined alien classifications. CDS includes the analysis of a
variety of possible administrative, criminal, and programmatic
consequences and incorporates a number of pre-existing initiatives and
programs. CBP referrals for further immigration enforcement action are
subject to prioritization and adjudication by both U.S. Immigration and
Customs Enforcement and the Executive Office of Immigration Review.
______
Questions Submitted by Hon. Ron Wyden
Question. Unlike sales at duty-free stores at U.S. airports, which
are limited to personal use quantities, sales at such stores at U.S.
land ports of entry are unlimited. I understand that ICE and CBP have
found that sales of tobacco products at duty-free stores on the
Southwest border have resulted in diversion back into the United States
as well as the smuggling of such products into Mexico, some of which is
linked to organized crime, including the use of these sales for money
laundering. These problems are exacerbated by the fact that there are
no limits on the quantities of such duty-free products that can be sold
along the border.
If confirmed, would you support the imposition of personal use
restrictions at duty-free stores at ports of entry other than airports?
Answer. I am aware of this challenge, and would be happy to work
with you, Senator Wyden, and other members of the committee to address
these concerns. As you note, the current statute only provides for a
personal quantity limit for airport duty free stores. Under my
oversight in the Office of Field Operations, we did conduct enforcement
operations and share information with Mexican authorities where
appropriate on duty free purchases that seemed designed to evade
Mexican laws or perhaps be diverted back to the United States.
Accordingly, I am familiar with the issues and would support a review
of potential solutions, such as a limit on sales that would create
barriers to these smuggling and money laundering efforts.
Question. On May 20, 2016, Senator Wyden sent then-Commissioner
Kerlikowske a letter regarding concerns about the increasing volumes of
fentanyl and other illicitly-produced opioids entering the United
States. A recent Morbidity and Mortality report compiled by Centers for
Disease Control and Prevention researchers found sharp increases in
fentanyl-related deaths, a trend that press reports suggest continues
to this day. Please update the agency's response to Senator Wyden's May
2016 letter, including providing data current through September 30,
2017, for all of the data-related requests.
Please provide up to date figures on the amount of illicit
synthetically made opioids that CBP has seized during fiscal year (FY)
2016. Which illicit synthetic opioids are most frequently seized?
Answer. The most frequently seized synthetic opioid is fentanyl.
Overall CBP-OFO Fentanyl seizures have increased by 159 percent when
comparing FY 2016 to FY 2017. This surge is driven by the 408 percent
increase in fentanyl seizures in the Express Consignment, 180 percent
increase in the Mail environment, and 126 percent in the Southwest-
Land-Border.
OFO Fentanyl Seizures (Kgs) by Mode
------------------------------------------------------------------------
FY 2016 FY 2017
-------------------------------------------- % Change
Mode of Transport Weight Total Weight Total (Kgs)
(Kgs) Incidents (Kgs) Incidents
------------------------------------------------------------------------
POV--land 145.92 14 323.69 52 122%
------------------------------------------------------------------------
Other--land 25.42 6 63.49 13 150%
------------------------------------------------------------------------
Express 21.42 40 108.88 118 408%
consignment
------------------------------------------------------------------------
Mail 15.33 51 42.93 227 180%
------------------------------------------------------------------------
Air (other) 0.15 5 0.38 2 153%
------------------------------------------------------------------------
Total 208.25 116 539.38 412 159%
------------------------------------------------------------------------
Please provide a geographic breakdown.
Origin Countries From Which the Seized Synthetically Made Opioids Were
Shipped
------------------------------------------------------------------------
FY 2016 FY 2017 Grand Total
Top Countries (Kgs) (Kgs) (Kgs)
------------------------------------------------------------------------
Mexico (through the border) 171.35 387.44 558.79
------------------------------------------------------------------------
China (shipped from) 31.09 121.46 152.55
------------------------------------------------------------------------
Hong Kong (shipped from) 4.12 26.69 30.81
------------------------------------------------------------------------
Destination State or District Within the United States of the Illicit
Synthetically Made Opioids That Were Seized
------------------------------------------------------------------------
FY 2016 FY 2017 Grand Total
State (Kgs) (Kgs) (Kgs)
------------------------------------------------------------------------
California 164.89 332.72 497.61
------------------------------------------------------------------------
Arizona 9.04 63.00 72.04
------------------------------------------------------------------------
Tennessee 12.88 47.16 60.04
------------------------------------------------------------------------
Ohio 3.45 29.38 32.83
------------------------------------------------------------------------
Kentucky 0.22 29.70 29.92
------------------------------------------------------------------------
New York 8.25 16.74 24.99
------------------------------------------------------------------------
Illinois 2.78 15.19 17.97
------------------------------------------------------------------------
Florida 2.67 1.65 4.32
------------------------------------------------------------------------
Massachusetts 3.76 3.76
------------------------------------------------------------------------
Texas 1.79 1.79
------------------------------------------------------------------------
New Jersey 0.85 0.85
------------------------------------------------------------------------
Georgia 0.62 0.62
------------------------------------------------------------------------
Oregon 0.37 0.37
------------------------------------------------------------------------
Michigan 0.25 0.25
------------------------------------------------------------------------
Indiana 0.00 0.14 0.14
------------------------------------------------------------------------
Alaska 0.06 0.06
------------------------------------------------------------------------
Minnesota 0.05 0.05
------------------------------------------------------------------------
Hawaii 0.01 0.01
------------------------------------------------------------------------
Grand Total 208.25 539.38 747.63
------------------------------------------------------------------------
These statistics are constantly evolving as lab results are
confirmed and records reconciled.
Question. On January 2, 2017, a multi-hour passport processing
system outage led to long delays for international passengers entering
the United States. A recent Office of Inspector General (OIG) report
estimated the outage ``affected approximately 119,774 international
travelers nationwide'' including ``[a]bout 13,000 passengers who
arrived at Miami International Airport'' where long lines ``created
hazards and security concerns . . . including difficulties with crowd
control, temperature, health emergencies, and officer and public
safety.'' Miami airport officials alone estimated that ``258 CBPOs
worked 762 overtime hours, resulting in more than $58,000 in overtime
pay.'' Media reports suggest that long delays at other airports around
the country may have led to similar situations. Given that U.S.
airports handle more than 300,000 incoming international air passengers
every day, such outages are extremely troubling and must be addressed.
Please describe the issues that led to the nationwide outage in
January.
Answer. The root cause was determined to be a culmination of
workload and background processes competing for system resources. The
competing processes included the high transaction volume due to holiday
traffic, application code with an inefficient way of accessing the
database, storage limitations, and a resource intensive background
``clean up'' process. Our Office of Information Technology has
addressed the specific issues that led to the outage. CBP has also
committed to enhancing availability in our critical systems as well as
improving the availability and speed of our back up capabilities.
Question. Please disclose any instances in which a similar issue
has taken place.
Answer. There have been no recent instances in which a similar
issue took place. As noted above, on January 2, 2017, a unique
combination of circumstances involving the culmination of workload and
background processes competing for system resources caused the outage.
Question. Please describe the steps that Customs and Border Patrol
has taken and additional steps it plans to take to ensure such an
outage does not occur again.
Answer. To ensure such an outage does not occur again, CBP has
taken the following steps:
Implemented a programming change to address the error
handling to include defensive logic in the application code
that will protect against the condition that caused the
problem.
Increased system resources (memory and computer processing)
available for the application.
Updated the background ``clean up'' process to occur more
frequently in shorter bursts; minimizing the consumption of
resources.
Increased sensitivity on monitoring alert settings to
initiate a production support call earlier.
Initiated improvements to backup capabilities.
Question. Lastly, please describe the steps--either on their own or
in conjunction with other agencies--that CBP has taken to ensure the
health and safety of passengers and employees if such an outage takes
place again.
Answer. OFO performs certain functions related to restricting,
regulating and interdicting cross-border flows of people and products.
During the performance of a range of inspectional activities, a
priority is the safety and health of the American public, travelers and
personnel. We strive to make proactive and continuous improvements to
enhance safety at our ports. Particularly in airports, we work closely
with our airport authority partners, whom we rely on for certain
services as we work in their facilities. OFO works with our
stakeholders, offering the opportunity to contribute and provide
feedback in areas of services and participation in tabletop exercises.
At most major arrival airports, joint procedures have been developed
and exercised with terminal operators and carriers.
Question. Please provide any after-action reports related to the
January 2nd passport system outage, either for specific ports of entry/
airport, or for the agency as a whole.
Answer.
U.S. Customs and Border Protection
Office of Information and Technology
Office of Field Operations
Traveler Processing Problems on January 2, 2017
AFTER ACTION REPORT
Incident Summary:
On January 2, 2017, from approximately 1700 to 2100 EST, TECS--the
system used to process travelers at Ports of Entry (POEs)--experienced
a system degradation/outage with airline manifest processing and Air/
Sea primary applications which had an impact on traveler processing.
The degradation/outage was not caused by a cyber-attack or other
malicious activity.
CBP took immediate action to address the issue and CBP officers
continued to process international travelers using alternative
procedures at airports experiencing the disruption. CBP officers worked
to process travelers as quickly as possible while maintaining the
highest levels of security, but travelers at some ports of entry
experienced long wait times.
During the technology disruption, CBP had access to national security-
related databases and all travelers were screened according to security
standards.
CBP Office of Information and Technology (OIT) Duty Officers initiated
a troubleshooting call at 1700 EST on January 2, 2017. Actions were
taken during the troubleshooting that did provide some temporary
relief. The problem continued, however, so at 2040 EST on January 2nd,
portions of Primary traveler processing were moved to mitigation mode,
which involved switching TECS query services and manifest processing to
the CBP mainframe. While this option was discussed earlier in the
troubleshooting call, at the time the technical team thought the other
corrective actions implemented would resolve the issue.
Root Cause:
The root cause was determined to be a culmination of workload and
background processes competing for system resources. The competing
processes included the high transaction volume due to holiday traffic,
application code with an inefficient way of accessing the database,
storage limitations, and a resource intensive background ``clean up''
process.
It has been noted that the system did not encounter similar conditions
during the Thanksgiving and Christmas holidays with similar volume of
travelers. OIT determined the corrective actions and they include the
measures noted below.
Office of Information Technology
Actions Following Outage:
Conducted a cyber security analysis of the incident and found no
indications of any malicious activity.
January 2nd:
Updated the background ``clean up'' process to occur
more frequently in shorter bursts; minimizing the consumption of
resources.
Increased sensitivity on monitoring alert settings to
initiate a production support call earlier.
January 6th--Implemented a programming change (as recommended by
Oracle subject matter experts) to address the error handling to include
defensive logic in the application code that will protect against the
condition that caused the problem. The airports were activated in a
phased approach starting with Atlanta and Miami. As airports were
activated, they were monitored closely to ensure that corrective
actions effectively addressed the root cause.
Added additional infrastructure for Air/Sea processing to support
larger volumes of traveler processing.
Identified and implemented improvements to system monitoring. The
monitoring that was used on January 2nd did not provide an accurate
understanding of the seriousness of the problems at the airports. To
ensure faster and more responsive actions going forward, OIT
implemented the below changes to the monitoring of airport processing
systems:
Established manual review of both Automated Passport
Control (APC) and Traveler Primary Arrival Client (TPAC) status on a
regular basis, with hourly reports on the system health checks.
Reduced the time threshold for when to initiate an
alert about a system problem (i.e., after 2 minutes of being in red
status).
Added monitors to all critical areas within the Data
Center for better display of monitoring tools.
Configured application performance management tools
to automate issuance of alerts for unresponsive or slow business
transactions impacting end users, database connection issues,
application error rates, and server crashes.
Monitoring of social media for first-hand accounts of
traveler impacts as a fail-safe for alerts about airport processing
problems.
Identified and implemented improvements to troubleshooting call
procedures, including:
OIT will call major locations to validate that the
problems seen through monitoring match the operational reality. For the
January 2nd incident, OIT monitors were only showing a slowdown, but
the reality was that the system was unavailable to process travelers.
Office of Field Operations
Miami International Airport
The outage at Miami International Airport lasted over 5 hours and
affected 13,000 travelers. Although port management quickly implemented
mitigation protocols, delays resulted in potentially unsafe conditions.
Flights were permitted to arrive in the FIS without metering.
Processing was slowed by the carriers scrambling to locate paper I-94
forms for non-immigrant travelers. Processing was also slowed due to
some officers having issues accessing Automated Targeting System (ATS)
and the Portable Automated Lookout System (PALS). Due to the large
number of people, HVAC systems in the North Terminal were unable to
produce enough cool air, and some passengers required medical attention
due to the high temperatures.
Miami OFO Actions Implemented Following Outage:
PALS workstations will be routinely tested.
During a full outage when PALS is deployed, all available officers
that are performing other assigned duties will be redirected to
primary.
Immediate communication with stakeholders will be effected.
At a minimum a GS14 will be on site to work with stakeholders.
During a complete outage and the FIS is full, Miami Dade Aviation
Department (MDAD) has pre-positioned water in five designated areas.
These are areas where the passengers will be held and not allowed into
the FIS until the FIS traffic is reduced and it is safe to move.
Miami Dade Police Department (MDPD) and CBP resources will be
deployed to the FIS and the five designated areas for crowd control.
A Miami Dade Fire Department (MDFD) paramedic team will be deployed
to the FIS.
MDAD will make PA announcements in the five areas concerning the
status of processing.
Airline stakeholders will be on site to answer passengers' onward
flight questions.
OFO Headquarters Actions Following Outage:
A review of port response indicated that ports followed mitigation
guidelines as specified in CBP Directive 3340-041.
OIT and OFO developed a process to eliminate the need for paper I-
94s by using the advance passenger manifest information to generate
electronic I-94s once system functionality is restored.
OFO worked with OIT to develop a more robust mitigation process by
phasing out ATS-QQ and implementing Mobile Primary and Mobile Query
applications.
These Mobile applications can be used on a desktop or
mobile device, utilize document readers to quickly input passenger
data, and allow the officer to record class of admission during
mitigation.
Mobile applications can also utilize CBP or port Wi-
Fi in the event of local network issues, and if used on mobile devices
can utilize battery power in the event of a power failure.
In January 2017, OFO convened a working group to update national
mitigation guidance.
The guidance mandates timely systems outage
notification to stakeholders, including air carriers, port authority,
and terminal operators.
This also provides direction for the use of the new
mobile mitigation tools.
OFO and OIT developed new mitigation modes for APC and TPAC, OFO's
main resources for primary processing in the air and sea environments.
These automated modes allow APC and TPAC to process passengers in a
timely manner in the event that manifest information is unavailable due
to an outage.
OFO worked with OIT to develop a new version of PALS, a CD-ROM based
data source used for network or power outages. This new PALS replaces
the monthly mailing of CD's to ports with a one-time distribution of
encrypted USB data sticks which are automatically updated with new
enforcement records every 2 weeks. Unlike the old PALS, this new
application can be used with a document reader to expedite traveler
data input.
OFO is working with OIT to develop port level system dashboards to
provide local port management with real-time visibility on system
health and strength.
OFO is working with OIT to develop a real-time Airport Wait Times
Dashboard. This dashboard will replace the current historical dashboard
on www.cbp.gov and provide accurate real-time wait time information for
the traveling public.
Question. I have described how I believe ``digital is different.''
Do you believe, as Chief Justice Roberts has said in the Supreme Court
case Riley, that ``cell phones differ in both quantitative and a
qualitative sense from other objects?''
Answer. CBP understands that electronic devices often contain
personal information and, for that reason, has taken steps for many
years to ensure that border searches of electronic devices are
conducted in a judicious and transparent manner. As reflected in CBP's
governing policy directive addressing this issue, which has been
available to the public since 2009, CBP has provided specific guidance
to our officers about conducting these searches in addition to
supporting robust oversight and monitoring to ensure that CBP continues
to respect the privacy of international travelers while performing its
vital law enforcement mission. Furthermore, CBP takes steps to ensure
that it only searches information residing on the device itself, and
our agency has applied policy limitations that are above and beyond
those which are constitutionally required. Border searches of
electronic devices affect less than one-hundredth of one percent of
travelers entering the United States, a significant majority of which
do not concern U.S. citizens. Additionally, we carefully monitor the
evolving jurisprudence around digital media, and I am committed to
ensuring that strong policies and transparent practices governing our
examinations of these devices are in place and improved iteratively.
Question. As you know, the Protecting Data at the Border Act I have
introduced with Senator Paul requires a warrant to search a device at
the border. Understanding that your agency can move far more quickly
than Congress, will you revise your internal policies to require a
level of suspicion nationwide before requesting or seeking assistance
to search a device?
Answer. CBP is aware of the proposed Protecting Data at the Border
Act and respects the rights of our citizens. The concerns at issue are
why we conduct border searches of electronic devices in a limited,
judicious manner and ensure searches of electronic devices adhere to
the strict and clearly defined guidelines set forth in CBP Directive
3340-049. That said, searches of electronic devices at the border
routinely result in significant enforcement actions despite the rarity
of their use.
As an example of the care with which CBP applies this authority,
when requesting subject matter assistance in furtherance of a border
search of electronic devices, CBP Directive 3340-049 authorizes CBP
officers to transmit electronic devices or copies of information
contained therein to other Federal agencies only when they have
reasonable suspicion of activities in violation of the laws enforced by
CBP. Moving forward, and in recognition of the requirement described in
section 802(k) of the Trade Facilitation and Trade Enforcement Act of
2015 (TFTEA), which requires CBP to review and update at least every 3
years its standard operating procedures relating to searches of
electronic devices at ports of entry, we are currently reviewing CBP
Directive 3340-049 and intend to revise and update it to reflect
evolving operational practices on this important and sensitive issue.
Question. The 9th Circuit has required reasonable suspicion for
searches of devices at the border. As such, people in Portland
currently get greater protection than travelers flying into New York or
Chicago. Airports in the 9th Circuit are some of the busiest in the
United States, with tens of millions of international travelers
entering the country through them each year. If CBP has been able to
protect our borders and, more broadly, U.S. national security, while
following a reasonable suspicion standard in the 9th Circuit, why could
the agency not also adopt the same standard elsewhere in the country?
Answer. CBP dutifully adheres to judicial rulings and will continue
to carry out our mission of protecting the homeland as permitted by
law. CBP is responsible for ensuring the safety and admissibility of
the goods and people that enter the United States. Doing so in an
increasingly digital world depends on our ability to lawfully inspect
goods--electronic or otherwise--entering the United States. Moreover,
under U.S. immigration law, applicants for admission bear the burden of
proof to establish that they are clearly eligible to enter the United
States, and all items entering the country are subject to inspection.
In compliance with the requirements of the Trade Facilitation and Trade
Enforcement Act of 2015, CBP is actively engaged in reviewing its
governing policy on the border search of electronic devices, to include
setting appropriate policy limitations for these searches, particularly
when forensic review is involved.
Question. When meeting with my staff, CBP personnel stated that the
agency does occasionally perform border searches of Americans'
electronic devices at the request of other governmental agencies.
Answer. CBP has the authority to inspect and examine all
individuals and merchandise entering or departing the United States,
including all types of personal property such as electronic devices.
See, e.g., 8 U.S.C. Sec. Sec. 1225; 1357; 19 U.S.C. Sec. Sec. 482; 507;
1461; 1496; 1581; 1582; 1589a; 1595a; see also 19 CFR Sec. 162.6,
stating that ``[a]ll persons, baggage, and merchandise arriving in the
Customs territory of the United States from places outside thereof are
liable to inspection and search by a Customs officer.'' CBP exercises
its border search authority in accordance with its statutory and
constitutional authority. More specifically, pursuant to CBP Directive
3340-049, the use of other Federal agency analytical resources, such as
translation, decryption, and subject matter expertise, may be needed to
assist CBP in reviewing the information contained in electronic devices
or to determine the meaning, context, or value of information contained
in electronic devices. CBP's Directive specifies how officers may
pursue seeking such assistance.
Question. In each of the last 5 calendar years, how many searches
of electronic devices at the border did CBP perform at the request of
another Federal agency?
Answer. CBP does not have a tracking mechanism to account for
electronic devices searched at the border with the assistance of
another Federal agency. However, the total number of border searches of
electronic devices performed for the past 5 fiscal years are as
follows: 5,085 for FY 2012; 5,709 for FY 2013; 6,029 for FY 2014; 8,503
for FY 2015; 19,033 for FY 2016 and 30,151 for FY 2017. Although the
trend has been for an increasing number of searches, it remains that
CBP examines the electronic devices of less than one-hundredth of one
percent of travelers arriving to the United States. Over the past few
years, CBP has adapted and adjusted our actions to align with current
threat information, which is often based on intelligence. As the threat
landscape changes, so does CBP. Additionally, travelers are carrying
more devices and more CBP officers have been trained on electronic
device searches as more travelers than ever before are arriving at U.S.
ports of entry with multiple electronics. Searches of electronic
devices at the border routinely result in significant enforcement
actions despite the rarity of their use.
Question. What does CBP require of the requesting Federal agency
before stopping an American at the border and searching their
electronic devices?
Answer. The decision to conduct a border search of an electronic
device rests exclusively with CBP and is conducted in accordance with
applicable law and policy, including CBP Directive 3340-049. CBP
decisions to perform border searches of electronic devices can benefit
from information provided by other law enforcement agencies.
Question. Must the request be made in writing and do they have to
describe what information or evidence of a crime they are looking for?
Answer. CBP liaises with other Federal agencies in many ways,
including through the Joint Terrorism Task Force (JTTF). CBP exercises
its authority to search electronic devices in concert with law and
policy and driven by CBP operational need to inspect goods and persons
crossing our border. CBP decisions to perform border searches of
electronic devices can benefit from information provided by other law
enforcement agencies.
Question. During the past 5 years, have CBP personnel ever
surreptitiously installed surveillance software or malware onto a
traveler's device during a border search?
Answer. To my knowledge, CBP personnel have not surreptitiously
installed surveillance software or malware onto a traveler's device
during a border search.
