H.R. 3846 — what changed

“411. Establishment of United States Customs and Border Protection; Commissioner, Deputy Commissioner, and operational offices

“(a) In general—There is established in the Department an agency to be known as United States Customs and Border Protection.

“(b) Commissioner of United States Customs and Border Protection—There shall be at the head of United States Customs and Border Protection a Commissioner of United States Customs and Border Protection (in this section referred to as the “Commissioner”), who shall be appointed by the President, by and with the advice and consent of the Senate.

“(c) Duties—The Commissioner shall—

“(1) ensure the interdiction of persons and goods illegally entering or exiting the United States;

“(2) facilitate and expedite the flow of legitimate travelers and trade;

changed “(3) detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, criminals, and other persons who may undermine the security of the United States, in cases in which such persons are entering, or have recently entered, the United States;

“(4) safeguard the borders of the United States to protect against the entry of dangerous goods;

“(5) oversee the functions of the Office of International Trade established under section 402 of the Security and Accountability for Every Port Act of 2006 (19 U.S.C. 2072; Public Law 109–347);

“(6) enforce and administer all customs laws of the United States, including the Tariff Act of 1930;

changed “(7) enforce and administer all immigration laws, as such term is defined in paragraph (17) of section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)), as necessary for the inspection, processing, and admission of persons who seek to enter or depart the United States, and as necessary to ensure the detection, interdiction, removal, departure from the United States, short-term detention, and transfer of persons unlawfully entering, or who have recently unlawfully entered, the United States, in coordination with United States Immigration and Customs Enforcement and United States Citizenship and Immigration Services;

“(8) develop and implement screening and targeting capabilities, including the screening, reviewing, identifying, and prioritizing of passengers and cargo across all international modes of transportation, both inbound and outbound;

“(9) enforce and administer the laws relating to agricultural import and entry inspection referred to in section 421;

“(10) in coordination with the Secretary, deploy technology to collect the data necessary for the Secretary to administer the biometric entry and exit data system pursuant to section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1365b);

changed “(11) in In coordination with the Under Secretary for Management of the Department, ensure United States Customs and Border Protection complies with Federal law, the Federal Acquisition Regulation, and the Department’s acquisition management directives for major acquisition programs of United States Customs and Border Protection;

“(12) enforce and administer—

“(A) the Container Security Initiative program under section 205 of the Security and Accountability for Every Port Act of 2006 (6 U.S.C. 945; Public Law 109–347); and

“(B) the Customs-Trade Partnership Against Terrorism program under sections 211 through 223 of such Act (6 U.S.C. 961-973);

“(13) establish the standard operating procedures described in subsection (k);

“(14) carry out the training required under subsection (l); and

changed “(15) carry out the other duties and powers prescribed by law or delegated by the Secretary.

“(d) Deputy Commissioner—There shall be in United States Customs and Border Protection a Deputy Commissioner who shall assist the Commissioner in the management of United States Customs and Border Protection.

“(e) United States Border Patrol

“(1) In general—There is established in United States Customs and Border Protection the United States Border Patrol.

“(2) Chief—There shall be at the head of the United States Border Patrol a Chief, who shall be a uniformed law enforcement officer chosen from the ranks of the United States Border Patrol and who shall report to the Commissioner.

“(3) Duties—The United States Border Patrol shall—

“(A) serve as the law enforcement office of United States Customs and Border Protection with primary responsibility for interdicting persons attempting to illegally enter or exit the United States or goods being illegally imported to or exported from the United States at a place other than a designated port of entry;

“(B) deter and prevent illegal entry of terrorists, terrorist weapons, persons, and contraband; and

“(C) carry out other duties and powers prescribed by the Commissioner.

“(f) Office of Air and Marine Operations

“(1) In general—There is established in United States Customs and Border Protection an Office of Air and Marine Operations.

“(2) Assistant commissioner—There shall be at the head of the Office of Air and Marine Operations an Assistant Commissioner, who shall report to the Commissioner.

“(3) Duties—The Office of Air and Marine Operations shall—

“(A) serve as the law enforcement office within United States Customs and Border Protection with primary responsibility to detect, interdict, and prevent acts of terrorism and the unlawful movement of people, illicit drugs, and other contraband across the borders of the United States in the air and maritime environment;

“(B) oversee the acquisition, maintenance, and operational use of United States Customs and Border Protection integrated air and marine forces;

“(C) provide aviation and marine support for other Federal, State, and local law enforcement agency needs, as appropriate; and

“(D) carry out other duties and powers prescribed by the Commissioner.

“(g) Office of Field Operations

“(1) In general—There is established in United States Customs and Border Protection an Office of Field Operations.