Question. Alternatively, has CBP assisted another government agency
in covertly installing malware onto a traveler's electronic device?
Answer. To my knowledge, CBP personnel have not assisted another
government agency in covertly installing malware onto a traveler's
electronic device.
Question. In your due diligence responses to questions submitted by
staff on June 20, 2017, you enclosed a copy of a muster marked ``For
Official Use Only'' detailing procedures for handling devices at the
border. I request that you make that muster public and submit it into
the record of this hearing alongside your responses to these questions.
If you choose not to make that muster public, please describe your
rationale for continuing to mark it ``For Official Use Only.''
Answer. The muster speaks to internal operational policy and
protocol and contains law enforcement sensitive material. Nevertheless,
CBP has explained publicly that its border searches extend to the
information that is physically resident on the device, and does not
extend to information that is solely located on remote servers (known
as solely ``in the cloud''), which is the subject of that muster.
Question. Additionally, please describe for the public what
procedures are included in the muster that ensures agents only search
for information not found exclusively on remote servers.
Answer. Border searches of electronic devices extend to searches of
the information residing on the physical device when it is presented
for inspection or during its detention by CBP for a border inspection.
To ensure that data residing only in the cloud is not accessed,
officers are instructed to ensure that network connectivity is disabled
to limit access to remote systems.
Question. How many times did border officers search electronic
devices during FY 2017?
Answer. CBP processed 388,379,188 travelers during FY 2017 and
conducted 30,151 border searches of electronic devices during that time
period.
Question. Of those border device searches, how many were supported
by reasonable suspicion?
Answer. CBP does not compile this specific data set, but strictly
adheres to court orders in how it conducts border searches.
Question. Of those border device searches, how many were of U.S.
citizens?
Answer. There were 6,003, or fewer than 20 percent.
Question. Many of our discussions have included reference to your
privacy policy governing device searches at the border. The American
public deserves more certainty than guidelines can provide, which is
why I wrote the Protecting Data at the Border Act. Will you make public
any changes to the privacy policy immediately, and before they are
implemented in the field?
Answer. If confirmed, I do intend to make the updated policy
public. As CBP works to develop policies and programs that achieve
DHS's mission to protect the homeland, CBP will continue to work
vigorously to minimize the impact on an individual's privacy. In
particular, CBP will continue to safeguard a traveler's personal
information. We are currently reviewing CBP Directive 3340-049 to
reflect evolving practices and in compliance with the Trade Enforcement
and Trade Facilitation Act of 2015.
Question. When your officers ask travelers and citizens if they can
search their devices at the border, most travelers don't know they can
refuse. Being asked by an agent to search your intimate possessions is
relatively frightening situation for most people, especially when
they're just trying to catch connecting flights or make important
appointments.
It is your policy that people can refuse, but if they do refuse,
you can take their device, correct?
Answer. CBP may request the traveler's assistance in presenting his
or her effects--including electronic devices--in a condition that
allows inspection of the item and its contents. If a CBP officer is
unable to determine whether an item being brought into the United
States is admissible to this country, as presented for inspection, the
officer may detain the item pending a determination of its
admissibility in accordance with the law. To the extent that CBP
detains an electronic device, it provides a custody receipt to the
traveler, as outlined in CBP Directive 3340-049.
Question. I understand you don't believe you need consent to search
a digital device, but I think it's important that people know their
rights, and that CBP can't demand people assist in unlocking a device
at the border. Will you to commit to making sure that individuals know
their rights, and your authorities, before they're asked to provide
assistance in searching a device?
Answer. CBP profoundly respects the constitutional rights and
privacy of our citizens, and when the fact of a search can be disclosed
to the traveler without hampering national security, law enforcement,
or other operational considerations, we continue to provide
comprehensive information to travelers who have experienced a search of
their electronic device by offering a tear sheet that clearly explains
and details the authority supporting the search of their electronic
device. This tear sheet is publicly available at: https://www.cbp.gov/
sites/default/files/documents/inspection-electronic-devices-
tearsheet.pdf. In short, CBP provides the traveler with details on how
they can request additional information or report concerns about the
search.
Question. Mr. McAleenan, I'm very concerned about the direction our
country is headed given the sharp increase in anti-immigrant rhetoric
I've witnessed over the last year. From my family's experience and from
my experience seeing the sacrifices people make to come to our country,
the issue of immigration is one that is near and dear to my heart.
Today, we continue to see this cycle of families and individuals
fleeing their home countries in hopes they too can find a better, safer
life in a new country. It's an amazing thing about our country--that no
matter the many challenges we face, the United States is still the
place where immigrants yearn to be.
This is why it is so offensive to me to hear stories about
immigration agents stalking locations that are part of daily life in
this country, in order to find and harass suspected immigrants. A few
months ago, I introduced a bill to block immigration agents from
stalking sensitive locations like schools, hospitals, and religious
institutions without prior approval. The Protecting Sensitive Locations
Act ensures that immigrants have access to education, criminal justice,
and social services without fear of deportation. The Department of
Homeland Security's existing policy on sensitive locations would be
codified and expanded to ensure that people are not afraid to go to the
doctor, to send their children to school or attend a place of worship.
What is your approach to enforcement in sensitive locations?
Answer. CBP's sensitive locations policy remains in place and I
have no plans to change it at this time. I fully support our officers
and agents efforts to enforce the laws of the United States through
their dedicated work in the field. Our policy has guidance for
operations at or near certain locations to ensure that the interruption
of daily lives of most Americans is reduced to the greatest extent
possible.
Question. Do you believe that hospitals, schools, courthouses,
places of worship, and organizations assisting crime victims and
providing services to children, pregnant women, and those with
disabilities should be off limits to enforcement actions, unless
exigent circumstances require it?
Answer. CBP's sensitive locations policy remains in place and I
have no plans to change it at this time. I fully support our officers
and agents' efforts to enforce the laws of the United States through
their dedicated work in the field. Our policy has guidance for
operations at or near certain locations to ensure that the interruption
of daily lives of most Americans is reduced to the greatest extent
possible.
CBPOs and Agents enforce all applicable U.S. laws, including
against illegal immigration, narcotics smuggling and illegal
importation. Inevitably, enforcement actions and investigative
activities may, at times, lead to an apprehension at or near community
locations or establishments which have been deemed as sensitive
locations. CBP policy does not preclude its Officers and Agents from
conducting enforcement actions at or near these locations, but directs
that careful consideration be undertaken, including consultation with
supervisors where appropriate. In all cases, Agents and Officers are
expected to exercise sound judgment and common sense while taking
appropriate action, and exigent circumstances requiring an Agent or
Officer to enter a sensitive location must be reported immediately to
ensure visibility and oversight.
Question. How do you plan to ensure that CBP officers respect
immigrant rights in sensitive locations?
Answer. CBP's sensitive locations policy remains in place and I
have no plans to change it at this time. CBPOs and BPAs do not actively
patrol or station themselves outside of locations deemed sensitive
under CBP policy. As noted above, however, if information is received
regarding a violation of Federal law at or near those locations, CBP
policy does not preclude its Officers and Border Patrol Agents from
conducting enforcement actions at or near these locations, but directs
that careful consideration be undertaken, including consultation with
supervisors where appropriate. In all cases, Agents and Officers are
expected to exercise sound judgment and common sense while taking
appropriate action, and exigent circumstances requiring an agent or
officer to enter a sensitive location must be reported immediately to
ensure visibility and oversight.
Question. The Republican budget includes massive cuts to domestic
spending programs that are essential to millions of Americans--programs
like Meals on Wheels, LIHEAP, and Medicaid. However, the budget also
makes room for increased spending for misguided border and immigration
enforcement.
Given CBP's recent issues with corruption, including more than 140
agents arrested or convicted on corruption charges, how will you ensure
that this funding is only used to hire well-qualified candidates?
Answer. CBP has a workforce of dedicated men and women who are
among the finest civil servants in the world, and who carry out their
duties with the utmost professionalism and efficiency. Recruiting,
hiring, and sustaining a world class law enforcement workforce is CBP's
top mission support priority, and would remain mine, if confirmed. I
would ensure appropriate funding is only used to hire a well-qualified
workforce by continually reviewing and enhancing our hiring process.
CBP law enforcement applicants undergo a thorough pre-employment
examination process including a cognitive exam, a structured panel
interview, an automated vetting procedure, a polygraph exam, and a Tier
5 level background investigation. I believe our process is one of the
most rigorous in the government.
I do not favor lowering our standards for frontline personnel, and
remain committed to key background and security steps such as a
federally certified polygraph examination. Any waiver authority granted
by Congress where applicants demonstrate a track record of service and
trustworthiness would be utilized in a judicious manner.
Question. Since the President took office, the administration has
largely stopped prioritizing the deportation of undocumented immigrants
with criminal records and routinely fails to take into consideration
circumstances like children in the United States and community ties. Do
you believe that the best use of CBP resources is to arrest and deport
every undocumented immigrant they come across, no matter the
circumstances?
Answer. U.S. Border Patrol (USBP) operations between ports of entry
are focused on interdicting illegal border crossings at or near the
immediate border and on routes of egress into the United States. While
USBP may arrest all individuals found to have entered the United States
illegally during border security operations, the vast majority of
apprehensions involve recent border entrants. Each person who is
apprehended is subject to the Consequence Delivery System (CDS), which
ensures the most appropriate actions are applied to each case. CDS
standardizes USBP's decision-making process specific to each
apprehended subject by consistently and systematically applying
consequences and evaluating each consequence's effectiveness and
efficiency. CDS measures the consequences applied to persons illegally
entering the United States against defined alien classifications. CDS
includes the analysis of a variety of possible administrative,
criminal, and programmatic consequences and incorporates a number of
pre-existing initiatives and programs. CBP referrals for further
immigration enforcement action are subject to prioritization and
adjudication by both U.S. Immigration and Customs Enforcement and the
Executive Office of Immigration Review.
Question. In recent years, the CBP has taken a number of
questionable actions that infringe on the rights of U.S. citizens,
permanent residents, and immigrants like roving border patrols, racial
profiling, and unlawful detentions. To reign in the administration's
unfair immigration policy, I co-sponsored legislation with my colleague
Senator Menendez to counter them. The PROFILED Act guarantees basic due
process rights and protections for any individual impacted by
immigration enforcement and detention operations. Targeting American
citizens, immigrants and refugees because of the way they look goes
against the very founding ideas of who we are as Americans. It's only
right that when people are unfairly targeted by law enforcement in our
country, they have the full protection of our laws.
The best practices for Federal law enforcement agencies clearly
identify that training, data collection, and accountability are the
only way to make a profiling policy work.
Will you implement implicit-bias training for CBP employees to
address the obvious racial profiling that harasses members of our
border communities?
Answer. CBP policy prohibits the consideration of race or ethnicity
in law enforcement, investigation, and screening activities, in all but
the most exceptional circumstances. CBP's Standards of Conduct further
highlights CBP's prohibition on bias-motivated conduct and explicitly
requires that ``Employees will not act or fail to act on an official
matter in a manner which improperly takes into consideration an
individual's race, color, age, sexual orientation, religion, sex,
national origin, or disability, union membership, or union
activities.'' The use of race and ethnicity information in violation of
this policy may subject CBP employees to discipline under the Standards
of Conduct. CBP will continue to provide training to ensure continued
adherence to our existing policies on this topic.
Question. Will you collect data on individual stops so that CBP can
understand if their practices are even effective?
Answer. CBP documents individual stops in the Intelligent Computer
Assisted Detection (ICAD) system. Our collection practices continue to
evolve to ensure we efficiently and effectively identify and respond to
threats to border security. The amount and type of data collected for
individual stops, including vehicle stops and pedestrian interactions,
is frequently reviewed and amended when necessary, within the bounds of
our authority. Data we track and collect from our significant
encounters includes time, location and outcome, as well as multiple
other details. CBP has considered adding fields to track specific
descriptions of subjects and vehicle occupants. We determined that it
would not be appropriate as it could encourage the reliance of the
perception of ethnicity as a consideration in our stops. Ethnicity is
not a primary consideration in our stops and there are no immediate
plans for additional specific additional data fields. CBP will
reinforce its collection activities for stops to ensure that we are
collecting sufficient data to ensure our practices are effective and
unbiased.
Question. Considering the CBP has authority to stop and conduct
searches within 100 miles of any land or coastal border, I am alarmed
at how far and wide CBP's roughly 20,000 agents' authority to hassle
Americans reaches. Oregon is a coastal State, and I can't imagine
explaining to voters there that border agents could in fact set up a
mobile checkpoint in Portland--80 miles inland--and subject them to the
kind of harassment a checkpoint encounter entails. Roving checkpoints
have severely impacted border residents' quality of life, disrupted
legitimate business, and gained the CBP little more than minor drug
prosecutions against citizens.
Will you continue to support their use as Commissioner?
Answer. USBP checkpoints, both fixed and temporary, are a proven,
effective layer in our multi-layered approach to securing the border
and interdicting unlawful entry. Checkpoints are strategically placed
where potentially illegal cross border traffic is most likely to
converge as it makes egress away from the border into the United
States. Travelers in vehicles are briefly questioned as to their
citizenship to ensure those out of status are prevented from further
entry into the interior of the country in violation of U.S. immigration
laws. As the Supreme Court recognized in United States v. Martinez-
Fuerte, immigration checkpoints are both a constitutional and necessary
law enforcement tool to detect illegal aliens seeking to enter the
United States. 428 U.S. 543 (1976). Accordingly, Border Patrol Agents
may ask individuals about their citizenship and request documents
proving their right to be in the United States.
If confirmed, I would support the continued use of immigration
checkpoints as an important part of a layered border security approach
where they provide interdiction capabilities on routes of egress away
from the border. I would not support their use in operationally
inefficient or ineffective manner.
Question. If so, on what evidence of their effectiveness would that
decision be based?
Answer. The decisions on when and where to operate immigration
checkpoints are based on routes of egress from the border, recent and
historical operational results, and current intelligence. Checkpoints
are strategically placed where potentially illegal cross border traffic
is most likely to converge as it makes egress away from the border into
the United States. USBP immigration checkpoints are effective. Border
Patrol Agents conduct thousands of immigration enforcement actions
annually resulting in the arrest of criminal aliens, smugglers, and
thousands of individuals that have entered the country unlawfully. USBP
also makes significant seizures of illegal drugs at checkpoints each
month. In FY 2017, BPAs apprehended over 6,000 illegal aliens and
seized over 75,000 pounds of illegal narcotics.
Question. In recent years, reports of extremely poor conditions for
individuals held in CBP short-term custody facilities have
proliferated, including from facilities in Oregon. Hundreds of
thousands of individuals are held in CBP short-term custody facilities
each year. These facilities, which are designed to detain individuals
for up to 72 hours but in practice are often used to hold people for up
to 2 weeks or longer, lack comprehensive standards, as well as
effective oversight and transparent data collection on detention
activities.
Reports from the Northwest Detention Center in Tacoma, Washington
have found that conditions for detainees are troubling, to say the
least. Detainees there have reported conditions including poor hygiene
and lack of access to medical care, recreation and nutritious food. DHS
itself has acknowledged ``recurring problems'' and oversight failures.
Multiple Federal cases are pending, one of which credited evidence of
``widespread and deplorable conditions.''
What will you do to ensure that conditions in these facilities are
appropriate and consistent with American law and values?
Answer. CBP operates short-term holding facilities as defined in
the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA). TFTEA
states in part that `` `short-term detention' means detention in a CBP
processing center for 72 hours or less'' (19 U.S.C. 4301). The vast
majority of individuals apprehended or arrested by CBP are removed,
transferred to another agency, or released from these short-term
holding facilities within this 72-hour time frame.
CBP treats all individuals with dignity and respect, and ensures
that all such facilities meet all relevant legal and policy
requirements, including the requirements of the Flores v. Reno
Settlement Agreement, the Prison Rape Elimination Act, and CBP National
Standards on Transport, Escort, Detention, and Search (TEDS).
Additionally, both CBP's Office of Field Operations and U.S. Border
Patrol ensure that all agents and officers appropriately monitor the
conditions in hold rooms, and enter pertinent information into the
appropriate systems of record on a regular basis. Conditions in CBP
holding facilities are reviewed internally, and are subject to both DHS
Civil Rights and Civil Liberties, and Office of Inspector General
oversight.
If confirmed, I will remain committed to the humane care and
treatment of individuals in these short-term holding facilities.
Question. Will CBP commit to increasing transparency regarding its
detention facilities, in terms of public data reporting as well as
release of inspections that monitor conditions?
Answer. CBP has several compliance mechanisms in place, including a
Self-
Inspections Program and inspections by CBP's Management Inspection
Division (MID). DHS's Office of Inspector General has also conducted
spot inspections of CBP facilities. Additionally, CBP prepares an
annual report assessing CBP efforts to prevent, detect, and respond to
sexual abuse in holding facilities. This report addresses CBP's efforts
to assess and improve the effectiveness of its sexual abuse prevention,
detection, and response policies, practices, and training, and is
posted in CBP's public Care in Custody webpage.
Question. Please specify what and when such reporting can be
expected.
Answer. CBP reports assessing CBP efforts to prevent, detect, and
respond to sexual abuse in holding facilities, pursuant to the
Department of Homeland Security (DHS) Standards to Prevent, Detect, and
Respond to Sexual Abuse and Assault in Confinement Facilities (6 CFR
Sec. 115.188), are prepared annually and made readily available to the
public through the CBP Care in Custody webpage. Additionally, CBP will
post final reports of holding facility audits conducted by independent
auditors assessing CBP's implementation of the Standards to the
agency's public website.
Question. Will you increase transparency by permitting non-
governmental/third-party inspections and publishing statistics on
detention operations?
Answer. CBP engages with non-governmental organizations (NGOs)
frequently, including providing briefings on our facilities. I
personally hosted our last NGO roundtable in October. Additionally, CBP
publishes a range of data on our CBP.gov website that provides
information on demographics and locations of apprehensions and adverse
immigration actions.
Question. I appreciate your working with me on staffing at the Port
of Portland. I understand international passenger arrivals at the
Portland Airport increased 48 percent from 2013 through 2016. The Port
of Portland says CBP has done an outstanding job of managing this
dramatic growth with a static staffing level. I expect that it will
continue to be a challenge to safely, securely, and efficiently process
new services as the needs grow.
If confirmed, will you continue to work with me to ensure the
Portland Airport is properly staffed to accommodate the immediate and
future growth in demand for CBP services?
Answer. I appreciate your interest in this topic, and, if
confirmed, I look forward to continuing to work with you to ensure
CBP's ability to facilitate legitimate trade and travel in the future.
Appropriate staffing of our Nation's ports is among the most
significant challenges that we face and is essential to providing a
secure and expeditious gateway for trade and travel so critical to the
U.S. economy.
Question. CBP is on the front line of enforcement of our trade
laws, but I worry that trade issues are getting short shrift from this
administration. The President promises to pour more money than ever
into border security, at a time when border crossings are at lows not
seen since the 1970s. He has ordered the hiring of 5,000 more Border
Patrol agents, in addition to the planning, designing and construction
of a border wall, including millions for prototypes.
In my view, this is a gross misallocation of scarce resources. CBP
has consistently failed to meet minimum staffing requirements set out
in statute for trade functions, and is well below the optimal level for
carrying out trade enforcement. The difficulties you and I have
discussed in staffing the Port of Portland is emblematic of the failure
to meet staffing goals. What we are seeing overall is an increase in
challenges for trade enforcement, and a decrease in CBP's capabilities
to meet it.
What is CBP's staffing target for CBP officers in 2018, and how
does that compare with the latest staffing target from CBP's Workload
Staffing Model?
Answer. CBP's top mission support priority is recruiting, hiring,
and sustaining a world-class law enforcement workforce, and CBP
Officers are a fundamental element of that effort. CBP's estimated FY
2018 Staffing Target for CBPOs is derived from historical congressional
floors and increases to appropriations and fees, as well as alternative
funding. The FY 2018 target of 24,147 is the goal for CBPO hiring
efforts and represents our floor for CBPOs.
Updated CBP Workload Staffing Model results submitted to Congress
earlier this year continue to show a need for additional CBP Officers
to fully meet the standards set by statute, regulation, and CBP
policies, assuming maintenance of current processes, procedures,
technology, and facilities. The most recent results--factoring in the
additional 2,000 CBPOs funded by the FY 2014 DHS Appropriations Act--
show a need for 2,516 additional CBPOs above our FY 2018 target. The
administration submitted the updated WSM earlier this year, and the
President's FY18 budget submission states the intent to submit
proposals for authorizing language that would provide user fee funding
to address the funding gap for CBP Officers as we have in past years.
Question. Have you developed a plan for addressing staffing
shortfalls with respect to CBP officers?
Answer. Recruiting, hiring, and sustaining our law enforcement
workforce is our top mission support priority. CBP has developed an
integrated plan, led by our Office of Enterprise Services and supported
by the Office of Field Operations. Over the past 3 years, we have
revamped our hiring efforts with over 40 process improvements that have
dramatically decreased the time to hire.
Our primary focus for FY18 is on enhancing our recruiting efforts
to increase the number and quality of applicants entering our hiring
process, to build on the positive trends in applications and success
rate seen over the last 6 months. We have established a National
Recruiting Command, invested in digital advertising, and identified
uniformed personnel to serve full-time to enhance our outreach.
To support the recruitment of CBP Officers specifically, OFO has
established a Recruitment Crisis Action Team (RCAT), and created an OFO
National Recruitment Strategy, which is focused on targeting the right
applicants for the CBPO position. OFO has begun to focus recruitment
efforts for the many vacancies on the Southwest border area.
OFO is in the process of developing Destination Guides, Port
Guides, and ``Day in the Life of a CBPO'' videos, all of which will be
used at recruitment events and be available on the web in an electronic
version. Going forward, OFO will be training all of our recruiters on
the OFO National Recruitment Strategy, on the usage of the various
guides, and have all recruiters target specific areas, as designated by
OFO Headquarters.
Question. Given the President's goal with respect to hiring Border
Patrol agents, how will you ensure that hiring of CBP officers is not
impacted?
Answer. CBP continues to strengthen all aspects of its recruitment
and hiring strategy to ensure the entire frontline--both along the
border and at every POE--is staffed in accordance with the expanding
complexity and demands of its mission.
In those instances where CBP is concerned about a specific POE
being understaffed relative to others, it will rebalance by directing
resources from other Field Offices to fill the gap, as is evidenced by
our recent temporary assignments to the Tucson and San Diego Field
Offices.
CBP is continuing work to address 1,132 CBPO positions that are
vacant as of September 30, 2017. CBP has worked aggressively over the
past several years to implement a multifaceted recruitment strategy
that improves frontline hiring processes and enhances its ability to
meet hiring goals. CBP continues to strengthen all aspects of hiring,
which includes initiatives designed to attract more qualified
applicants, expedite the pre-employment timeline, refine the hiring
process to address all potential bottlenecks, and reduce the attrition
rate of the existing workforce. Staffing the frontline with well-
qualified individuals of the highest integrity and capability remains
the top mission support priority for CBP.
Question. One of the important things that the 2015 Customs bill
did--thanks in large part to the hard work of Senator Brown--was to
close a loophole that allowed goods made with forced labor into the
United States. That was supposed to make sure that there are no
circumstances under which such goods can enter the commerce of the
United States. It was the right thing to do both to protect human
rights and to protect U.S. workers from unfair competition. However,
enforcement of this prohibition seems to have stalled under this
administration.
I understand that CBP is considering regulations on this topic. If
confirmed, will you commit to working with my staff to ensure that
regulations are aimed at vigorous enforcement of the ban on goods made
with forced labor from entering the United States?
Answer. Yes. I am committed to rigorous enforcement of forced labor
prohibitions. CBP is undertaking a regulatory review to ensure that we
are using all CBP authorities, and other agency resources effectively
in forced labor enforcement efforts.
Question. What other steps are you taking to step up enforcement?
Answer. CBP has taken a number of steps to enhance enforcement of
forced labor in supply chains since TFTEA was enacted. CBP engaged
specific industry sectors through our Centers of Excellence and
Expertise and our regulatory auditors to conduct bi-directional
education and assess best practices of risk mitigation and compliance
related to forced labor in the global supply chain. We updated our
internal enforcement policies to require mandatory referral to U.S.
Immigration and Customs Enforcement, Homeland Security Investigations
(HSI) for all allegations of forced labor. As with other criminal fraud
referrals, CBP works closely with HSI and the Department of Justice
(DOJ) to support these investigations. To date CBP has referred six
forced labor allegations to HSI.
CBP is committed to working with Congress, the private sector,
Civil Society Organizations, and interagency stakeholders to craft the
most effective approach to modernize the regulations to protect human
rights and to protect U.S. workers from unfair competition. CBP has
undertaken an active communications effort to ensure importers are
aware of the risks associated with forced labor, what their compliance
responsibilities are and how they can validate that their supply chains
are free of forced labor. CBP published technical corrections to the
forced labor regulations to remove the consumptive demand loophole and
is now outlining substantive changes to allow for an agile enforcement
response.
My staff is actively engaged in the DHS-led Forced Labor
Interagency Working Group, which includes ICE, Department of State,
DOJ, U.S. Agency for International Development, Department of Treasury,
General Services Administration and Department of Labor. CBP works
closely with these agencies, when appropriate, to evaluate forced labor
cases and allegations.
We have also leveraged intelligence units within our Office of
Trade and OFO's National Targeting Center, Counter Networks Division.
In the last 2 years, CBP has detained $6,307,926 in goods suspected of
violating 19 U.S.C. Sec. 1307. Most recently, CBP detained 11 shipments
of seafood suspected of being processed by companies in China using the
labor of North Korean nationals. The shipments are valued at $564,775
and are detained at four ports of entry. Further, OFO issued an Action
memorandum to the Centers directing them to issue requests for
information to approximately 235 importers. This effort focuses on
manufacturers and importers with links to the areas within China
suspected of using the labor of North Korean nationals to manufacture
goods destined for the United States.
CBP also continues to meet with Civil Society Organizations to
ensure we are aware of trends, insights, and concerns that these groups
possess into forced labor issues. If confirmed, I will continue to
implement aggressive and broad-based enforcement efforts to address the
challenge of goods manufactured with forced labor entering our supply
chain.
Question. The Trade Facilitation and Trade Enforcement Act of 2015
required CBP to establish a risk assessment program to adjust the
bonding amount based on importer risk, to ensure that the customs
revenue is collected from trade cheats that evade our laws, underpay
duties, and then cut and run. I am not aware that any such program has
been established to date, even though we are almost a year past the
deadlines. At the same time, President Trump signed an executive order
that mandated a narrower plan to provide security for the payment of
anti-dumping and countervailing duties. I understand that plan is being
finalized for delivery to the White House.
Answer. CBP is actively working on implemented risk-based bonding
as directed in TFTEA. The CBP Office of Trade (OT) has led an internal
working group with the Centers of Excellence and Expertise and the
Office of Finance to identify key risk factors to incorporate into the
Risk Assessment Guidelines called for in TFTEA section 115--Importer
Risk Assessment Program. At the same time, the OT is developing
statistical models for risk based bonding to determine which risk
factors have a strong statistical correlation with future AD/CVD non-
payment. CBP is currently working with the COAC Trade Enforcement and
Revenue Committee's Bond Working Group on ways to implement enhanced
bonding procedures as work on the statistical models progresses. OT
plans to pilot this process in FY18. Once fully deployed, CBP will use
the statistical results to adjust bond amounts to protect government
revenue and apply AD/CVD orders effectively.
The plan called for in Executive Order 13785, entitled
``Establishing Enhanced Collection and Enforcement of Antidumping and
Countervailing Duties and Violations of Trade and Customs Laws,'' has
been finalized and delivered to the White House.
Question. Presumably, you have submitted the plan mandated by the
executive order to the President, but what are your intentions for
complying with the mandate in the Trade Facilitation and Trade
Enforcement Act?
Answer. CBP is actively working to comply fully with the mandate in
TFTEA. CBP is pursuing a rigorous analysis process to ensure that risk
factors used in assessing importers are defensible and meaningful
predictors of importer risk. The Office of Trade (OT) has led an
internal working group with the Centers of Excellence and Expertise and
the Office of Finance to identify key risk factors to incorporate into
the Risk Assessment Guidelines called for in TFTEA section 115--
Importer Risk Assessment Program. At the same time, the OT is
developing statistical models to determine which risk factors have a
strong statistical correlation with future AD/CVD non-payment. The CBP
Office of Trade plans to pilot this process in FY 2018. Once fully
deployed, CBP will use the statistical results to adjust bond amounts
to protect government revenue and apply AD/CVD orders effectively.
Question. In the Trade Facilitation and Trade Enforcement Act of
2015, we raised the de minimis threshold for imports so that when small
businesses bring in low-value shipments they don't need to go through
the red tape or pay duties to bring inputs or product returns into the
countries. I was a big proponent of this because it is a huge boon for
small businesses that don't have the resources to navigate all the
requirements for their smaller and less frequent imports. This is
critical to the digital economy, where very small businesses now have a
global reach and our trade policy should support that fact.
If confirmed, are you committed to ensuring that de minimis
shipments remain as streamlined as possible--and that new requirements
aren't imposed on them?
Answer. Facilitation of cargo and support of U.S. competiveness is
a key part of CBP's trade mission. Streamlining and promoting
frictionless trade are CBP's goals especially in light of changing
technologies and business processes. CBP has been working closely with
the trade community and participating government agencies to facilitate
low value cargo while ensuring that shipments facilitated by e-Commerce
are complying with CBP and other agency regulatory requirements.
Question. If confirmed, will you commit to ensuring that CBP
aggressively pursues the adoption of similar de minimis threshold by
our trading partners, through the World Customs Organization, trade
agreements negotiations, and other forums?
Answer. Harmonizing de minimis approaches with other trade partners
would be beneficial and contribute to the reduction in supply chain
barriers globally. CBP is working with stakeholders in the private
sector and the WCO to share best practices and lessons learned as we
implement the TFTEA de minimis level increase. In addition, we are
providing subject matter expertise to the U.S. Trade Representative, as
it pursues the negotiating objectives as expressed in TFTEA around de
minimis.
Question. Mr. McAleenan, as you know, the customs reauthorization
bill signed into law last year included the Enforce Act--the product of
years of work by this committee to address brazen evasion of U.S. trade
laws before businesses are sunk and jobs are lost. CBP started
implementing the Enforce Act over a year ago.
Can you give me an update on your enforcement actions under the
Enforce Act provisions so far?
Answer. To date, CBP has initiated over 14 EAPA investigations and
has reached an affirmative determination at the interim measures stage
for each of them. These investigations cover various products,
including wire garment hangers, wooden bedroom furniture, diamond
sawblades, and oil country tubular goods (steel tubing). The interim
measures taken protect the revenue, such as providing cash deposits on
subsequent entries, suspending and extending liquidation of entries,
rejecting entries summaries that are within the reject period, as well
as evaluating the continuous bond and requiring single transaction
bonds, as appropriate. In these investigations, the Trade Remedy Law
Enforcement Directorate has coordinated more than 10 foreign onsite
verifications, including two locations in Thailand and eight locations
in Malaysia, among others, as well as domestic onsite verifications and
multiple cargo exams. The onsite verifications are crucial to gather
evidence of exporter production capability and capacity, to assess the
information against that provided in the allegations and CBP's own
research of the exporters and importers.
The first EAPA allegation was filed only a few weeks after the
regulations went into effect. CBP quickly formed a small cohesive
investigative unit and completed its work well ahead of the statutory
deadline for interim measures. In that first investigation, CBP
initiated a unique investigative approach to obtain key information
when the parties being investigated declined to participate. CBP
reached its determination on interim measures a month ahead of the
statutory deadline and issued its final determination to the parties to
the investigation on August 14, 2017. The notice explained that there
was substantial evidence on the record that merchandise was entered
into the U.S. customs territory through evasion via transshipment of
wire hangers from China through Thailand. As a result of this
enforcement effort, the alleger filed eight more allegations and to
date, these investigations alone have stopped the evasion of $33
million in anti-dumping duties annually.
Question. In my view, the success of implementation will hinge on
the input of stakeholders. If confirmed, do you commit to working on
increasing transparency and opportunities for stakeholder input in
Enforce proceedings?
Answer. Yes. To further the transparency of the EAPA
investigations, we have provided a website to post both our decisions
as well as background information on the investigations. We have
already held a workshop with industry in April 2017 and anticipate
another in early 2018 in order to engage stakeholders. Further in
addition to our other public outreach efforts, EAPA investigations have
been on the agenda at our East and West Coast Symposiums for the last 2
years and this provides another avenue for engagement with stakeholders
on the program. I intend to listen carefully to stakeholder input and
work closely with Congress on EAPA implementation as we continue
forward.
Question. I requested a report from the Government Accountability
Office that was released in July regarding U.S. Foreign Trade Zones
(FTZs) and CBP's oversight of compliance with U.S. trade laws in the
FTZ program. GAO found that CBP had not assessed compliance risks
across the FTZ program, and therefore could not analyze and respond to
the risk. That finding is troubling given that the FTZ program
accounted for about 11 percent, or $245 billion, of imports in 2015.
What is CBP doing to address the shortfalls identified by GAO, and
what are the plans for the future to ensure compliance across the FTZ
program?
Answer. CBP concurred with the findings of this report from GAO and
identified the gaps with GAO as part of the program review. We were
pleased that detailed reviews did not identify revenue losses or other
serious issues with the program, but rather that CBP was still
transitioning from a paper based process, monitored at the local level,
to a much more automated process under ACE that would allow for
modernization and automation of CBP's control processes as well. We
have determined that we will take a multi-step approach to this review
and update of this important oversight:
1. As of October 1, 2017, CBP is collecting in a centralized
database, the results of all compliance reviews and risk assessments
performed nationwide by ports. As per the GAO recommendation, we will
collect the first year worth of data for the purposes of a national
review of the risk assessment process applied to FTZ oversight.
2. Starting October 1, 2018, CBP will begin the comprehensive
national FTZ risk assessment review based on the data collected for the
Fiscal Year. That process is expected to take 90 days. At the end of
that period, CBP will issue updated risk assessment procedures based on
any gaps identified in the risk assessment review and implement same.
Concurrent to the risk assessment review and collection, CBP is
undergoing a comprehensive review of current procedures with the goal
of using automation more effectively for oversight. Current paper
processes are being reviewed and assessed to see if automated
alternatives can be utilized (paper files vs. ACE reports for example)
and determining the time frames for these implementations based on
availability of technology. CBP has further targeted an update in the
internal Compliance Review Handbook for March 2019.
Question. President Trump has repeatedly said he will build a wall
along the 2,000-mile southern border. Not only would this be extremely
costly, but it would also require the confiscation of private lands by
the Federal Government and would likely result in numerous legal
challenges and environmental damage.
A September 2017 report by the DHS Office of Immigration Statistics
found that illegal entries were at their lowest level since 2000 and
likely since the early 1970s. Further, numerous reports by GAO and
other government bodies have criticized the lack of systematic
assessment of border barrier effectiveness. In light of the significant
drop in unauthorized entries, which began long before this
administration, and the uncertainty of the effectiveness of border
walls, is it optimal use of taxpayer resources to spend billions of
dollars on a border wall?
Answer. The border environment is dynamic and the threat situation
is driven by adversary actions and is constantly in flux. CBP must be
afforded flexibilities to remain agile to respond appropriately based
on current mission needs and resourced to address capability gaps.
Securing the border requires an integrated approach including
infrastructure such as border wall and road access, surveillance
technology, response capability, and personnel. The U.S. Border Patrol
maintains a Capabilities Gap Analysis Process that begins with input
from the sector level, and has identified the necessary capabilities to
secure the border. The four key Master Capabilities are: domain
awareness, impedance and denial, access and mobility, and mission
readiness.
A significant portion of the success we have realized over the last
decade and a half can be attributed largely to increased deployment of
impedance and denial infrastructure. The border wall provides an
important and enduring capability to impede or deny illegal crossings
in those areas where it is applied, as demonstrated in San Diego,
Tucson, El Paso, and Yuma Sectors, but it is not effective alone, and
is not an appropriate solution for every area of the border. It is most
effective where there are populated areas near the line on the U.S.
side of the border, where illegal crossers can vanish within
residential and commercial areas.
Where it is applied, the border wall must be supported by the
ability to detect activity through advanced surveillance technology,
and the ability to respond effectively with mobile, trained personnel.
In this way, the most effective means of achieving operational control
of the border does not rely on any single capability, piece of
technology, or infrastructure. It is a mixture of all of those things,
executed by a properly trained and properly equipped mission ready
workforce.
USBP will continue to utilize the Capabilities Gap Analysis Process
to identify mission needs and offer courses of action to fill gaps--
impedance, technology, people--or a balance of all three depending on
available resources. We will build a wall where it is prudent and
effective and the design will change based on the environment and
operational needs. We will deploy technology to produce domain
awareness of illegal criminal activity exposing our citizens to risk.
We will increase the hiring and deployment of new and relocate existing
agents to both areas of increased threat and increased activity. A
comprehensive view of all border threats, risks and activity is
essential.
The significant improvements in border security over the past 10-15
years are promising, and reflect the benefits of sustained investment
in border security capabilities based on operational requirements,
combined with the effective operational strategies applied by the U.S.
Border Patrol, along with improvements in enforcement policies and
consequence delivery. Despite these improvements, we continue to see
over 25,000 apprehensions of illegal crossings per month between ports
of entry, as well as increasing amounts of hard narcotics seizures.
These threats--over 830 people a day--include previously deported
criminals, hardened smugglers employed by ruthless cartels, and other
potential security risks. It remains CBP's responsibility to
effectively interdict and deter these crossings, in concert with
immigration enforcement partners and supported by appropriations and
authorities from Congress as we strive toward operational control, the
effective deterrence or interdiction of all illegal crossings. The
impedance and denial capability provided by border wall remains an
important component of that effort.
Question. This is now the third administration that you have served
under within CBP and its predecessor agency the U.S. Customs Service.
Have you ever recommended the building of a border wall?
Answer. During the Bush administration, when I served as Director
of Antiterrorism and Senior Counselor to then-Commissioner Robert C.
Bonner, I was involved with, and supported, the development of U.S.
Border Patrol resource requirements to enhance security on the
Southwest border. Those requirements, developed in support of the
budget processes and security initiatives during the 2004-2006 time
frame, included investments in border wall and security infrastructure
in key high-traffic sectors such as Tucson, AZ, and were largely
supported by bipartisan majorities and the Secure Fence Act. Then, as
now, I relied on the recommendations of the operators in the field who
identified key capabilities needed to enhance border security.
Additionally, during my tenure as Deputy Commissioner, CBP
requested funding for, and invested approximately $70 million to
replace approximately 10 miles of legacy pedestrian barrier in Naco and
San Luis, AZ as well as Sunland Park, NM.
Question. A fundamental task of CBP is to collect revenue. CBP's
collection of tariffs on imports is the second largest source of
revenue for the Federal Government. In addition, CBP's revenue
collection protects U.S. businesses and workers. Much of the
uncollected revenue comes from foreign goods subject to anti-dumping
and countervailing duty orders put in place to protect U.S.
manufacturers from unfair trade practices. Congress said in the Trade
Enforcement bill that revenue collection is a priority trade issue.
If confirmed, what will you do to make revenue collection a
priority, particularly when that revenue is also collected to protect
American workers and business?
Answer. Duty collection is a critical component of revenue and AD/
CVD enforcement, which are both priorities for CBP. CBP targets revenue
and AD/CVD risks by relying on data informed analysis for underpayment
of duties due to various types of evasion schemes to include
misclassification, undervaluation, failing to file AD/CVD entries, and
illegal transshipment. CBP is exploring creative ways to adjust bonding
requirements to mitigate the risk of non-payment that certain importers
present, collaborating with our Surety trade chain partners. CBP has
identified options for risk-based bonding as part of its implementation
of section 115 of the Trade Facilitation and Trade Enforcement Act
(TFTEA) (Pub. L. 114-125). CBP's intent is to use this new TFTEA
authority to statistically predict the risk of future non-payment of
duties, taxes, and fees and adjust bond amounts to protect government
revenue and apply AD/CVD orders effectively. In addition, as required
by Executive Order 13785, DHS has submitted a report to the White House
outlining a plan for risk-based bonding to provide greater security to
secure payments of final AD/CVD and other unpaid bills. CBP has
automated the securing of bonds within ACE (e-Bonds) that centralizes
CBP's management of bonds and ensures bonds are properly executed thus
facilitating the collection of monies owed that are secured by bonds.
When CBP identifies revenue risks from AD/CVD imports, CBP is
proactively requesting additional security in the form of single
transaction bonds from importers. Despite repeated court challenges,
CBP continues these efforts to secure AD/CVD revenue. CBP has also been
successful in recent years in taking sureties to court to collect
delinquent AD/CVD when sureties do not fulfill their legal obligation
to pay amounts owed. CBP has had great success in aggressively pursuing
sureties in these cases to establish a clear monetary incentive for
sureties to make prompt payment upon demand. CBP will continue to
actively pursue collection of uncollected AD/CVD and regular duties
against delinquent importers and sureties.
Question. Illegal logging doesn't just hurt the environment, it
hurts sawmill workers in Oregon and around the country who have to
compete with an influx of cheap stolen wood. I have fought for years to
stop trade in illegally harvested timber. As you know, the enforcement
legislation Congress passed last year requires Customs agents to be
trained in detection and seizure of illegally traded fish, wildlife,
and plants.
Can you provide an update on your work with experts such as the
World Wildlife Fund and the Environmental Investigation Agency to
develop and implement an effective training module on illegal logging
and begin trainings, so that America's port officers are fully equipped
to deal with illegal trade in wood products?
Answer. An Illegal Logging Issues Seminar was held in New Orleans
in September 2017, for key CBP personnel, with the assistance of the
World Wildlife Fund (WWF), DOJ, CBP Laboratory and Scientific Services,
and the Industrial and Manufacturing Materials Center of Excellence and
Expertise. The seminar presented a comprehensive overview of illegal
logging issues, global priority threats, and specific species for
priority. Based on participant feedback received at this seminar, CBP
will refine this training module further and present it more broadly
via webinar to CBP field personnel nationwide in FY 2018.
______
Questions Submitted by Hon. Debbie Stabenow
Question. I continue to be concerned about countries that break the
rules and evade U.S. trade laws. Last Congress, the Enforce and Protect
Act was signed into law as part of an effort to crack down on duty
evasion. Duty evasion has affected businesses and workers in numerous
industries, including in Michigan. It is critical that we work together
to ensure our trade laws are being enforced.
How will you ensure that we are effectively countering duty
evasion?
Answer. To date, CBP has initiated over 14 Enforce and Protect Act
(EAPA) investigations, and has reached an affirmative determination at
the interim measures stage for each of them. These investigations cover
various products, including wire garment hangers, wooden bedroom
furniture, diamond sawblades, and oil country tubular goods (steel
tubing). The interim measures taken protect the revenue, such as
providing cash deposits on subsequent entries, suspending and extending
liquidation of entries, rejecting entries summaries that are within the
reject period, as well as evaluating the continuous bond and requiring
single transaction bonds, as appropriate. In these investigations, the
Trade Remedy Law Enforcement Directorate has coordinated more than 10
foreign onsite verifications, including two locations in Thailand and
eight locations in Malaysia, among others, as well as domestic onsite
verifications and multiple cargo exams. The onsite verifications are
crucial to gather evidence of exporter production capability and
capacity, to assess the information against that provided in the
allegations and CBP's own research of the exporters and importers.
The first EAPA allegation was filed only a few weeks after the
regulations went into effect. CBP quickly formed a cohesive
investigative unit and completed its work well ahead of the statutory
deadline for interim measures. In that first investigation, CBP
initiated a unique investigative approach to obtain key information
when the parties being investigated declined to participate. CBP
reached its determination on interim measures a month ahead of the
statutory deadline and issued its final determination to the parties to
the investigation on August 14, 2017. The notice explained that there
was substantial evidence on the record that merchandise was entered
into the U.S. customs territory through evasion via transshipment of
wire hangers from China through Thailand. As a result of this
enforcement effort, the alleger filed eight more allegations and to
date, these investigations alone have stopped the evasion of $33
million AD duties annually.
Question. Will you commit to fully implementing the law so that
affected industries and workers are able to participate in the process
for duty evasion cases?
Answer. Yes, CBP is fully committed to implementing EAPA.
Question. The U.S. sugar industry supports 142,000 jobs across the
country, including thousands of jobs in Michigan. Unfortunately, our
producers have been hurt by very low prices and volatility caused by
Mexico dumping large volumes of sugar on the U.S. market. I am hopeful
that this dumping will be stopped by the revised antidumping and
countervailing duty suspension agreements negotiated earlier this year.
However, the success of the agreements will largely depend on Customs
and Border Protection adequately enforcing them.
If confirmed, will you commit to working closely with the
Departments of Agriculture and Commerce to monitor and enforce these
agreements, and make enforcement of these suspension agreements a
priority for CBP?
Answer. Yes; I can commit, if confirmed, to work closely with USDA
to monitor and enforce the revised antidumping and countervailing duty
suspension agreements negotiated with Mexico earlier this year.
Question. I appreciated our earlier discussion about the importance
of CBP working closely with the Department of Agriculture's Animal and
Plant Health Inspection Service (APHIS) to protect farmers from
invasive pests and diseases. Agriculture is Michigan's second-largest
industry, and our farmers are increasingly facing these threats. For
example, our cherry growers have been grappling with the damage caused
by spotted-wing drosophila for several years now. Just last week, USDA
confirmed the presence of a new invasive pest, the European cherry
fruit fly, in upstate New York.
If confirmed, will you commit to a strong partnership with APHIS at
the border to protect our farmers?
Answer. Yes, I will continue to commit to a strong partnership with
APHIS. With regards to preventing the introduction of nonnative
destructive pests into the United States, the CBP-APHIS relationship is
symbiotic in nature. Strong collaboration with APHIS is an integral
component to the overall success of the mission. APHIS has the
scientific resources needed to effectively assess risk and promulgate
agriculture safeguarding regulations, whereas CBP has the autonomy and
operational capability needed for immediate implementation and action.
______
Questions Submitted by Hon. Robert Menendez
Question. I am troubled by the allegations that U.S. Customs and
Border Protection officers at Newark Liberty International Airport
subjected new officers to what is being described as ``hazing''
rituals. On September 13th, three CBP officers were arrested and
charged with forcibly assaulting, impeding, intimidating, and
interfering with two men identified as victims who were both CBP
officers at the time the incidents occurred. The three officers who
have been charged were members of the Passenger Enforcement Rover Team,
or PERT, a specialized unit within CBP which is tasked with preventing
passengers from bringing illegal items into the United States. The
alleged assaults took place at Newark Liberty International Airport on
top of what has been described as a ``rape table.''
You committed to me in private that you were well aware of this
situation and found this conduct unacceptable. While charges have been
filed against these three CBP officers, what actions has CBP taken to
ensure that Newark Liberty International Airport is not only safe for
CBP officers, but the people who utilize the airport on a daily basis?
Answer. Following the allegations at Newark Liberty International
Airport, swift and decisive action was taken by the Office of Field
Operations (OFO). Significant changes were made to U.S. Customs and
Border Protection (CBP) management at Newark International Liberty
Airport. Eleven CBP employees, including three supervisors, were
immediately placed on administrative duty and their firearms, badges,
and access to sensitive databases were suspended while DHS's Office of
the Inspector General investigated the allegations. Also, on May 11,
2017, the Passenger Enforcement Rover Team in Newark was disbanded.
Managers and Enforcement Team trainers from John F. Kennedy
International Airport were assigned to Newark to review and assess
operations, provide training, and assist with the reorganization of
Newark's Enforcement Team. Additionally, port chaplaincy, peer support
programs, and on-site Employee Assistance Program training and
counseling have been made available to CBP employees in Newark.
In May 2017, the OFO Executive Director for Operations issued a
memorandum and a muster to the Directors of Field Operations reminding
all employees of the Standards of Conduct for CBP employees, stressing
that U.S. Customs and Border Protection (CBP) employees are responsible
for their actions. CBP employees, to include supervisors and managers,
were reminded not to engage in or promote, criminal, infamous,
dishonest, or notoriously distasteful conduct, or any conduct
prejudicial to the government on or off duty. The muster noted that all
employees are required to immediately report inappropriate behavior by
other employees. This muster reiterated that the failure to operate
under a zero tolerance environment may lead to disciplinary actions. In
addition, memoranda and musters were issued reminding all employees of
the requirement to act professionally when processing all persons
entering and exiting the country.
CBP increased Headquarters and local management oversight into
complaints which serves to quickly identify employees who are
potentially at risk of participating in behavior that would be
indicative of egregious misconduct. Please be assured that CBP takes
all allegations of employee misconduct seriously. Every CBP employee is
required to immediately report misconduct to his or her supervisor or
other management official, the Office of Professional Responsibility
(OPR), or the DHS OIG. In addition, CBP's Standards of Conduct
stipulate that nothing in the Standards should be construed or applied
to interfere with an employee's right to communicate with their
congressional representatives and to engage in activity protected by
the Whistleblower Protection Act. Moreover, CBP's policies and
practices support the protection of employees who fulfill their
obligation to report misconduct. To promote awareness, CBP has
distributed materials regarding whistleblower rights and posted
information in prominent locations within CBP offices. Additionally,
CBP requires all employees to complete training at least every 2 years
regarding their rights and remedies under antidiscrimination,
retaliation, and whistleblower protection laws.
CBP's most valuable attributes in protecting the American people
are the integrity and professionalism of its workforce. The alleged
acts of a limited number of individuals at Newark Liberty International
Airport could tarnish the reputation of the nearly 60,000 dedicated CBP
employees who take the utmost pride in performing their duties with
vigilance, integrity, and professionalism, in order to earn and
maintain the public's trust. CBP's focus on employee accountability and
transparency is only as good as its commitment to exemplifying and
standing by those principles.
Question. How are you assuring the public that the officers whose
duty it is to identify dangerous contraband and threats to national
security are not compromised in any way after three of their members
have been charged with a serious crime?
Answer. If allowed to stand without investigation or action, the
allegations could have undermined the reputation of the thousands of
CBP Officers who take the utmost pride in performing their duties with
vigilance, integrity, and professionalism, in order to earn and
maintain the public's trust. In response, I ensured that appropriate
management actions were taken and that CBP's Office of Professional
Responsibility fully supported the Office of Inspector General
investigation.
Question. According to reports, the new officers were initially
reluctant to file a complaint about this hazing ritual, since the
officers committing the acts were well connected within CBP. How can
you prevent similar behavior in the future and will you commit to
putting procedures in place to ensure this type of conduct is
discovered sooner and officers feel comfortable reporting abuses?
Answer. These allegations were ultimately routed through the CBP
Joint Intake Center and CBP's swift and decisive action serves as an
example for those that may be reluctant to come forward that the
process to file these complaints does work. I am committed, if
confirmed, to ensuring that every CBP employee feels that they can
immediately report misconduct to his or her supervisor or other
management official, the Office of Professional Responsibility (OPR) or
the DHS OIG.
In addition, CBP's Standards of Conduct stipulate that nothing in
the Standards should be construed or applied to interfere with an
employee's right to communicate with their congressional
representatives and to engage in activity protected by the
Whistleblower Protection Act. Moreover, CBP's policies and practices
support the protection of employees who fulfill their obligation to
report misconduct. To promote awareness, CBP has distributed materials
regarding whistleblower rights and posted information in prominent
locations within CBP offices. Additionally, CBP requires all employees
to complete training at least every 2 years regarding their rights and
remedies under antidiscrimination, retaliation and whistleblower
protection laws.
Question. Please provide any updated training or operational
changes that are being considered or are currently in place.
Answer. Shortly after the alleged misconduct became known to OFO,
musters geared toward both managers and employees were issued to each
employee reiterating the Standards of Conduct and the Office of Human
Resources Management Table of Offenses for unprofessional and
disruptive behavior. CBP has distributed materials regarding
whistleblower rights and posted information in prominent locations
within CBP offices. OFO also maintains a robust professionalism program
at each Field Office, with over 200 Professionalism Service Managers
(PSMs) nationwide. OFO Headquarters conducts routine conference calls
with all PSMs to discuss topics of concern and best practices on how to
avoid and address unprofessional and disruptive behavior. Finally, CBP
requires all employees to complete training at least every 2 years
regarding their rights and remedies under antidiscrimination,
retaliation and whistleblower protection laws. As part of this
training, employees are advised of the avenues for reporting wrongdoing
and the resources available to assist them with any questions or
concerns about discrimination, retaliation, mismanagement, waste,
fraud, or abuse.
Question. While charges have been filed against three CBP Officers,
there were reports of other CBP Officers who complained of assault or
harassment by their coworkers at the Newark Liberty International
Airport. In particular, one female officer stated that she was tied to
a chair, put into confinement, and had a gun pointed at her. Is the
Inspector General still investigating incidents at the Newark Liberty
International Airport?
Answer. I must defer questions on the status of any ongoing OIG
investigations to the Inspector General. For CBP's part, CBP OPR
Headquarters became aware of the alleged misconduct in Newark on or
about January 23, 2017, when the allegations were reported via email to
CBP's OPR. In accordance with DHS Management Directive 810.1, the
information was forwarded immediately to the DHS Office of Inspector
General (OIG), which opened an investigation. CBP's OPR has actively
supported the DHS OIG investigation.
Question. If so, what is the status of these investigations?
Answer. It would be more appropriate to defer any questions on the
status of any OIG investigations to the Inspector General.
Question. We discussed at our meeting reports that a number of
border officials are making factually incorrect statements to those
fleeing persecution and arriving at our borders. Human Rights First
published a report ``Crossing the Line'' documenting examples of asylum
seekers being turned away from the border without the proper protocol
being followed. A lawsuit was filed against Secretary Kelly at the
Department of Homeland Security and you as Acting Commissioner of the
United States Customs and Border Protection. The lawsuit alleges that
CBP officials have systematically violated U.S. law and binding
international human rights law by refusing to allow asylum seekers who
present themselves at ports of entry along the U.S.-Mexico border and
assert their intention to apply for asylum or a fear of returning to
their home country the ability to seek protection in the United States.
What action has CBP taken to correct these issues and ensure that
officers are complying with the law?
Answer. Over the last 2 years, CBP has referred over tens of
thousands of applicants for admission who expressed fear of return to
U.S. Citizenship and Immigration Services for review by an asylum
officer. CBP carries out its mission of border security while adhering
to U.S. and legal international obligations for the protection of
vulnerable and persecuted persons. The laws of the United States, as
well as international treaties to which we are a party, allow people to
seek asylum on the grounds that they are being persecuted outside of
the United States because of their race, religion, nationality,
membership in a particular social group, or political opinion. CBP
understands the importance of complying with these laws designed to
protect some of the world's most vulnerable populations, and takes its
legal obligations seriously. Accordingly, CBP has designed policies and
procedures based on these legal standards, in order to protect
vulnerable and persecuted persons in accordance with these legal
obligations. All CBP officers must comply with all law and policy,
investigations are initiated whenever specific complaints are received,
and appropriate disciplinary action may be taken against those who do
not follow law and policy.
Question. What steps will you commit to taking to ensure that this
practice ends immediately across the southern border?
Answer. CBP takes any allegation of employee misconduct very
seriously. All complaints against officers, regardless of the mode
through which they are received, are recorded and investigated, and
appropriate action is taken against CBP employees who are found to have
violated agency policy. Additionally, CBP's Office of Professional
Responsibility (OPR) has been actively engaged with Non-Governmental
Organizations (NGOs) to identify and investigate incidents alleging
that persons were prevented or discouraged from making claims of fear
to CBP.
Question. Do you think that border officials are properly trained
in their role of referring asylum seekers and our asylum policies?
Answer. Over the last 2 years, CBP has referred over tens of
thousands of applicants for admission who expressed fear of return to
U.S. Citizenship and Immigration Services for review by an asylum
officer. In the vast majority of cases, CBP carries out its mission of
border security while adhering assiduously to U.S. and legal
international obligations for the protection of vulnerable and
persecuted persons. CBP recognizes the importance of thoroughly
training our frontline officers and agents. Both Border Patrol Agents
(BPAs) and Customs and Border Protection Officers (CBPOs) receive
training on the proper processing, treatment, and referral of aliens
who express a fear of return. This training begins at the Academies,
and is reinforced through Post Academy training and the periodic
issuance of memoranda and musters.
Question. What steps have you taken or will you take to ensure that
both Border Patrol agents and Office of Field Operations officers are
trained on referrals of asylum seekers?
Answer. Both Border Patrol Agents (BPAs) and Customs and Border
Protection Officers (CBPOs) receive training on the proper processing,
treatment, and referral of aliens who express a fear of return. This
training begins at the Academies, and is reinforced through Post
Academy training and the periodic issuance of memoranda and musters.
Question. Will you issue written guidance to the field to make
clear U.S. legal obligations are being fulfilled and border enforcement
policies and practices do not dissuade or prevent genuine asylum-
seekers from legally seeking protection in the United States?
Answer. CBP issues periodic guidance to the field reminding CBP
Officers and Agents of their legal obligations towards those who
express a fear of return, and has done so recently. If confirmed, I
will ensure that continued guidance is communicated.
Question. In 2015, the Office on Inspector General expressed
concern that DHS was violating international law by referring
individuals who expressed fear of persecution for criminal prosecution
for illegal entry and/or re-entry before DHS determined whether the
individuals might have a valid claim for persecution under U.S. law.
Additionally, a recent article reported that a young woman who was
tortured and raped after being turned away from the United States was
charged with criminal re-entry when she attempted to cross the border a
third time seeking asylum.\4\
---------------------------------------------------------------------------
\4\ Stanton, John, ``All it Takes is Torture,'' Buzzfeed News,
October 10, 2017, https://www.buzzfeed.com/johnstanton/a-young-woman-
was-tortured-and-raped-after-being-turned?utm
_term=.euNYok8X9Z#.kiagKodxm7.
What action has CBP taken to correct these issues and ensure that
---------------------------------------------------------------------------
officers are complying with the law?
Answer. It is CBP's policy to treat all individuals in a
professional manner and with dignity and respect, consistent with U.S.
laws and international obligations. According to U.S. law and CBP
policy, if an officer or agent encounters an individual who is not
lawfully present or who is seeking admission, at or between ports of
entry, the person is amenable to expedited removal, pursuant to section
235(b)(1) of the Immigration and Nationality Act. If an individual
expresses a fear of being returned to his or her home country, CBP
officers and agents record verbal and non-verbal indications of fear
and refer the person for an interview with a U.S. Citizenship and
Immigration Services (USCIS) Asylum Officer. CBP officers and agents do
not make any determination on the validity of such claims.
In any instance in which an applicant for admission may be subject
to a criminal charge, CBP consults with local U.S. Attorney's Office
(USAO). The USAO, given specific facts/circumstances, will make a
determination as to whether to take a case for criminal prosecution.
Criminal prosecution proceeds separately from any administrative
processing, including expedited removal/credible fear, by CBP.
Question. What steps have you taken or will you take to ensure that
Border Patrol agents and Office of Field Operations officers are
trained on this legal obligation and how referral of asylum-seekers for
prosecution violates U.S. law?
Answer. Both Border Patrol Agents (BPAs) and Customs and Border
Protection Officers (CBPOs) receive training on the proper processing,
treatment, and referral of aliens who express a fear of return. This
training begins at the Academies, and is reinforced through Post
Academy training and the periodic issuance of memoranda and musters.
Question. What written or oral guidance has been given to CBP
employees regarding enforcement of priorities and the exercise of
prosecutorial discretion apart from the January 25th executive order on
interior enforcement and Secretary Kelly's February 20th memo to you
and the other DHS agency heads?
Answer. Following Executive Orders 13767 and 13768 and the
Secretary's Implementation Directions of February 20, 2017 the Chief of
the U.S. Border Patrol and the Executive Assistant Commissioner of the
Office of Field Operations issued respective guidance that reiterated
the Secretary's rescission of the November 20, 2014 memorandum
entitled, ``Exercising Prosecutorial Discretion With Respect to
Individuals Who Came to the United States as Children and With Respect
to Certain Individuals Who Are the Parents of U.S. Citizens or
Permanent Residents.'' Additionally, this guidance reiterated the
administration's enforcement policy that criminal aliens have
demonstrated their disregard for the rule of law and as such are a
priority for removal. CBP policy directs the referral for criminal
prosecution of any alien whom our officers and agents have a reason to
believe has committed a criminal offense and directs the initiation of
removal proceedings against any alien who is subject to such removal
under the Immigration and Nationality Act.
Question. Does CBP refer all apprehended cases to ICE regardless of
whether an individual presents a public safety threat?
Answer. OFO processes all applicants for admission at Ports of
Entry (POEs) under section 235 of the Immigration and Nationality Act
(INA). Depending on the particular enforcement action taken, an
applicant for admission who has been found inadmissible may or may not
be referred to ICE Enforcement and Removal Operations (ERO). Under
section 235(b) of the INA, an inadmissible applicant for admission who
is subject to expedited removal, but who has not expressed a fear of
return, may be removed by CBP officers at a POE, or may be referred to
ICE to effectuate their removal, where additional coordination is
required. Aliens who are permitted to withdraw their application for
admission, pursuant to section 235(a)(4), are also generally not
referred to ICE ERO.
Under section 235(b)(1) of the INA, inadmissible applicants for
admission who are subject to expedited removal, but who express a fear
of return, are referred for a Credible Fear interview and must be
referred to ICE ERO for detention.
U.S. Border Patrol processes all aliens arrested between the ports
of entry according to policies and procedures set forth by law and
agency regulations (Immigration and Nationality Act sections 287, 240,
and 235, Border Patrol Handbook, and M-68). Aliens apprehended between
the ports of entry who are subject to expedited removal and who have
not expressed a fear of return may be removed without a referral to
ICE. Under section 235(b)(1) of the INA, inadmissible applicants for
admission who are subject to expedited removal, but who express a fear
of return, are referred for a Credible Fear interview and are referred
to ICE ERO. Adults, family units, and unaccompanied alien children all
require specific needs for detention and processing which are followed
by all BPAs and their supervisors.
Additionally, CBP officers and agents will take enforcement action
against all aliens encountered in the course of their duties who enter
illegally or who do not have a lawful status to remain in the United
States. Such action includes the arrest or apprehension of aliens whom
CBP has reason to believe have entered or who remain in the United
States in violation of immigration laws. Such action also includes the
referral for criminal prosecution of any alien whom CBP has reason to
believe has committed a criminal offense, and the initiation of removal
proceedings against any alien who is subject to removal under any
provision of the INA. CBP officers and agents coordinate with ICE/ERO
for referrals for detention.
Question. CBP has authority to stop and question individuals within
100 miles of the border. CBP also sets up checkpoints and conducts
roving patrols where many times lawful residents and U.S. citizens are
subjected to racial profiling and harassment. What have you done or how
will you ensure individuals are not subjected to racial profiling or
other impermissible profiling? Please include details in your response
about whether there have been CBP trainings and/or data collection
reforms in response to the Department of Justice's December 2014
Guidance for Federal Law Enforcement.\5\
---------------------------------------------------------------------------
\5\ Fact Sheet: U.S. Department of Justice Racial Profiling
Guidance, December 8, 2014, https://www.dhs.gov/news/2014/12/08/fact-
sheet-us-department-justice-racial-profiling-guidance.
Answer. CBP is committed to the fair, impartial and respectful
treatment of all, and has memorialized its commitment to
nondiscrimination in existing policies, including the February 2014 CBP
Policy on Nondiscrimination in Law Enforcement Activities and All Other
Administered Programs. This policy was developed to implement DHS
Policy on Nondiscrimination in Law Enforcement Activities and All Other
Administered Programs and prohibits the consideration of race or
ethnicity in law enforcement, investigation, and screening activities,
in all but the most exceptional circumstances. To further implement
---------------------------------------------------------------------------
CBP/DHS Policy, CBP took the following actions:
Initiated an antidiscrimination awareness campaign through
payroll notice statements, the IDS, and the CBPnet;
Developed and delivered muster module for enforcement
personnel on anti-profiling in security screen and enforcement
activities; and
Coordinated with the Office of Training and Development
(OTD) to update training material for law enforcement
personnel.
CBP's Standards of Conduct further highlights CBP's prohibition on
bias-motivated conduct and explicitly requires that ``Employees will
not act or fail to act on an official matter in a manner which
improperly takes into consideration an individual's race, color, age,
sexual orientation, religion, sex, national origin, or disability,
union membership, or union activities.''
The use of race and ethnicity information in violation of this
policy may subject CBP employees to discipline under the Standards of
Conduct.
Question. Press reports indicate that Border Patrol agents detained
Rosa Maria Hernandez, a 10-year old child with cerebral palsy after an
emergency surgery. CBP agents reportedly stopped the ambulance at an
interior border checkpoint on October 24, 2017 as it was travelling
from Laredo, TX, to Driscoll Children's Hospital in Corpus Christi.
Following Rosa Maria's surgery, Federal agents took her into custody
and placed her in a San Antonio detention facility.
Is it the policy of CBP to routinely detain ambulances?
Answer. No, it is not the policy of CBP to routinely detain
ambulances. U.S. Border Patrol sectors and stations routinely work with
medical providers and emergency transportation companies to coordinate
an expedited inspection when provided advanced notice. These actions
are conducted with strict adherence to policy and regulations found in,
but not limited to the Border Patrol Handbook and local agreements
guided by national policy.
Many press reports regarding the Rosa Maria Hernandez encounter
have been inaccurate. Rosa Maria was traveling in white sedan with an
adult male driver and adult female passenger. Agents subsequently
determined that Rosa was an ``unaccompanied alien child'' (UAC), since
she (a) had no lawful immigration status, (b) is under the age of 18,
and (c) had no parent or legal guardian in the United States available
``to provide care and physical custody.''
The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA) provides certain protections for
vulnerable minors, including requiring agencies to promptly take steps
to notify the Office of Refugee Resettlement (ORR) of the U.S.
Department of Health and Human Services (HHS), and erring on the side
of involving ORR for the protection of the minor. Indeed, the TVPRA
leaves no discretion for any Federal agency to decline to turn over a
UAC in its custody to ORR, or to otherwise transfer custody of that UAC
to any individual or entity other than ORR. Thus, once CBP determined
that Rosa Maria's parents were not present and would not appear to take
custody of her, and therefore that she was a UAC, CBP was obligated by
law to transfer her into the custody of ORR.
Question. Does CBP consider an ambulance a ``sensitive location''
as outlined in the 2011 memorandum entitled ``Enforcement Actions at or
Focused on Sensitive Locations''?
Answer. During any law enforcement operation, preservation of life
and the safety of the public are the first considerations. Although an
ambulance is not considered a sensitive location per our current
policy, and USBP has seen various methods of smuggling through
checkpoints to include emergency vehicles, common carriers, commercial
vehicles, etc., CBP understands the nature and sensitivity of
legitimate emergency medical service vehicles traveling through USBP
checkpoints. It is CBPs policy and practice that we should endeavor to
assist other agencies when possible, and close coordination with
emergency medical services and local hospitals is key to ensuring that
both CBP and other agencies continue to operate effectively and
efficiently to accomplish their missions, especially in regard to
providing lifesaving medical treatment of any person that CBP might
encounter.
Question. Should you be confirmed, how will you instruct CBP agents
with regard to the treatment of ambulances?
Answer. USBP sectors and stations routinely work with medical
providers and emergency transportation companies to coordinate an
expedited inspection when provided advanced notice. These actions are
conducted with strict adherence to policy and regulations found in, but
not limited to the Border Patrol Handbook and local agreements guided
by national policy. If confirmed, I will work to ensure that CBP's
policy is effectively communicated to partner emergency responders in
affected areas. CBP will continue to take the appropriate enforcement
actions, but will continue to coordinate to ensure that no such action
impedes the legitimate medical treatment or lifesaving efforts of local
emergency medical services, traveling through USBP checkpoints.
Question. The 2011 memorandum ``Enforcement Actions at or Focused
on Sensitive Locations'' includes hospitals in its definition of a
``sensitive location.'' Please explain why that guidance was violated
in Rosa Maria's case.
Answer. Enforcement actions were not conducted at a sensitive
location, which in this case was Driscoll Children's Hospital. The
unaccompanied child was encountered and taken into custody at an
immigration checkpoint--a CBP operational location--and was already in
Border Patrol custody when she was escorted to the hospital so that she
could receive her scheduled medical care. Because no parent or guardian
of Rosa Maria was present at either the checkpoint or hospital, and no
parent or guardian of Rosa Maria contacted Border Patrol during this
time, CBP reasonably determined that Rosa Maria was a UAC at the time
she was encountered at the checkpoint and remained a UAC while in
Border Patrol custody at the hospital. As such, CBP was obligated by
law to place Rosa Maria into the care of the U.S. Department of Health
and Human Services Office of Refugee Resettlement after her medical
procedure.
Question. How many agents were present during the escort of Rosa
Maria to the hospital, during her surgery and recovery, and during her
detention and transfer to San Antonio?
Answer. Agency policy requires two (2) agents are present.
Question. Does CBP consider the medical needs of minors when making
determinations regarding detention?
Answer. CBPOs and Agents take every action necessary to ensure the
safety and welfare of individuals in our custody, and adheres to the
requirements of Federal law, regulation, and policy, including the
TVPRA.
Question. In the past 10 years, our government has spent more
taxpayer dollars on border security than at any other point in its
history. Since 2000, the U.S. Border Patrol budget has increased by 245
percent. At the same time, apprehensions are at lows not observed since
the 1970s.
Should Congress take greater account of the evolving border
dynamics when assessing if money should be spent on a border wall and
additional border patrol agents?
Answer. The border environment is dynamic, and the threat situation
is driven by adversary actions and is constantly in flux. CBP must be
afforded flexibilities to remain agile to respond appropriately based
on current mission needs and resourced to address capability gaps.
Securing the border requires an integrated approach including
infrastructure such as border wall and road access, surveillance
technology, response capability, and personnel. The U.S. Border Patrol
maintains a Capabilities Gap Analysis Process that begins with input
from the sector level, and has identified the necessary capabilities to
secure the border. The four key Master Capabilities are: Domain
Awareness, Impedance and Denial, Access and Mobility, and Mission
Readiness.
A significant portion of the success we have realized over the last
decade and a half can be attributed largely to increased deployment of
impedance and denial infrastructure. The border wall provides an
important and enduring capability to impede or deny illegal crossings
in those areas where it is applied, as demonstrated in San Diego,
Tucson, El Paso, and Yuma Sectors, but it is not effective alone, and
is not an appropriate solution for every area of the border. It is most
effective where there are populated areas near the line on the U.S.
side of the border, where illegal crossers can vanish within
residential and commercial areas.
Where it is applied, the border wall must be supported by the
ability to detect activity through advanced surveillance technology,
and the ability to respond effectively with mobile, trained personnel.
In this way, the most effective means of achieving operational control
of the border does not rely on any single capability, piece of
technology, or infrastructure. It is a mixture of all of those things,
executed by a properly trained and properly equipped mission ready
workforce.
USBP will continue to utilize the Capabilities Gap Analysis Process
to identify mission needs and offer courses of action to fill gaps--
impedance, technology, people--or a balance of all three depending on
available resources. We will build the wall where it is prudent and
effective and the design will change based on the environment and
operational needs. We will deploy technology to produce domain
awareness of illegal criminal activity exposing our citizens to risk.
We will increase the hiring and deployment of new and relocate existing
agents to both areas of increased threat and increased activity. A
comprehensive view of all border threats, risks and activity is
essential.
The significant improvements in border security over the past 10-15
years are promising, and reflect the benefits of sustained investment
in border security capabilities based on operational requirements,
combined with the effective operational strategies applied by the U.S.
Border Patrol, along with improvements in enforcement policies and
consequence delivery. Despite these improvements, we continue to see
over 25,000 apprehensions of illegal crossings per month between ports
of entry, as well as increasing amounts of hard narcotics seizures.
These threats--over 830 people a day--include previously deported
criminals, hardened smugglers employed by ruthless cartels, and other
potential security risks. It remains CBP's responsibility to
effectively interdict and deter these crossings, in concert with
immigration enforcement partners and supported by appropriations and
authorities from Congress as we strive toward operational control, the
effective deterrence or interdiction of all illegal crossings. The
impedance and denial capability provided by the border wall remains an
important component of that effort.
Question. By what specific metrics will you evaluate the
effectiveness and fiscal responsibility of various methods used for
border security, including walls, fences, levees, personnel at and
between ports, aerostats, drones, and manned aircraft?
Answer. USBP conducts an annual Capability Gaps Analysis Process
(CGAP) to identify gaps and other trends between the ports of entry.
Once the gaps have been identified, analyzed and prioritized, USBP
views these gaps through the lens of available resources including
personnel, persistent surveillance, and impedance and denial (i.e., the
wall)--to address those threats. The time to procure and available
funding shape the immediate response, while we address the long-term
strategic needs. We use metrics like the Interdiction Effectiveness
Rate \6\ and State of the Border risk analysis to guide and shape the
balancing of resources to meet the actions of the extremely nimble
transnational criminal organizations. ``Operational Control'' of the
border, as directed by both the Secure Fence Act of 2006 (8 U.S.C.
1701) and Executive Order 13767 (section 4),\7\ is an additional metric
that is used to guide our prioritized investment. When balancing
competing interests, DHS and CBP will use these and other specific
methodologies to identify and validate border control initiatives and
investments. Moving forward, we will include ``Operational Control'' of
the border as an additional metric, directed by both the Secure Fence
Act of 2006 (8 U.S.C. 1701) and Executive Order 13767 (section 4),\8\
to guide our prioritized investment. When balancing competing
interests, DHS and CBP will use specific methodologies to identify and
validate border control initiatives and investments.
---------------------------------------------------------------------------
\6\ Interdiction Effectiveness Rate (IER) is the percent of
detected illegal entrants who were apprehended or turned back after
illegally entering the United States between Southwest border ports of
entry. IERs are calculated by taking the sum of apprehensions and
turnbacks, and dividing by the sum of apprehensions, turnbacks, and
gotaways.
\7\ The Secure Fence Act and the executive order both define
``operational control'' as the ``Prevention of all unlawful entries
into the United States.''
\8\ The Secure Fence Act and the executive order both define
``operational control'' as the ``Prevention of all unlawful entries
into the United States.''
---------------------------------------------------------------------------
Question. Will you make this analysis public?
Answer. Annually, CBP makes many statistics and metrics available
to the public and we will continue to promote transparency where and
when we can while protecting the men and women defending the Nation.
The submission of many of these metrics and others to Congress is
required by statute as well.
Question. A 2016 OECD report showed that nearly half a trillion
dollars in global trade is made up of counterfeited and pirated goods
and that U.S. companies are the biggest victims, falling prey to fully
20 percent of the knockoffs. The OECD also reported postal parcels are
the top method of shipping these fake goods, amounting to 62% of
seizures from 2011 to 2013. Will you commit to working with me to
address this growing threat, and to make sure that CBP devotes the
resources necessary to combat the problem?
Answer. Yes, I can commit to working with you to address these
enforcement issues, if confirmed. CBP is committed to addressing the
growing challenges in the mail and express environments, particularly
with respect to the opioid crisis and IPR violations. To that end, CBP
and the United States Postal Service signed an MOU on September 1,
2017, outlining roles and responsibilities between the agencies and
better aligning out enforcement efforts. Additionally, my staff and I
have worked closely with the Postmaster General, Megan Brennan, and her
staff to cultivate a more robust relationship and enhance our ability
to function in tandem. Including the development of relevant
legislation and outreach to international partners and world
organizations such as the Universal Postal Union to allow for the
collection of advanced electronic data or AED.
Furthermore, CBP is currently conducting special operations in the
International Mail Facility environments throughout the year focusing
on IPR enforcement and we will continue to conduct these operations.
CBP is also looking to increase staffing at the International Mail
Facilities to help address the increased volume of shipments.
Question. Last Congress, various Senators as well as companies and
industries expressed concerns about duty evasion. We ultimately passed
the Enforce and Protect Act to address those concerns. We need to make
sure that we're fully and effectively countering duty evasion, and that
affected industries and workers are able to meaningfully participate in
this process. Given the importance of the Enforce and Protect Act to
many Senators on this committee, will you work with us to ensure our
concerns about duty evasion are addressed and that the law is fully
implemented so that domestic industry can participate actively in duty
evasion investigations?
Answer. If confirmed, I can assure you that I will continue to work
with you to detect and deter duty evasion. Part of that effort will
include CBP's continued vigorous enforcement of the Enforce and Protect
Act (EAPA) which CBP has been effectively and dutifully implementing
over the past year. To date, CBP has initiated over 14 EAPA
investigations, all of which have resulted in interim measures. These
investigations cover various products, including wire garment hangers,
wooden bedroom furniture, diamond sawblades, and oil country tubular
goods (steel tubing). The interim measures taken protect the revenue,
such as providing cash deposits on subsequent entries, suspending and
extending liquidation of entries, rejecting entries summaries that are
within the reject period, as well as evaluating the continuous bond and
requiring single transaction bonds, as appropriate. In these
investigations, the Trade Remedy Law Enforcement Directorate has
coordinated more than 10 foreign onsite verifications, including two
locations in Thailand and eight locations in Malaysia, among others, as
well as domestic onsite verifications and multiple cargo exams. The
onsite verifications are crucial to gather evidence of exporter
production capability and capacity, to assess the information against
that provided in the allegations and CBP's own research of the
exporters and importers.
The first EAPA allegation was filed only a few weeks after the
regulations went into effect. CBP quickly formed a small cohesive
investigative unit and completed its work well ahead of the statutory
deadline for interim measures. In that first investigation, CBP
initiated a unique investigative approach to obtain key information
when the parties being investigated declined to participate. CBP
reached its determination on interim measures a month ahead of the
statutory deadline and issued its final determination to the parties to
the investigation on August 14, 2017. The notice explained that there
was substantial evidence on the record that merchandise was entered
into the U.S. customs territory through evasion via transshipment of
wire hangers from China through Thailand. As a result of this
enforcement effort, the alleger filed eight more allegations and to
date, these investigations alone have stopped the evasion of $33
million AD duties annually.
Question. A recent article, citing a speech you gave in June, said
that during a 5-day interagency operation at JFK Airport, CBP and its
partner agencies found that 43 percent of shipments inspected were non-
compliant. As I understand it, these shipments were express and mail
shipments under the de minimis threshold--not traditional freight.
While I agree that de minimis shipments should come in duty-free, they
should not be free from enforcement. How does CBP plan to address the
issue of inspecting express and mail shipments and ensuring that all
products sold in the United States--regardless of their value--comply
with regulatory requirements and do not infringe on U.S. companies'
intellectual property rights?
Answer. Everyday, millions of Americans make online purchases,
often not realizing that they are, in fact, importing. Since 2000, the
number of Americans shopping online has increased nearly fourfold, up
from 22 percent to 79 percent. As the agency with physical control over
U.S. imports, CBP continues to adapt to the growth of de minimis
shipments and imports through e-commerce business to ensure a safe and
secure trade system that supports the U.S. economy. To address these
evolving challenges, CBP officially established the E-Commerce and
Small Business Branch within the Office of Trade and directed it to
develop and implement a new e-commerce strategy. The developed
strategic goals and objectives, will position CBP to address the
challenges in the e-commerce environment now and into the future.
Additional intellectual property rights (IPR) exams and special
operations targeting the small package environment in both express
carrier environment as well as in international mail will help to
address the critical need to continue to focus on IPR enforcement. By
strengthening the partnership with Homeland Security Investigations at
the National Intellectual Property Rights Center (IPRC), CBP will
direct targeting and operational resources to areas of greatest
concern. CBP will also work with the U.S. Postal Service to increase
the amount of advanced electronic data received from foreign posts and
work to identify emerging technologies that can provide enhanced
inspection capabilities of parcels.
______
Questions Submitted by Hon. Robert P. Casey, Jr.
Question. Mr. McAleenan, our domestic steel industry continues to
face unfair and illegal competition from counties like China, who not
only export heavily subsidized products to the United States and around
the world, but have also engaged in state-sponsored cyber-enabled
economic espionage. These are not the actions of a Nation respectful of
market principles.
Unfortunately, the Commerce Department's section 232 investigation
into imported steel and aluminum has stalled despite repeated calls to
take action by our steel industry, as well as me and other members of
Congress. This delay has made a bad situation worse--imports of steel
are now higher than they were last year as importers try to get product
into the United States before any remedy order goes into effect. If
Commerce and President Trump do eventually take action, Customs will be
tasked with enforcing such remedies, which is all the more critical
given the current surge in imports.
To what degree are you coordinating with Commerce, USTR and the
White House to ensure Customs is prepared to both enforce these import
restrictions and also identify and address any gaming or transshipment
that may stem from these restrictions?
Answer. CBP has coordinated with the Department of Commerce and the
International Trade Commission (ITC) to be prepared to address
technical implementation issues. CBP's National Targeting and Analysis
Groups (NTAGs) are prepared to identify and address risks related to
``gaming'' or trans-shipments that might occur to avoid these
restrictions when implemented.
Question. Nothing we ask you to do is simple or easy. You are on
the front lines of protecting our domestic industrial base from imports
of illegally subsidized goods--identifying transshipped goods and
properly imposing anti-dumping and countervailing duties are critical
components of those efforts.
Answer. AD/CVD Enforcement is a priority for CBP, and CBP
aggressively pursues all allegations and indications of evasion of
anti-dumping and countervailing duty orders.
Question. Can you describe how the sophistication of these efforts
have evolved?
Answer. AD/CVD evasion often involves sophisticated fraudulent
activity that takes place outside of the United States, including the
creation of fraudulent information and documents that are transmitted
to CBP with the entry information. Goods are illegally transshipped to
hide the identity of the parties involved in the transaction. The
countries that are used to facilitate the illegal transshipment often
vary. Parties also constantly look for and test potential loopholes in
complex AD/CVD requirements.
Question. How have you and your agents responded to the evolving
dynamics?
Answer. In order to verify and obtain proof of AD/CVD evasion,
including illegal transshipment, CBP employs document reviews, cargo
examinations, scientific testing, audits, and partnering with U.S.
Immigration and Customs Enforcement (ICE) and foreign customs
authorities. When CBP identifies types of AD/CVD evasion that are
potential criminal violations, CBP refers issues to ICE and supports
ICE criminal investigations. CBP also partners with the U.S. Department
of Commerce on AD/CVD enforcement, and works closely with the trade to
obtain market intelligence and commodity expertise. On an
organizational level, CBP has stood up 10 Centers of Excellence and
Expertise (Centers), which have a strong focus on commodity-based AD/
CVD orders and centralize AD/CVD activities for importers aligned with
the respective industry sector. The Centers are increasing uniformity
and expertise across CBP for the administration of AD/CVD entries and
AD/CVD enforcement.
CBP has also been addressing evasion through implementation of the
EAPA investigations. By centralizing the EAPA investigations under the
Office of Trade's Trade Remedy Law Enforcement Directorate (TRLED), CBP
has been able to ensure that any concerns occurring in the
investigations are readily addressed, as well as to provide better
communication and coordination among the various units within CBP that
are working these investigations. TRLED, being at Headquarters is also
better positioned to coordinate with other government agencies, such as
the U.S. Department of Commerce, as well as other foreign governments
to facilitate the exchange of information in these investigations.
Question. Please also discuss any tools you have which are
particularly helpful in addressing these challenges, including those
provided in the 2016 customs bill.
Answer. CBP takes an agency-wide approach to enforcing AD/CVD laws
and utilizes national assets and numerous tools from across the agency
to enforce AD/CVD. The combination of techniques and tools are targeted
on the specific evasion schemes. CBP audits are used in many cases of
AD/CVD evasion, and in FY 2017, identified $27.1 million in AD/CVD
discrepancies with $2.2 million collected to date. The Enforce and
Protect Act, which was part of the Trade Facilitation and Trade
Enforcement Act of 2015 (TFTEA) provided new means for the trade to
provide AD/CVD evasion allegations to CBP, and for CBP to pursue these
allegations, and is already proving effective. TFTEA also gave CBP new
tools and impetus around risk-based bonding. Finally, civil penalties
provide a means to penalize and deter AD/CVD evasion. In FY 2017, CBP
levied 43 monetary penalties totaling over $253.6 million on importers
for fraud, gross negligence, and negligence for AD/CVD violations. CBP
is also applying law enforcement targeting, intelligence, and
analytical techniques towards its trade enforcement mission.
Question. In your view, what are the most significant challenges to
you and your agency in the area of trade enforcement in the coming
years?
Answer. The most significant challenges to CBP in the area of trade
enforcement come from the dramatic changes ongoing in the global supply
chain. The most prevalent is the dramatic growth in e-Commerce and
direct to consumer imports. E-Commerce is largely responsible for the
increase in the volume of small shipments entering the U.S. stream of
commerce. As the agency with physical control over U.S. imports, CBP
must adapt to the growth of imports through e-commerce business. The
potential threat of harm to the public due to the challenges in the e-
commerce environment is real. From terrorist plots that have involved
small packages to the seizure of thousands of non-compliant goods with
health and safety issues, CBP must continue to address threats in e-
commerce shipments to preempt such risks to the Nation's safety and
security.
The impact to our markets and U.S. manufacturers of global
overcapacity of products, such as steel from China, along with
predatory market practices are two additional dynamics that create
major incentives for trade evasion and complicate detection and
enforcement efforts. Further, detection of forced labor in supply
chains is challenging given limited visibility into second and third
tier suppliers to foreign manufacturers. With the authorities granted
in TFTEA, a commitment to use all of CBP's law enforcement tools and
expertise, and additional resources, CBP will work to meet these
challenges.
Question. In June, the Drug Enforcement Administration reported
that 4,642 fatal drug overdoses occurred in 2016 in Pennsylvania, a 37%
increase from 2015. University of Pittsburgh researchers analyzed a
regional database and found that in 54% of the deaths, fentanyl was
among the drugs involved. In the last weekend of June, two Pennsylvania
hospitals treated 51 patients for overdoses in 48 hours. Toxicology
reports are pending, but investigators suspect the drugs contain
fentanyl or carfentanyl. It is clear that fentanyl and carfentanyl pose
a serious and increasing threat to ongoing efforts to curb the opioid
crisis.
Do you agree that unlawful importation of fentanyl and synthetic
fentanyls poses a growing threat to the Nation's health and security?
Answer. I agree strongly; the seizure statistics, along with
reports from law enforcement partners and communities across the
country, point to an area of growing concern. Within CBP, we are taking
active steps to address the unlawful importation of these substances.
Increased and sustained investments in our scientific infrastructure to
detect and identify these substances will support the containment of
this risk. These investments will be utilized to plan and implement
capabilities to mitigate the immediate impact of fentanyls to users,
their families, and their communities.
The importation of fentanyl--and other synthetic opioids--will
continue to pose a significant threat to the Nation's health and
security. Driven by the potential profits and growing demand,
transnational criminal organizations (TCOs) based in Mexico and small
criminal groups in the United States will likely seek to increase the
amount of fentanyl they smuggle into the country. We assess that
Mexican cartels will attempt to expand their fentanyl operations and
continue to move low-concentration, multi-kilogram shipments across the
SWB. At the same time, the amount of low-weight/high-concentration
fentanyl shipments arriving directly in the United States via mail/
express consignment operations will also rise. This smuggling method is
characterized by small criminal groups and individuals based in the
United States whose ability to leverage the Internet--especially the
``dark web''--allows them to obtain synthetic opioids directly from
overseas suppliers with relative ease and anonymity.
CBP's National Targeting Center (NTC) is where advance data and
access to law enforcement and intelligence records converge to
facilitate the targeting of travelers and items of cargo that pose the
highest risk to our security--in all modes of inbound transportation.
The NTC takes in large amounts of data and uses sophisticated targeting
tools and subject matter expertise to analyze, assess, and segment risk
at every stage in the cargo/shipment and travel life cycles. NTC
leverages classified, law enforcement, commercial, and open-source
information in unique, proactive ways to identify high-risk travelers
and shipments at the earliest possible point prior to arrival in the
United States and plays a key role in targeting the opioid supply. The
NTC works closely with interagency Federal and international partners
on joint initiatives aimed at targeting the opioid supply chain.
CBP will also enhance its risk segmentation based on data analytics
and data mining by expanding an advanced data pilot in the
international mail environment. Other efforts include prioritizing
targeting efforts to disrupt, degrade, and dismantle transnational
criminal organizations and illicit networks producing and distributing
fentanyl and its analogues.
Question. As CBP Commissioner, what steps will you undertake to
interdict fentanyl and synthetic fentanyls from entering the United
States?
Answer. According to provisional data from the Centers for Disease
Control and Prevention, in 2016, drug overdoses were the leading cause
of accidental death in the United States, with opioids accounting for
over 20,000 fatalities. Aligned with those increases, CBP has seen a
sharp increase in fentanyl seizures coming through our land ports of
entry and through express consignment and international mail
facilities. In FY 2017, CBP's Office of Field Operations seized more
than double the amount of fentanyl, a 153 percent increase.
Recognizing this trend and our critical role, in July 2017, I
directed the development of a comprehensive and integrated strategy to
enhance CBP's ability to target and interdict opioids entering the
United States. CBP will continue to arrest and interdict all persons
and contraband the entered into the U.S. illegally while conducting
border security operation, as well as through counter-network
operations to target and interdict the organizations involved in the
smuggling of opioids at each node in the supply chain based on
intelligence. I would also like to emphasize that ensuring that CBP
personnel are properly equipped to conduct these interdictions in a
safe and efficient manner must remain a top priority. To that end, CBP
is working with partner agencies to identify personal protective
measures and testing equipment to ensure officer safety while
intercepting and accurately identifying fentanyl in the field.
CBP is focused on allocating internal resources to interdict
fentanyl, in all forms, so as to prevent them from entering the United
States. CBP is also working with partner agencies to identify personal
protective measures and testing equipment to ensure officer safety
while intercepting and accurately identifying fentanyl in the field.
CBP is the first Federal law enforcement agency in the United States to
train canines to detect fentanyl. CBP currently has over 100 canines
trained to detect fentanyl and is planning to expand fentanyl training
to existing teams that operate in the border security environment as
well as ensuring all new canine teams have the ability to detect
fentanyl.
CBP is also looking for new and innovative technology to
presumptively identify fentanyl in the field. The Field Triage Infrared
Reachback program continues to be the most effective means to
presumptively identify new fentanyl analogues as it integrates virtual
scientists with frontline officers. Reachback scientists are able to
interpret data and recognize threats even if the spectra of these new
threats do not exist in established libraries. Additionally,
GeminiTM presumptive testing devices have been deployed
which is currently the only device on the market which is able to
utilize Raman and Fourier Transform Infrared Spectrometer (FTIR)
technology for presumptive identification purposes. CBP has procured 82
additional presumptive testing devices which will be deployed to field
offices nationwide. However, deployment will be heavily focused on the
mail/express courier operations and Southwest border.
CBP has conducted many successful special enforcement operations.
These enforcement operations have bolstered the interdiction of
narcotics on the Southwest border, international mail and express
courier facilities. Operation Hybrid II was conducted in Tucson, AZ
from September 10-23, 2017. Operation Hybrid I was conducted in Laredo,
TX in May 2017. Operation Hybrid bolsters CBP Field Offices with
personnel, intelligence, and equipment to interdict hard drugs and
other contraband being smuggled by pedestrians, privately owned
vehicles, commercial busses, and the Secure Electronic Network for
Travelers Rapid Inspection (SENTRI) Lanes. During Operation Hybrid I
and II, Laboratory and Scientific Services (LSS) deployed a mobile
laboratory to perform more rigorous testing for the presence of
fentanyl in loads that were interdicted.
CBP also conducted Operation Crush in the express courier
facilities in Memphis, TN; Cincinnati, OH; and Louisville, KY from
August 23-September 15, 2017. CBP collaborated with other components
and external agencies by leveraging enforcement, targeting,
investigations, science, and intelligence to identify and disrupt
individuals smuggling hard narcotics in the express courier
environment. CBP will expand Operation Crush to international mail
facilities beginning with the Chicago and New York Field Offices.
In addition to our internal operations, CBP will continue
international engagement to reduce the supply chain in source countries
through operational efforts and diplomatic engagement, specifically
with China, Mexico, and Central and South America. To address serious
gaps in information associated with fentanyl in Mexico, CBP conducted a
fentanyl workshop focusing on the Southwest border and Mexico in
September 2017 in Tucson, AZ. CBP is working with representatives of
Australia, Canada, New Zealand, and the United Kingdom to exchange
lessons learned, smuggling trends and best practices related to
fentanyl. Subject Matter Experts from the participating countries are
working together to conduct focus meetings discussing information such
as officer safety, testing/detection, and substance analysis/
exchange of spectra.
Lastly, I would note that CBP stands ready to assist Congress on
legislative solutions to ensure CBP and its Federal partners are well
equipped with the appropriate authorities, information sharing, and
resources to amplify our enforcement efforts and best address this
emerging threat.
Question. Reports indicate that the terrorist group ISIS has sold
cultural artifacts and antiquities on the black market to help finance
their operations in Iraq and Syria. In 2016, the Protect and Preserve
International Cultural Property Act became Pub. L. 114-151. I sponsored
this legislation in the Senate, which imposed restrictions on the
import of cultural artifacts from Syria and sought to improve
interagency coordination in stopping black market antiquities from
entering the United States.
Do you believe that addressing the illegal import of cultural
property into the United States, especially if they can be traced back
to terrorist groups, should be a priority for CBP?
Answer. Yes, CBP is committed to protecting cultural property,
heritage, arts and antiquities by developing and coordinating
comprehensive U.S. border enforcement efforts, and working closely with
Immigration and Customs Enforcement, Homeland Security Investigations.
To do so, CBP coordinates with a host of domestic and international
partners to combat illicit cultural property through a variety of fora,
at the strategic and tactical levels, to include the exchange of
intelligence, identification of anomalies, trends, and violations in
the global supply chain to target high-risk shipments and promote
compliance. The main forum for CBP domestic coordination with U.S.
Government agencies is the Department of State-led Cultural Heritage
Coordinating Committee (CHCC), to include its several working groups,
such as the Cultural Antiquities Task Force (CATF), to which CBP shares
situational awareness to all regarding ongoing and planned CBP
activities. In recent decades, the United States also has entered into
international agreements with other countries in an effort to limit the
trafficking of artistic, archaeological, and ethnological material. CBP
enforces these agreements through collaboration with other U.S. Federal
agencies, foreign governments and international organizations, e.g.,
the World Customs Organization.
Question. If confirmed, will you commit to implementing Pub. L.
114-151 in a manner that holds accountable those who would illegally
import cultural artifacts while allowing the legal, legitimate trade in
cultural property to continue?
Answer. CBP aggressively enforces existing U.S. import restrictions
on trafficked cultural property, art, and antiquities (CPAA), to
include enforcing Pub. L. 114-151; effecting seizures of trafficked
cultural property attempted to be imported to, exported from, or
trafficked through the United States in violation of law; pursuing
civil administrative penalties against violative parties; and
supporting Department of State repatriation of trafficked antiquities
to the rightful countries of origin. In order to monitor and detect
high risk activity, and specifically to pinpoint illicit cultural
property, CBP uses predictive analysis to identify suspicious
importations, leverages actionable intelligence obtained through
partner government agencies and industry collaboration to identify
high-risk transactions and performs national targeting to identify
high-risk transactions.
In the process, CBP also actively supports criminal investigations
by ICE Homeland Security Investigations (HSI) of the trafficking of
antiquities for sale in the United States, e.g., by conducting data
analysis, targeting, examinations, joint enforcement operations at and
beyond the border and referring interdictions of cultural property to
ICE HSI for investigative consideration. This close coordination also
assists ICE HSI with the identification, arrest, and conviction of
criminals and associated transnational criminal organizations
responsible for illicit antiquities trafficking.
Question. If confirmed, will you report to this committee on CBP's
seizures of cultural artifacts pursuant to Pub. L. 114-151?
Answer. Yes, CBP routinely tracks and conducts after-action
analysis of cultural property seizures, in part to inform its related
risk analysis efforts, and is readily able to report to the committee
regarding DHS seizures of cultural artifacts, both those of CBP and
ICE. As CBP works closely with ICE during the cultural property
interdiction, detention and seizure process in most instances, the CBP
reporting and attribution of cultural property seizures typically is at
the departmental level, viewed as a collaborative CBP and ICE effort.
After CBP detains cultural property, CBP contacts ICE so that ICE may
conduct a preliminary investigation to determine whether the detained
property is in violation of and imported contrary to law. CBP also
requests that ICE locate and identify an appropriate subject matter
expert to examine the property to make a preliminary determination
regarding the authenticity of the artifact or object. By routinely
collaborating with ICE, CBP is able to combat criminal organizations
that traffic in illicit cultural property and conduct coordinated ICE/
CBP enforcement operations at and beyond the border.
Question. What additional resources, training, or authorizations do
you believe CBP Officers need to effectively apply Pub. L. 114-151 and
other relevant statutes?
Answer. Pursuant to the Trade Facilitation and Trade Enforcement
Act of 2015 (Pub. Law No: 114-125), section 606, CBP is mandated to
train its personnel regarding the enforcement of illicitly trafficked
cultural property, archaeological or ethnological materials. CBP
continues to work in conjunction with its partner government agencies,
ICE, Department of State and the Smithsonian Institute, to rapidly
expand and pursue greater awareness and education throughout CBP of
cultural property, arts and antiquities theft and illicit trafficking;
to increase the number of trained resources dedicated to cultural
property protection; and to ensure a sufficient cadre of CBP personnel
nationwide with expertise devoted to targeting and processing cultural
property cases.
______
Questions Submitted by Hon. Michael F. Bennet
Question. President Trump's proposed wall would be extremely costly
and would require the Federal Government to confiscate private lands.
It would also likely involve numerous legal challenges, environmental
damage, and expensive ongoing maintenance. While President Trump has
insisted that the cost of the wall would be around $12 billion, a DHS
report released earlier this year estimates the cost at $21.6 billion,
not including maintenance.
What are the costs of building a wall along the entire southern
border--both in terms of price and its effect on trade?
Answer. At this time, CBP cannot provide a total cost for border
wall construction. CBP is currently developing a comprehensive
assessment of potential requirements for the border wall as part of the
Border Security Improvement Plan required by the FY 2017 Omnibus. That
said, the Southwest border is a dynamic environment and each mile of
border requires a tailored solution. Costs will vary depending on the
type of barrier required by the terrain, traffic, and threats.
We do not anticipate that the construction of a border wall will
impact on the flow of commerce at our ports of entry and have not
historically seen impacts to trade with past infrastructure
investments. In fact, we continue to make significant progress with our
Mexican partners to facilitate cross border trade and on August 23,
2017, CBP and Mexico Customs (SAT) signed a ``Memorandum of
Understanding'' (MOU) regarding ``Unified Cargo Processing'' (UCP). UCP
is a program which allows for joint inspections (either inbound or
outbound operations) by CBP personnel with foreign Customs personnel on
U.S. soil.
SAT currently lacks the infrastructure in Mexico to process all the
cargo and UCP allows for a single operational location. Instead of
trucks carrying cargo making multiple stops, in both Mexico and the
United States, UCP allows for a single streamlined inspection that
reduces wait times significantly and enhances security. It also fosters
information exchange on customs and security issues with Mexican
Customs. UCP with SAT is operational at the Laredo (truck, air, and
rail cargo), Rio Grande City (truck cargo), Texas; Nogales (truck and
rail cargo), Douglas (truck cargo), San Luis (truck cargo), Arizona;
and Calexico (truck cargo), California, ports of entry. CBP is in
discussion with SAT on potential UCP expansion to El Paso, Columbus,
Santa Teresa, Brownsville, Progresso, Pharr, Eagle Pass, Otay Mesa,
Tecate, Phoenix, and Port Fouchon (ocean cargo) ports of entry. These
potential UCP locations will be jointly determined by CBP and SAT based
upon operational impact, available personnel, and available space.
The UCP has helped reduce truck crossing wait times. Some trucking
companies reported to CBP that they have seen the crossing time reduced
from 3 hours to around 30 minutes.
Question. What metrics will you use to evaluate the cost
effectiveness of various methods to secure the border?
Answer. USBP conducts an annual Capability Gap Analysis Process
(CGAP) to identify gaps and other trends between the ports of entry.
Once the gaps have been identified, analyzed, and prioritized, USBP
views these gaps through the lens of available resources including
personnel, persistent surveillance, and impedance and denial (i.e., the
wall)--to address those threats. The time to procure and available
funding shape the immediate response, while we address the long-term
strategic needs. We use metrics like the Interdiction Effectiveness
Rate \9\ and State of the Border risk analysis to guide and shape the
balancing of resources to meet the actions of extremely nimble
transnational criminal organizations. ``Operational Control'' of the
border, as directed by both the Secure Fence Act of 2006 (8 U.S.C.
1701) and Executive Order 13767 (section 4),\10\ is an additional
metric that is used to guide our prioritized investment. When balancing
competing interests, DHS and CBP will use these and other specific
methodologies to identify and validate border control initiatives and
investments.
---------------------------------------------------------------------------
\9\ Interdiction Effectiveness Rate (IER) is the percent of
detected illegal entrants who were apprehended or turned back after
illegally entering the United States between Southwest border ports of
entry. IERs are calculated by taking the sum of apprehensions and
turnbacks, and dividing by the sum of apprehensions, turnbacks, and
gotaways.
\10\ The Secure Fence Act and the executive order both define
``operational control'' as the ``Prevention of all unlawful entries
into the United States.''
Moving forward, we will include ``Operational Control'' of the
border as an additional metric, directed by both the Secure Fence Act
of 2006 (8 U.S.C. 1701) and Executive Order 13767 (section 4),\11\ to
guide our prioritized investment. When balancing competing interests,
DHS and CBP will use specific methodologies to identify and validate
border control initiatives and investments. These requirements will be
further justified in the President's annual budget request as we move
forward.
---------------------------------------------------------------------------
\11\ The Secure Fence Act and the executive order both define
``operational control'' as the ``Prevention of all unlawful entries
into the United States.''
Question. Would this include walls, fences, personnel at and
---------------------------------------------------------------------------
between ports, aerostats, drones, and manned aircraft?
Answer. Yes; we will evaluate our success on achieving operational
control based on the effectiveness of our multi-layered approach
supported with all of the aforementioned resources. Layering resources
strategically enables the U.S. Border Patrol to detect, identify,
classify, and track persons entering the U.S. illegally between the
POEs and effect the appropriate response and resolution to secure our
Nation's borders. This approach utilizes manpower, technology, and
tactical infrastructure deployed in areas of greatest risk to ensure
the highest degree of success. A constant cycle of conducting
intelligence analysis, capability gap analysis, and mission analysis
ensures that resources are providing the expected results, or need
revisiting.
Question. Will you commit to making this analysis public?
Answer. Annually, CBP makes many statistics and metrics available
to the public and we will continue to promote transparency where and
when we can while protecting the men and women defending the Nation.
The submission of many of these metrics and others to Congress is
required by statute as well.
Question. A few months ago, I was in Mexico visiting officials
regarding our bilateral relationship. In addition to border security,
we discussed the heroin and opioid crisis and the changing nature of
the drug flow to the United States. As much as 94 percent of the heroin
entering America comes through Mexico. Fentanyl is also entering
America through Mexico from places like China. And labs in Mexico are
using precursor chemicals that are smuggled into the country to produce
fentanyl. One expert told us that not only can a large amount of heroin
fit into luggage, but compared to other substances, it is difficult to
trace.
Given this, what are the challenges facing your agents on the front
lines in tracking the flow of drugs across the border?
Answer. Mexico is the United States' third biggest commercial
partner. The border between the United States and Mexico remains the
world's busiest land border with both legitimate trade and travel and
smuggling endeavors. Mexican drug trafficking organizations (DTOs) are
poly-drug organizations that traffic heroin, methamphetamine, synthetic
drugs, cocaine, and marijuana throughout the United States. DTOs use
established transportation routes and distribution networks controlling
drug trafficking routes across the Southwest border (SWB). Mexican DTOs
exploit the large volume of pedestrian, cargo, and vehicular traffic to
smuggle drugs across the SWB by every imaginable means.
Some of the challenges our officers must overcome is that our
enhanced border enforcement posture at the POEs has forced DTOs to find
new and innovative smuggling methods. To address these unique
challenges, OFO is currently implementing Special Enforcement
Operations designed to identify and disrupt drug smuggling at a POE
through adaptable, intensified, and multi-layered narcotics smuggling
operations over a designated period. CBP realizes effective risk
management requires working closely with many Federal, State, and local
enforcement partners in a ``whole-of-government'' approach. This
approach will help us address gaps in intelligence and improve risk
management and enforcement actions.
CBP has made significant investments and improvements to our drug
detection and interdiction technology and targeting capabilities. CBP
utilizes non-intrusive inspection technology for the inspection and
presumptive testing of unknown substances to immediately identify
narcotic substances, to include Fentanyl.
Question. What additional tools do you need to stop those drugs
from entering the U.S. market?
Answer. As America's unified border agency, CBP has a critical role
in the Nation's efforts to keep fentanyl and other dangerous drugs out
of the hands of the American public while ensuring safety of CBP's
frontline officers. CBP is working with partner agencies to identify
presumptive testing equipment and personal protective measures to
ensure officer safety while intercepting and accurately identifying
fentanyl in the field. CBP has evaluated and deployed systems to
enhance interdiction rates while delivering training to officers and
agents. CBP continuously analyzes fentanyl trafficking routes and
interdiction rates across U.S. POEs to identify the most appropriate
requirements and equipment to detect, identify, and interdict these
dangerous drugs. CBP's current efforts include:
Expanding CBP's naloxone program to locations where opioids
may be handled by CBP personnel to ensure officer and agent
safety.
Developing and implementing training to ensure officers and
agents are aware of the risks involved with these drugs and
understand how to handle them.
Expanding CBP's Laboratories and Scientific Services
Directorate (LSSD) capacity to provide 24-7 reachback support
to officer and agents in the field.
Implementing a mobile laboratory capability at additional
field locations.
Procuring sophisticated laboratory equipment that can be
used to analyze narcotics seizure.
Procuring and deploying field testing equipment technology.
______
Questions Submitted by Hon. Mark R. Warner
Question. Customs and Border Protection has guidance meant to limit
routine immigration enforcement in sensitive places such as schools,
hospitals, and churches. Yet, earlier this year, undocumented
immigrants were arrested leaving an overnight shelter program at a
church in Virginia.
What is your approach to enforcement in sensitive locations,
including hospitals, schools, and churches?
Answer. CBP's sensitive locations policy remains in place and I
have no plans to change it at this time. I fully support our officers
and agents' efforts to enforce the laws of the United States through
their dedicated efforts in the field. Our policy has protective
measures for certain locations to ensure that the interruption of daily
lives of most Americans is reduced to the greatest extent possible.
Question. Do you believe there are any areas that should be off
limits to enforcement actions? Do you plan to ensure that sensitive
locations remain protected?
Answer. CBP's priority mission is to keep terrorists and their
weapons from entering the United States. CBPOs and Border Patrol Agents
enforce all applicable U.S. laws, including against illegal
immigration, narcotics smuggling, and illegal importation. Inevitably,
enforcement actions and investigative activities may, at times, lead to
an apprehension at or near community locations or establishments which
have been deemed as sensitive locations. CBP policy does not preclude
its Officers and Agents from conducting enforcement actions at or near
these locations, but directs that careful consideration be undertaken,
including consultation with supervisors where appropriate. In all
cases, Agents and Officers are expected to exercise sound judgment and
common sense while taking appropriate action, and exigent circumstances
requiring an Agent or Officer to enter a sensitive location must be
reported immediately to ensure visibility and oversight. CBPOs and BPAs
do not actively patrol or station themselves outside of locations
deemed sensitive under CBP policy.
Question. One issue highlighted to me by community leaders in
Virginia is the difficulty they face in getting clear guidance on the
administration's policies on immigration.
Would you commit to holding a field office meeting with community
leaders in Virginia?
Answer. Yes. In October, I met with a number of non-governmental
organizations from around the country to discuss some of these very
issues and I would be happy to have our personnel that oversee CBP
activities in Virginia meet with community leaders and answer any
question that fall within our agency's purview. My Assistant
Commissioner for Congressional Affairs will coordinate with your staff
to arrange a meeting.
Question. The administration has called for the hiring of 5,000
additional Border Patrol Agents--an approximately 25% increase.
Achieving this level of hiring will be difficult for a number of
reasons--including the fact that we currently have fewer agents than
authorized statutory levels. I'm concerned that we're risking security
to speed up this process.
Has the Department conducted a recent independent analysis of
current workforce needs?
Answer. USBP continues to refine its staffing methodology to
determine its requirements to conduct border enforcement operations.
USBP is currently working on the Personnel Requirements Determination
(PRD). This decision tool will support a staffing model with expert
field input and a combination of existing data and field input. Absent
this decision tool and corresponding staffing model, USBP utilized
existing apprehension data and effectiveness ratios, as well as hours
spent patrolling the U.S. border. This information, combined with
decision-maker judgement and experience, allows for both quantitative
and qualitative analysis to ultimately inform the proposed increase for
additional personnel. The PRD will answer: (1) what conditions and
workload are significantly related to current staffing levels; (2) what
do SMEs say are the current, minimal, optimal, and OPCON levels for
staffing and what evidence exists to support these estimates; (3) what
would be the optimal distribution of additional BPAs across sectors and
stations based on operational conditions; and (4) as conditions and
workload change, what are the effects on staffing requirements by
sector, station, and zone.
Question. A CBP spokesperson noted that CBP has shortened the
hiring process from 18 months to 5 months. Is this accurate?
Answer. Yes, CBP has worked tirelessly to streamline the hiring
process and saw a 65 percent reduction in the time to hire from a high
watermark of 469 days in January 2016 to a current average of 160-165
days through hiring hubs where we are able to streamline many of those
processes. In 2015, CBP launched its hiring hub pilot program to
resolve difficulties in scheduling and coordination among various
agency components compressing several months' worth of processing steps
into just a few days. In FY 2017, CBP incorporated lessons learned from
the hiring hub program into a new expedited hiring process that is now
being used for all frontline applicants.
Question. If so, where did the time savings come from?
Answer. The majority of the time savings came from reducing
internal bottlenecks and improved scheduling capabilities. It's
important to note that CBP's end-to-end reengineering of the frontline
hiring process included more than 40 process improvement initiatives
implemented since 2015. In addition to the aforementioned hiring hub
model, CBP also implemented several other process improvements to
streamline the process, add capacity, enhance the use of technology,
and leverage advanced data analytics.
Question. Estimates show that the construction of a physical wall
along the Southern border could total at least $22 billion, which the
American taxpayer would have to pay for. As I communicated to the U.S.
Department of Homeland Security in April, I'm concerned about the
administration's proposals to divert money from TSA and FEMA programs
that are currently protecting U.S. citizens.
How will CBP prioritize protecting our national security at all of
our borders?
Answer. CBP uses risk management to inform long-term planning and
resource decisions, which subsequently enable CBP to enhance operations
and achieve the agility that it needs to detect and respond to threats
in the border environment. In assessing risk at and between the POEs,
CBP emphasizes a threat-based approach that identifies and evaluates
threats enabling CBP to prepare, respond, and resolve any border
encounter or threat more effectively.
CBP's risk-based approach to investing and guiding operational
activity has improved U.S. border security over the last decade. For
example, the number of apprehensions between the POEs has been a useful
surrogate for the total number of people attempting to cross the border
illegally. Overall, the apprehension numbers have trended downward as
CBP has applied capabilities and new investments to increase border
security. Apprehensions have dropped in locations where CBP has applied
more resources. CBP also utilizes a risk-based approach to support the
expansion of Preclearance operations. Airports interested in the
program are evaluated and prioritized against core requirements for
Preclearance expansion, which include national security benefit to the
United States, travel facilitation benefit, feasibility, and strategic
impact.
Financial resources are not always sufficiently available to
support all desired border security initiatives. When fiscal
constraints arise, CBP's risk management approach enables a tailored
mix of resources that provides the highest possible levels of border
security across all the U.S. border environments that CBP is charged
with securing.
To ensure the appropriate mix of resources, CBP continuously
develops and enhances governance and business processes to facilitate
risk-informed decisions. At the enterprise level, CBP is enhancing its
performance management processes so that programs, investments, and
acquisitions will be measured for reaching the desired outcomes. CBP is
incorporating intelligence and risk-management principles into its
planning, programming, budget, and accountability (PPBA) business
process. Incorporating intelligence and risk management into PPBA
enables decisions to be more well-informed and risk-based.
CBP has also looked to find innovative solutions working with
private partners to ensure that we are able to meet operational
demands. The permanent authorization of a public private partnership
pilot that began in 2013 is a testament to this. Under the reimbursable
services program, we have been able to bridge the gap between services
CBP is able to provide through appropriated levels of funding and level
of services desired by stakeholders. Many of the RSP stakeholders have
been able to realize business goals such as decreased wait times for
travelers, increased volume of travelers and trade, as well as
processing of travel and trade outside normal port hours.
Question. Do you agree that sacrificing funding for these crucial
programs in order to build a physical wall could hamper our national
security?
Answer. I recognize that homeland security and meeting the
challenge to secure our Nation's borders cannot be met through one
single entity or approach alone. CBP is responsible for establishing
and justifying its own operational requirements, while the Department
and the Office of Management and Budget are responsible for balancing
these requirements against the other operational priority requirements
and availability of finite resources.
______
Questions Submitted by Hon. Bill Nelson
Question. For States like Florida that have major ports and
airports handling large amounts of international travelers and
commerce, it is critical that we have sufficient CBP Officers to
quickly move people and goods. This has been expressed to me time and
time again, most recently by Orlando International Airport, as well as
ports throughout my State. Will you commit to prioritizing resources to
ensure that States like mine have the port officers they need?
Answer. I recognize your concerns specific to Florida staffing, and
would emphasize that I am committed to ensuring all of our ports of
entry are appropriately resourced to adequately address increases in
trade and travel. I will remain focused on having the right mix of
resources at and between our Nation's POEs. As the CBP mission
continues to evolve to meet the threat to the Nation and facilitate
legitimate trade and travel, we must continually assess personnel
staffing requirement.
Currently, CBP utilizes its Workload Staffing Model (WSM) to ensure
CBPO staffing resources are aligned within the existing threat
environments, while maximizing cost efficiencies. The WSM is a data-
driven model that incorporates the most recent year's workload data to
determine staffing requirements and considers factors for future
facility enhancements and projected volume growth in cross-border
commercial and passenger traffic. Updated WSM results continue to show
a need for additional OFO capability to fully meet the standards set by
statute, regulation, and CBP policies, assuming maintenance of current
processes, procedures, technology, and facilities. The most recent
results--factoring in the additional 2,000 CBPOs funded by the FY 2014
Omnibus--show a need for 2,516 additional CBPOs through FY 2018. The
administration's submission of the updated 2017 WSM demonstrated an
important commitment to the requirements it identified, as did the
statement of intent in the President's FY18 budget to submit proposals
for authorizing language that would provide user fee funding to address
the gap as we have in past years.
At the same time, CBP is continuing to address 1,132 CBPO positions
that are vacant as of September 30, 2017. It is my top mission support
priority, and will remain so if confirmed, to achieve full authorized
and funding staffing levels for all frontline law enforcement
positions.
CBP has worked aggressively over the past several years to
implement a multifaceted recruitment strategy that improves frontline
hiring processes and enhances its ability to meet hiring goals. CBP
continues to strengthen all aspects of hiring, which includes
initiatives designed to attract more qualified applicants, expedite the
pre-employment timeline, refine the hiring process to address all
potential bottlenecks, and reduce the attrition rate of the existing
workforce. Staffing the frontline with well-qualified individuals of
the highest integrity remains a top priority for CBP.
Additionally, CBP continues to implement Business Transformation
Initiatives (BTIs) by focusing on faster processing in the air,
pedestrian, vehicle, and cargo environments. CBP makes a concerted
effort to implement the newest and most advanced technologies at the
Nation's POEs to create efficiencies. Along with technological
advancements, CBP is deploying biometrics and processing enhancements
and expanded Trusted Traveler Programs. These transformative
initiatives and technological advancements provide the platform from
which CBP can achieve operational success in the face of increased
border and air traffic, budget constraints, and demand for new and
expanded services at existing and proposed POEs. CBP's BTIs have saved
more than 1 million inspectional hours through FY 2016 and are
estimated to save more than 500,000 inspectional hours or (over 400
CBPOs) through FY 2018.
To support increased staffing needs, CBP continues implementation
of alternative funding strategies to increase revenue sources. CBP
continues to support the Donations Acceptance Program and the
Reimbursable Services Program made permanent with the enactment of the
Cross-Border Trade Enhancement Act of 2016 (Pub. L. 114-279).
Since the pilot program began in 2013, CBP's Reimbursable Services
Program has entered into agreements with more than 60 stakeholders,
providing over 368,000 additional processing hours at the request of
our stakeholders-accounting for the processing of more than 8 million
travelers and over 1.1 million personal and commercial vehicles. In
2017, CBP tentatively selected 64 stakeholders across 54 ports of entry
for participation in the RSP (34 air POEs, four for air and sea POEs,
one for land POE, and 15 for sea POE). To date the CBP Donations
Acceptance Program (DAP) has approved 17 donation proposals totaling
$150 million in planned public and private sector investment in U.S.
POEs and important CBP initiatives. Ten of the 17 proposals have been
approved since enactment of the Cross-Border Trade Enhancement Act in
December 2016, while the others were approved under a predecessor pilot
authority provided by Congress. The 10 DAP projects range from
infrastructure improvements, partnerships for the provision of
biometrics services, and data and donations of luggage for canine
training purposes. Partnerships entered into under DAP have and will
continue to enhance border security and promote the safe and efficient
flow of passenger travel and commercial trade.
CBP continues to see a steady stream of applications for new
agreements under this legislation, so while recent results have been
very encouraging, continued growth and expanded utilization of this
program is expected to allow CBP to approve new and enhanced services,
which could not be provided without the Cross-Border Trade Enhancement
Act.
Question. A number of reports allege that CBP officials are not
following the legal process for people seeking political asylum who
arrive at our borders. There are reports that asylum seekers have been
turned away by Border Patrol agents without an opportunity to present
their asylum claims. This is particularly concerning as Venezuelans
flee a political, humanitarian, and economic crisis that is worsening
by the day and Cubans continue to seek shelter from a repressive Castro
regime. Will you commit to making sure that asylum seekers are not
turned away at the border?
What steps will you take to make sure your agents are actually
following CBP policies on the ground?
Answer. Over the last 2 years, CBP has referred over tens of
thousands of applicants for admission who expressed fear of return to
U.S. Citizenship and Immigration Services for review by an asylum
officer. CBP carries out its mission of border security while adhering
to U.S. and legal international obligations for the protection of
vulnerable and persecuted persons. The laws of the United States, as
well as international treaties to which we are a party, allow people to
seek asylum on the grounds that they are being persecuted outside of
the United States because of their race, religion, nationality,
membership in a particular social group, or political opinion. CBP
understands the importance of complying with these laws, and takes its
legal obligations seriously. Accordingly, CBP has designed policies and
procedures based on these legal standards, in order to protect
vulnerable and persecuted persons in accordance with these legal
obligations. All CBP officers must comply with all law and policy, and
appropriate disciplinary action may be taken against those who do not.
All complaints against officers or agents, regardless of the mode
through which they are received, are recorded and investigated, and
appropriate action is taken against CBP employees who are found to have
violated agency policy. Additionally, CBP's Office of Professional
Responsibility (OPR) has been actively engaged with Non-Governmental
Organizations (NGOs) to identify and investigate incidents alleging
that persons were prevented or discouraged from making claims of fear
to CBP.
Additionally, both Border Patrol Agents (BPAs) and Customs and
Border Protection Officers (CBPOs) receive training on the proper
processing, treatment, and referral of aliens who express a fear of
return. This training begins at the Academies, and is reinforced
through Post Academy training and the periodic issuance of memoranda
and musters. CBP also issues periodic guidance to the field reminding
CBPOs and BPAs of their legal obligations towards those who express a
fear of return.
Question. There is an epidemic in my State of Florida, and that is
the opioid crisis. Overdose deaths from heroin and fentanyl are hitting
record levels. A lot of it is coming in from China, and last week the
Justice Department indicted a big drug trafficking ring, including some
folks in Florida. This is a start, but what we need is a comprehensive
approach, as well as sufficient resources to truly fight this epidemic.
I've supported additional funding that's already reaching local
communities, and this week I cosponsored legislation to boost that
funding even more. What specifically is CBP doing to help fight this
crisis?
Answer. According to provisional data from the Centers for Disease
Control and Prevention, in 2016, drug overdoses were the leading cause
of accidental death in the United States, with opioids accounting for
over 20,000 fatalities. Aligned with those increases, CBP has seen a
sharp increase in fentanyl seizures coming through our land ports of
entry and through express consignment and international mail
facilities. In FY 2017, CBP's Office of Field Operations seized more
than double the amount of fentanyl, a 153-percent increase, than seized
in FY 2016. Recognizing this trend and our critical role, in July 2017
I directed the development of a comprehensive and integrated strategy
to enhance CBP's ability to target and interdict opioids entering the
United States. CBP will continue to arrest and interdict all persons
and contraband entering into the U.S. illegally while conducting border
security operation, as well as through counter-network operations to
target and interdict the organizations involved in the smuggling of
opioids at each node in the supply chain based on intelligence. I would
also like to emphasize that ensuring that our CBP Officers and Agents
are properly equipped to conduct these interdictions in a safe and
efficient manner must remain a top priority. To that end, CBP is
working with partner agencies to identify personal protective measures
and testing equipment to ensure officer safety while intercepting and
accurately identifying fentanyl in the field.
CBP is greatly focused on allocating internal resources to
interdict fentanyl, in all forms, so as to prevent them from entering
the United States. CBP is the first Federal law enforcement agency in
the United States to train canines to detect fentanyl. CBP currently
has over 100 canines trained to detect fentanyl and is planning to
expand fentanyl training to existing teams that operate in the border
security environment as well as ensuring all new canine teams have the
ability to detect fentanyl.
CBP is constantly looking for new and innovative technology to
presumptively identify fentanyl in the field. The Field Triage Infrared
Reachback program continues to be the most effective means to
presumptively identify new fentanyl analogues as it integrates virtual
scientists with frontline officers. Reachback scientists are able to
interpret data and recognize threats even if the spectra of these new
threats do not exist in established libraries. Additionally,
GeminiTM presumptive testing devices have been deployed
which is currently the only device on the market which is able to
utilize Raman and Fourier Transform Infrared Spectrometer (FTIR)
technology for presumptive identification purposes. CBP has procured 82
additional presumptive testing devices which will be deployed to field
offices nationwide. However, deployment will be heavily focused on the
mail/express courier operations and Southwest border.
CBP has conducted many successful special enforcement operations.
These enforcement operations have bolstered the interdiction of
narcotics on the Southwest border, international mail and express
courier facilities. Operation Hybrid II was conducted in Tucson, AZ
from September 10-23, 2017. Operation Hybrid I was conducted in Laredo,
TX in May 2017. Operation Hybrid bolsters CBP Field Offices with
personnel, intelligence, and equipment to interdict hard drugs and
other contraband being smuggled by pedestrians, privately owned
vehicles, commercial busses, and the Secure Electronic Network for
Travelers Rapid Inspection (SENTRI) Lanes. During Operation Hybrid I
and II, Laboratory and Scientific Services (LSS) deployed a mobile
laboratory to perform more rigorous testing for the presence of
fentanyl in loads that were interdicted.
CBP also conducted Operation Crush in the express courier
facilities in Memphis, TN; Cincinnati, OH; and Louisville, KY from
August 23-September 15, 2017. CBP collaborated with other components
and external agencies by leveraging enforcement, targeting,
investigations, science, and intelligence to identify and disrupt
individuals smuggling hard narcotics in the express courier
environment. CBP will expand Operation Crush to international mail
facilities beginning with the Chicago and New York Field Offices.
In addition to our internal operations, CBP will continue
international engagement to reduce the supply chain in source countries
through operational efforts and diplomatic engagement, specifically
with China, Mexico, and Central and South America. To address serious
gaps in information associated with fentanyl in Mexico, CBP conducted a
fentanyl workshop focusing on the Southwest border and Mexico in
September 2017 in Tucson, AZ. CBP is working with representatives of
Australia, Canada, New Zealand, and the United Kingdom to exchange
lessons learned, smuggling trends and best practices related to
fentanyl. Subject matter experts from the participating countries are
working together to conduct focus meetings discussing information such
as officer safety, testing/detection, and substance analysis/
exchange of spectra.
Lastly I would note that CBP stands ready to assist Congress on
legislative solutions to ensure CBP and its Federal partners are well
equipped with the appropriate authorities, information sharing, and
resources to amplify our enforcement efforts and best address this
emerging threat.
Question. I was in Puerto Rico recently and took a helicopter into
the remote areas to see the conditions on the ground. Our fellow
Americans are struggling to survive and desperately need our help. We
need to get supplies into the hardest hit, remote areas of the island.
Please describe CBP's efforts to date in Puerto Rico.
Answer. In October I also visited CBP operations and personnel in
Florida, the U.S. Virgin Islands, and Puerto Rico. The magnitude of the
damage caused by both Hurricanes Irma and Maria is devastating. I was
humbled by the response of the CBP personnel who live and work in these
affected areas, putting mission first and assisting residents/neighbors
who were in desperate need.
In support of Federal Emergency Management Agency (FEMA) and other
Federal, State, and local partners, CBP has provided support to various
Emergency Support Functions (ESFs) including Transportation (ESF-1),
Communications (ESF-2), Emergency Management (ESF-5), Logistics support
(ESF-7), Search and Rescue (ESF-9), Public Security and Safety/Law
Enforcement (ESF-13),\12\ and External Affairs (ESF-15). CBP deployed
224 employees with the Surge Capacity Force in support of FEMA's
hurricane responses to Harvey, Irma, and Maria--specifically 150 CBP
officers and agents were deployed to Puerto Rico to contribute to the
relief effort. CBP distributed over 121,154 ready-to-eat meals, 770,262
bottles of water and 536 generators. CBP deployed subject matter
experts to support FEMA's intergovernmental affairs mission to engage
with local political leaders, local government officials, and non-
governmental organizations across Puerto Rico's 78 municipalities.
---------------------------------------------------------------------------
\12\ CBP deployed 75 law enforcement personnel (performing a wide
variety of missions) in support of FEMA's Emergency Support Function 13
(ESF-13; Public Safety and Security). Teams provided direct Federal
assistance to Puerto Rico police departments as well as force
protection for Disaster Medical Assistance Teams (DMAT).
CBP air assets have been instrumental in logistical support of
emergency response personnel and equipment for the whole-of-government
response. CBP's Air and Marine Operations (AMO) UH-60 Blackhawk
helicopters have been instrumental in providing food, water, and
supplies in remote areas where vehicles or other modes of
transportation was unable to access. In fact, helicopters were the only
way these lifesaving supplies were able to be distributed to places
needing urgent care items. Not only were areas being resupplied, AMO
aircraft and crew played a crucial role in rescue operations in and
around Puerto Rico. AMO employees flew almost 2,000 hours, on nine (9)
---------------------------------------------------------------------------
different categories of airframes, completing 287 separate missions.
CBP will continue to support the on-going relief efforts in and
around Puerto Rico and provide assistance to the Island for the
foreseeable future.
Question. What is CBP's long-term plan for helping FEMA and DOD?
Answer. CBP ``organically'' has assets in Puerto Rico including,
but not limited to, San Juan and Aguadilla. CBP intends to continue to
carry out its mission and partner with FEMA and Department of Defense
(DOD) to assist as needed based on evolving (if not slowly improving)
conditions. For example, CBP maintains support to the FEMA National
Response Coordination Center (NRCC) and is continuing to monitor and
support requests for aerial assets if or when needed.
In support of FEMA (via DOJ's Bureau of Alcohol, Tobacco, Firearms,
and Explosives) CBP is currently the last deployed Federal law
enforcement team to remain on the island and has assisted various
Puerto Rico entities including but not limited to the Puerto Rico
Police Department in an effort to stabilize its local police force and
facilitate a return to normal operations. This team will demobilize
when FEMA is able to determine the need for Federal support is no
longer required.
Local Puerto Rico CBP personnel have and will continue to engage
with their local counterparts and assess local recovery requirements.
CBP through its Lead Field Coordinator (LFC) Diane Sabatino (Director
of Miami Field Operations) maintains daily communication with its
Puerto Rico based counterparts and similarly, remains in communication
with its Headquarters counterparts to respond to local recovery needs
where CBP is able to provide support.
CBP as the largest Federal law enforcement agency in the United
States is equipped with assets and special response teams. CBP has a
close relationship with FEMA and we will remain available to support
disaster responses around the country.
______
Questions Submitted by Hon. Rob Portman
Question. Before the Enforce and Protect Act (EAPA) was signed into
law, CBP's system for investigating duty evasion was opaque and
cumbersome. EAPA creates an open process which essentially gives CBP a
year to finish investigations. It has been great to see some success--
CBP's efforts on wire coat hangers, diamond sawblades, and oil country
tubular goods comes to mind. Thank you for your work on these
investigations. However, at the same time, there is still more that can
be done under the EAPA framework.
Could you comment broadly on how EAPA has helped CBP address duty
evasion?
Answer. The Enforce and Protect Act (EAPA) established a formal
process for CBP to investigate allegations of evasion of anti-dumping
and countervailing duty orders (AD/CVD). Specifically, it provides for
a transparent administrative proceeding parties can both participate
in, and learn the outcome of, a relevant investigation. The transparent
nature of these investigations has had several benefits, such as
encouraging importers to participate once they see the public record
being compiled in the investigation.
Further, under this newly established process, CBP created various
web-based allegation solutions. For example, EAPA-related allegations
may be submitted to CBP via email and CBP also created a website to
post background information, new updates, and decisions made in the
EAPA investigations. This permits real time communication with the
trade on important developments in the EAPA program.
Additionally, by centralizing the EAPA investigations under the
Office of Trade's Trade Remedy Law Enforcement Directorate (TRLED), CBP
has been able to ensure that any concerns occurring in the
investigations are readily addressed, as well as to provide better
communication and coordination among the various units within CBP that
are working these investigations. TRLED, being at Headquarters is also
better positioned to coordinate with other government agencies, such as
the U.S. Department of Commerce, as well as other foreign governments
to facilitate the exchange of information in these investigations.
Question. And mindful of the fact that you have stated CBP's belief
that these reforms would take additional legislation, do you believe
that the use of Administrative Protective Orders (APOs) or permitting
allegations of duty evasion to be filed even when the importer is
unknown, would be helpful at curtailing duty evasion?
Answer. The EAPA interim final regulations currently require the
identification of the importer in the allegation because a party might
argue that CBP's identification of the importer's name violates the
Trade Secrets Act. Thus, a legislative change exempting this from the
Trade Secrets Act would permit CBP to reveal the identity of the
importer who may be entering merchandise as to evasion and avoid
potential violation of the Trade Secrets Act. CBP has developed a
legislative proposal that is currently being vetted through the
interagency clearance process.
This would be extremely helpful in curtailing duty evasion. As more
importers become aware of the use of public data in these
investigations, they will actively work to shield their identity and
hinder the ability of allegers to bring allegations. Closing this
loophole means that the alleger need only to identify the scheme and
parties involved, but not necessarily the actual importer of record in
order for CBP to investigate the allegation and publicly bring the
importer of record into the investigation.
An APO provides the ability for parties' attorneys (not the parties
themselves) to review and comment upon business confidential
information in the course of a proceeding. The benefit that this may
add is that the representatives for the importer and alleger may be
able to more fully comment upon the other's submissions after having
received the unredacted version. Administering such a manually
intensive process would take our limited resources away from our
investigations, it could potentially hinder our ability to conduct
these investigations, rather than facilitate them if such a requirement
were added without the resources necessary to administer an APO
process. Additionally, we currently serve documents to parties via
email as those documents contain only public information. Service of
documents with business confidential information may require us to
implement an electronic case management system, which would require
additional resources and time to establish. Furthermore, CBP currently
lacks necessary statutory authority to adopt an APO process.
Question. As you know one of the intended benefits of the Enforce
and Protect Act was to incorporate more stakeholder input to better
target duty evasion. In the enacted Trade Facilitation and Trade
Enforcement Act, under the EAPA guidelines the agency committed to a
establish trade enforcement task force to address issues of concern to
stakeholders.
Are you aware if this task force has been established?
Answer. In May 2016, CBP established a Trade Enforcement Task Force
to address AD/CVD evasion. Effective October 1, 2017, this function was
incorporated into a permanent Enforcement Operations Division within
the Trade Remedy Law Enforcement Directorate, Office of Trade. This new
division is responsible for intake and investigation of all EAPA
allegations. This division also conducts regular outreach to the trade
community to discuss best practices for submitting an EAPA allegation
and answer any questions.
Question. On March 31, 2017 President Trump issued an executive
order entitled ``Establishing Enhanced Collection and Enforcement of
Antidumping and Countervailing (AD/CV) Duties and Violations of Trade
and Customs Laws.'' The order directs the development of a report in
consultation with the Departments of Treasury and Commerce and the U.S.
Trade Representative.
What is the agency doing with regard to this executive order?
Answer. The plan called for in Executive Order 13785, entitled
``Establishing Enhanced Collection and Enforcement of Antidumping and
Countervailing Duties and Violations of Trade and Customs Laws,'' was
transmitted by DHS to the White House during the week of September 11,
2017. The report was developed in consultation with the Department of
Treasury, the Department of Commerce, the U.S. Trade Representative,
DOJ and ICE.
Question. Has the report already been delivered to the President?
Answer. DHS has completed the report, entitled ``Establishing
Enhanced Collection and Enforcement of Antidumping and Countervailing
(AD/CV) Duties and Violations of Trade and Customs Laws'' and
transmitted to the White House the week of September 11, 2017.
Question. Section 307 of the Tariff Act bans the import of any
products made with forced labor. In the last Congress, the committee
took further action to strengthen section 307's ban by passing the
Trade Facilitation and Trade Enforcement Act into law, which included
language that closed a loophole that had been allowing goods made by
human trafficking victims to be imported into the United States. In
doing so, Congress made clear that human trafficking is unacceptable,
and we should not be furthering this exploitation by accepting products
produced with forced labor.
However, in spite of Congress's direction to support trafficking
victims and protect American workers by robust enforcement of section
307, CBP only issued four Withhold Release Orders (WROs) last year and
none yet this year. Human Rights First estimated $142 billion worth of
products made by forced labor are coming into the country each year,
and the current level of engagement from CBP on this issue is simply
insufficient.
Will you commit to prioritizing the enforcement of the section 307
ban, including through issuing WROs?
Answer. Yes, if confirmed, during my tenure CBP will prioritize the
enforcement of section 307 including the issuance of WROs. To that end,
CBP is actively self-initiating forced labor investigations to protect
vulnerable populations and prevent goods produced with forced labor
from entering into our supply chains. We are developing information
internally and collaborating with interagency partners to self-initiate
these important cases. We are currently evaluating several potential
circumstances where withhold release orders could be appropriate.
Question. As you know, the cruise business is new to the Great
Lakes, with Great Lakes ports accepting cruise ship passengers for the
first time in 2015. The Port of Cleveland first accepted cruise ship
passengers earlier this year. I am pleased that CBP has worked with the
Great Lakes ports on methods to process incoming passengers from cruise
vessels during these early stages, such as jump kits and temporary
structures. Such methods were approved by CBP as temporary alternatives
with an understanding that permanent structures may need to be built in
the future as the cruise business grows. Therefore, the sudden decision
made by CBP in April to deny cruise ships into Great Lakes ports that
lacked permanent facilities would have shut down the cruise business in
the Great Lakes. I appreciate CBP's recognition that this decision was
sudden and unworkable, and was reversed. I understand that CBP is now
working with the Great Lakes ports on plans to accept cruise passengers
in 2018.
Can you provide an update on the discussions on how passengers will
be processed at Great Lakes ports in the 2018 shipping season?
Answer. On October 18th, I met with Michigan Governor Rick Snyder
to talk through these concerns and I know our Director of Field
Operations will continue the dialogue locally. CBP continues to work
with cruise lines operating in the Great Lakes to design and implement
workable and viable solutions for the processing of passengers and
crew. Due to the varying infrastructure around the Great Lakes there
most likely will be several solutions depending on the passenger and
crew processing environment. Current numbers reflect that a total of 25
cruises took place in FY 2017, a total of 3,313 passengers and 1,896
crew members were processed. There were no adverse actions during the
FY 2017 cruise season indicating a lower risk traveler. CBP will
continue to work with the appropriate stake holders during the winter
months to develop plans for the FY 2018 cruise season.
Question. Has CBP made any long term decisions about the use of
portable jump kit technologies as a temporary method to accept
passengers?
Answer. CBP continues to research new technology that enhances and
enables CBP to maintain security of the United States while
facilitating lawful trade and travel. While portable jump kits were the
available technology and were utilized as a temporary solution,
technology and new pilot programs in the marine environment could
provide other solutions to the processing of passengers and crew. CBP
cannot commit to the continued use of jump kits as we are moving
forward with innovative technology.
Question. Moving forward, can you commit to working with the Great
Lakes ports on a long term and cost-effective solution that will aid in
the growth of the cruise business in the Great Lakes while
acknowledging, as CBP has in the past, that temporary methods may be
necessary in the short term?
Answer. Yes, in addition to the discussions for the 2018 cruise
season, I will commit to exploring long term and cost-effective
solutions, such as the Donation Acceptance Program which may be
effective in addressing the current lack of processing facilities which
would enable CBP to continue its services to the Great Lakes cruising
industry.
______
Questions Submitted by Hon. John Thune
Question. How will the CBP balance the needs of port and cargo
security with growing commerce in a supply chain that requires
efficiency in and around our ports in order for goods to move through
the larger system?
Answer. CBP will continue to employ a layered risk-management
approach--relying on advanced electronic information, analytics, non-
intrusive inspection technology, and trade community and international
partnerships--to address threats in the supply chain at the earliest
possible point and facilitate the flow of the lawful trade through
ports of entry. CBP is committed to providing a secure gateway for
international trade, eliminating supply chain barriers at the border,
and developing transformation to enhance the movement of goods through
concerted partnership with experts in the trade community.
Question. Hiring veterans has been a useful tool to streamline the
CBP hiring and assignment process. How can CBP continue to promote and
utilize veterans in the CBP workforce to ensure the secure and
efficient movement of goods within a complex supply chain?
Answer. A key element in CBP's Hiring Strategy is a focus on
recruiting transitioning service-members, veterans, and disabled
veterans for both frontline law enforcement and mission support
occupations. CBP uses direct hiring authorities for qualified veterans.
In FY 2017, veterans represented over a quarter (28.95 percent) of the
total workforce and almost one-third (31.64 percent) of new hires.
Veterans with a compensable disability of 30 percent or more
represented 6.5 percent of the CBP workforce, and constituted a little
over 10 percent of new hires.
In close partnership with the Department of Defense, CBP attends
national military conferences and advertises in military publications
and on military oriented websites to attract veterans. CBP conducts
recruitment and outreach activities at military installations and
affiliated organizations to include establishing CBP Recruitment
Offices at Ft. Campbell, KY; Ft. Drum, NY; Ft. Hood, TX; and Ft. Bliss,
TX to pilot a concept for attracting additional veterans. CBP fully
intends to expand these pilot locations in hopes of offering America's
service members more physical access to CBP recruiters allowing them a
great place to build a career. In addition to this concept CBP
currently conducts expedited hiring hubs monthly for veterans at
military installations.
In FY 2017, CBP recruiters conducted 1,906 Special Emphasis
Recruiting events, targeting active duty service-members, veterans, and
a multitude of diversity groups at military installations, veterans'
groups, and Historically Black Colleges and Universities (HBCUs). CBP
uses the Veterans Recruitment Appointment (VRA), which has vastly
streamlined the hiring process for transitioning service-members,
veterans, and veterans with disabilities who qualify for our LEO
positions.
CBP is also working to standardize recruiter training to
incorporate specific benefits that CBP offers to Veterans and
transitioning service members. In FY 2018, this training will be
provided to approximately 1,000 CBP Recruiters. We believe this
training will be significant in equipping our Recruiters to more
effectively articulate why Veterans should consider CBP as a post-
service career option. Additionally, in FY 2018 CBP will partner with
the Department of Army Career Skills Program (CSP), which is part of
the military life cycle that prepares Soldiers for civilian employment
upon completion of their military service.
______
Prepared Statement of Hon. Ron Wyden,
a U.S. Senator From Oregon
I want to begin by thanking you for being here today. In my view,
you're a highly qualified nominee, and I appreciate your willingness to
take on a tough job as Commissioner of U.S. Customs and Border
Protection. I also want to thank you for working with me to increase
staffing at the Port of Portland to accommodate the airport's growth as
a destination for international flights, including a new flight from
Mexico which I hope will be finalized soon. Portland's struggle with
adequate staffing illustrates the acute need to hire more blue uniforms
to enforce our trade laws and facilitate travel. I hope that is
something you will continue to focus on.
There are two specific issues I want to touch on in my opening
remarks today with respect to CBP. The first is trade enforcement.
This administration has talked a tough game when it comes to trade,
but its record to date has not lived up to that talk. In my view, if
you're genuinely serious about getting trade done right, step one is
vigorously enforcing the laws on the books. Customs and Border
Protection is on the front line of that effort.
Last year, the Trade Facilitation and Trade Enforcement Act was
signed into law. The Finance Committee wrote that legislation because
it was clear the trade enforcement mission at CBP was getting short
shrift, and that was a major threat to red, white, and blue jobs.
Our legislation was all about making sure CBP was fast enough and
equipped to keep up with modern-day trade cheats, who are determined to
undercut American workers by evading our trade laws. A lot of good work
was done to put those tools into effect in the months after the bill
was signed, but it seems like many of those efforts have stalled under
this President. That needs to change. Trade enforcement is about
constant vigilance and staying ahead of the new tactics used by trade
cheats to get around our laws.
But when I look at the administration's plans for CBP, once again
it seems trade enforcement is an afterthought. The White House seems a
lot more focused on throwing money at a border patrol army and
prototypes for a border wall that may never get built. Trade
enforcement is going to fall by the wayside and jobs will disappear if
the administration stays on this course.
It doesn't matter what kind of deals you propose or what laws you
put on the books if you're not serious about enforcing them.
There's a lot of work for Mr. McAleenan, from rooting out products
made with forced labor, to preventing trade in illegally-harvested
timber and wildlife, to protecting the health and safety of consumers
who use imported products. I look forward to working with him to make
sure that CBP is effectively enforcing our trade laws on those issues
and more.
The second topic I want to address this morning deals with searches
at the border. There has been an onslaught of reports this year about
Americans being stopped at the border and forced to unlock their
personal electronic devices for inspections that clearly invade
personal privacy.
Senator Paul and I introduced a bill in April called the Protecting
Data at the Border Act. Our bill requires law enforcement to get a
warrant before searching a device at the border, and it comes with
strong protections to let Americans know when and how they consent to
having their devices searched.
In my judgment, this ought to be a common-sense step, especially
since the Supreme Court has already ruled that law enforcement needs a
warrant to search a phone after an arrest.
Bottom line, our constitutional rights do not disappear at the
border. So I'm looking forward to addressing this issue in questions.
As I wrap up, let me again thank you, Mr. McAleenan, for joining
the Committee today and being willing to serve. You are a strong
nominee and I look forward to hearing your plans for the agency if
confirmed.
______
Communications
----------
Letter From Norman W. Harris III
October 19, 2017
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
Re: Hearing to consider the nomination of Kevin K. McAleenan, of
Hawaii, to be Commissioner of United States Customs and Border
Protection, Department of Homeland Security
To the Honorable Senate Committee on Finance,
As a licensed Customs house broker, serial number 11389, since 1989 I
support the nomination of Kevin K. McAleenan to be Commissioner of
United Customs and Border Protection, Department of Homeland Security.
Acting Commissioner McAleenan has worked well with the trade community
for the facilitation of efficient goods movement. He is a skilled
communicator and a strong leader.
I had the opportunity as Education Chair for the Los Angeles Customs
Brokers and Freight Forwarders Association (LACBFFA) to work directly
with Mr. McAleenan in his capacity of Area Port Director in Los Angeles
arranging for workshops that benefitted the local trade community.
Respectfully,
Norman W. Harris III
______
Los Angeles Customs Brokers and Freight Forwarders Association, Inc.
320 Pine Avenue, #1050
Long Beach, CA 90802
Phone: 714-316-5270
Fax: 714-632-5405
Email: info@lacbffa.org
Website: www.lacbffa.org
October 19, 2017
Senator Orrin Hatch Senator Ron Wyden
Chairman Ranking Member
U.S. Senate U.S. Senate
Committee on Finance Committee on Finance
219 Dirksen Senate Office Building 219 Dirksen Senate Office Building
Washington, DC 20510 Washington, DC 20510
Dear Chairman Hatch and Ranking Member Wyden:
The Los Angeles Customs Brokers and Freight Forwarders Association,
Inc. is the premier organization in southern California for
international trade and U.S. Customs issues, and its more than 300
company members, employing over 5,000 individuals, file more than 95%
of all import entries in the Los Angeles Customs District. We have had
the pleasure of working with Acting Commissioner McAleenan since his
days with Customs and Border Protection (CSP or Customs) in Los
Angeles. We wholeheartedly support Mr. McAleenan as the next
Commissioner of CBP.
Over the last several years, the responsibilities of CBP have become
ever more complex and challenging, and so having someone lead the
agency who starts out being intimately familiar with its personnel and
functions is a major plus for the agency, but equally so for the trade.
Mr. McAleenan long ago displayed his capabilities to prudently balance
the competing interests and efforts of CBP whether related to the
efficient functioning of the agency or its efforts related to national
security and trade facilitation, all the while keeping in mind the
importance of the country's economic prosperity.
The roll-out of the Automated Commercial System has made great strides
towards completion, while under Mr. McAleenan's leadership, CBP has
shown it can work successfully with some 40+ agencies and address both
import and export industry needs. CBP is also close to completion of
its implementation of the Centers for Excellence and Expertise, while
still focusing on the latest threats, whether arising from terrorism,
or related to national security, the current opioid crisis or the more
traditional commercial considerations such as the de minimis dilemma,
free trade agreement and other more traditional areas of trade
compliance, such as revenue collection and antidumping/countervailing
duty cases.
Taken together, these and Mr. McAleenan's other accomplishments, and
those of the agency, make it clear he is the right choice for
Commissioner of Customs and Border Protection, and we strongly support
his nomination.
Respectfully,
Wayne Wagner
President, Los Angeles Customs Brokers and Freight Forwarders, Inc.
______
United States Council for International Business (USCIB)
1212 Avenue of the Americas
New York, NY 10036-1689
212-354-4480 tel
212-575-0327 fax
www.uscib.org
November 2, 2017
STATEMENT FOR THE RECORD
The United States Council for International Business (USCIB) was
pleased with the recent nomination of Customs and Border Protection's
(CBP) Kevin K. McAleenan as Commissioner of CBP, and the recent
announcement of his confirmation hearing. We believe that Mr. McAleenan
is the answer for skilled, professional, knowledgeable, and continued
strong leadership of CBP. Under his leadership, CBP has seen increased
visibility within the Administration. He is the answer to consistency
in approach and forward movement of dealing with the challenges and
complexities of trading environment in the United States. USCIB is
strongly supportive of McAleenan and his prompt confirmation.
Acting Commissioner since January 20, 2017, Mr. McAleenan has a
proven track record of leading the largest law enforcement agency,
charged with enforcing more than 500 regulations for 45 plus government
agencies. Moreover, Mr. McAleenan is the first nominee selected from
within the agency ranks in recent memory, and brings with him well over
a decade of experience within CBP, having served in such leadership
roles as: Area Port Director of Los Angeles International Airport,
Acting Assistant Commissioner of CBP's Office of Field Operations,
Deputy Commissioner, and most recently as Acting Commissioner. In 2005
and 2015, respectively, Mr. McAleenan received a Service to America
Medal, Call to Service Award, and a Presidential Rank Award. Since
2006, Mr. McAleenan has been a member of the U.S. Government's Senior
Executive Service. Mr. McAleenan is well suited for the role as CBP
Commissioner and is no stranger to the challenges and complexities of
directing CBP core missions of counterterrorism, border security, and
trade enforcement, while facilitating both the flow of trade and travel
of people.
Mr. McAleenan's nomination demonstrates clear Administration
support for the well-oiled CBP leadership team that is in place. It is
the consistency of a leadership team along with Mr. McAleenan's proven
knowledge, hands-on experience and previous leadership roles within CBP
and one of its legacy agencies that make him uniquely qualified to
successfully serve in a permanent capacity, as CBP Commissioner.
During the USCIB leadership meeting with the Acting Commissioner
earlier this year, Mr. McAleenan, was illustrative of his
professionalism, understanding of issues being faced by members of the
trade community, as well as exemplar of his willingness to engage
stakeholders. USCIB Customs and Trade Facilitation Chair, Jerry Cook,
Hanes Brands; said, ``We believe that the Acting Director's background
in facilitation will be good for the trade and CBP. Kevin McAleenan is
the right man for the job,'' said USCIB President and CEO Peter M.
Robinson. ``As Acting Commissioner, he has demonstrated strong, skilled
and knowledgeable direction to CBP. Under his leadership, the agency is
positioned to effectively move forward in addressing the challenges and
complexities of the trading environment in the United States.''
Among other topics, we encourage the Commissioner, if confirmed, to
continue to focus on: securing a meaningful Border Interagency
Executive Council (BIEC) and BIEC External Engagement Committee (EEC)
mechanism; effectively completing implementation of final core ACE
(U.S. Single Window) deployment; improving the import process for e-
commerce from a trade facilitation and enforcement perspective in a
manner that facilitates legitimate trade; partnering with industry on
forced labor concerns; implementing all Trade Facilitation and Trade
Enforcement Act (TFTEA) requirements; tackling industry concerns
related to customs valuation; and working towards the fulfillment of
the Centers of Excellence and Expertise (CEEs).
The United States Council for International Business (USCIB)
promotes open markets, competitiveness and innovation, sustainable
development and corporate responsibility, supported by international
engagement and regulatory coherence. Its members include U.S. based
global companies and professional services firms from every sector of
our economy, with operations in every region of the world. With a
unique global network--encompassing the International Chamber of
Commerce (ICC), the International Organization of Employers (IOE), and
the Business and Industry Advisory Committee to the OECD (BIAC)--USCIB
provides business views to policy makers and regulatory authorities
worldwide, and works to facilitate international trade and investment.
USCIB also provides a range of business services, including ATA
Carnet trade services for temporary imports and exports, to facilitate
overseas trade and investment in partnership with CBP.
With our unique perspective, we look forward to continuing to work
with and help Customs meet its goals and objectives and stand ready to
continue to serve as a relevant CBP stakeholder, and provide both
subject matter expertise and practitioner support on topics of interest
to Customs and to our membership. Again, we urge quick action and a
swift vote of support in the U.S. Senate to confirm Kevin K. McAleenan
as Commissioner of U.S. Customs and Border Protection (CBP). We believe
he is the right choice to lead the agency.
In closing, we thank Mr. McAleenan for his dedication to CBP and
willingness to serve. With the passage of TFTEA and the increased
importance of strong Customs leadership, we trust that under Mr.
McAleenan CBP will continue to partner with industry and relevant
stakeholders to address the complexities and challenges of today's
trade environment. In the words of Jerry Cook, ``under Kevin's
leadership, CBP will get its swagger back.''
Sincerely,
United States Council for International Business
[all]