“(2) Assistant commissioner—There shall be at the head of the Office of Field Operations an Assistant Commissioner, who shall report to the Commissioner.

“(3) Duties—The Office of Field Operations shall coordinate the enforcement activities of United States Customs and Border Protection at United States air, land, and sea ports of entry to—

“(A) deter and prevent terrorists and terrorist weapons from entering the United States at such ports of entry;

“(B) conduct inspections at such ports of entry to safeguard the United States from terrorism and illegal entry of persons;

“(C) prevent illicit drugs, agricultural pests, and contraband from entering the United States;

“(D) in coordination with the Commissioner, facilitate and expedite the flow of legitimate travelers and trade;

“(E) administer the National Targeting Center established under paragraph (4); and

“(F) carry out other duties and powers prescribed by the Commissioner.

“(4) National Targeting Center

“(A) In general—There is established in the Office of Field Operations a National Targeting Center.

“(B) Executive Director—There shall be at the head of the National Targeting Center an Executive Director, who shall report to the Assistant Commissioner of the Office of Field Operations.

“(C) Duties—The National Targeting Center shall—

“(i) serve as the primary forum for targeting operations within United States Customs and Border Protection to collect and analyze traveler and cargo information in advance of arrival in the United States;

“(ii) identify, review, and target travelers and cargo for examination;

“(iii) coordinate the examination of entry and exit of travelers and cargo; and

“(iv) carry out other duties and powers prescribed by the Assistant Commissioner.

“(5) Annual report on staffing—Not later than 30 days after the date of the enactment of this section and annually thereafter, the Assistant Commissioner shall submit to the appropriate congressional committees a report on the staffing model for the Office of Field Operations, including information on how many supervisors, front-line United States Customs and Border Protection officers, and support personnel are assigned to each Field Office and port of entry.

“(h) Office of Intelligence and Investigative Liaison

“(1) In general—There is established in United States Customs and Border Protection an Office of Intelligence and Investigative Liaison.

“(2) Assistant Commissioner—There shall be at the head of the Office of Intelligence and Investigative Liaison an Assistant Commissioner, who shall report to the Commissioner.

“(3) Duties—The Office of Intelligence and Investigative Liaison shall—

“(A) develop, provide, coordinate, and implement intelligence capabilities into a cohesive intelligence enterprise to support the execution of the United States Customs and Border Protection duties and responsibilities;

“(B) collect and analyze advance traveler and cargo information;

“(C) establish, in coordination with the Chief Intelligence Officer of the Department, as appropriate, intelligence-sharing relationships with Federal, State, local, and tribal agencies and intelligence agencies; and

“(D) carry out other duties and powers prescribed by the Commissioner.

“(i) Office of International Affairs

“(1) In general—There is established in United States Customs and Border Protection an Office of International Affairs.

“(2) Assistant Commissioner—There shall be at the head of the Office of International Affairs an Assistant Commissioner, who shall report to the Commissioner.

“(3) Duties—The Office of International Affairs, in collaboration with the Office of International Affairs of the Department, shall—

“(A) coordinate and support United States Customs and Border Protection’s foreign initiatives, policies, programs, and activities;

“(B) coordinate and support United States Customs and Border Protection’s personnel stationed abroad;

“(C) maintain partnerships and information sharing agreements and arrangements with foreign governments, international organizations, and United States agencies in support of United States Customs and Border Protection duties and responsibilities;

“(D) provide necessary capacity building, training, and assistance to foreign border control agencies to strengthen global supply chain and travel security;

“(E) coordinate mission support services to sustain United States Customs and Border Protection’s global activities;

“(F) coordinate, in collaboration with the Office of Policy of the Department, as appropriate, United States Customs and Border Protection’s engagement in international negotiations; and

“(G) carry out other duties and powers prescribed by the Commissioner.

“(j) Office of Internal Affairs

“(1) In general—There is established in United States Customs and Border Protection an Office of Internal Affairs.

“(2) Assistant Commissioner—There shall be at the head of the Office of Internal Affairs an Assistant Commissioner, who shall report to the Commissioner.

“(3) Duties—The Office of Internal Affairs shall—

“(A) investigate criminal and administrative matters and misconduct by officers, agents, and other employees of United States Customs and Border Protection;

“(B) perform investigations of United States Customs and Border Protection applicants and periodic reinvestigations (in accordance with section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341; Public Law 108–458)) of officers, agents, and other employees of United States Custom and Border Protection, including investigations to determine suitability for employment and eligibility for access to classified information;

“(C) conduct polygraph examinations in accordance with section 3(1) of the Anti-Border Corruption Act of 2010 (Public Law 111–376);

“(D) perform inspections of United States Customs and Border Protection programs, operations, and offices;

“(E) conduct risk-based covert testing of United States Customs and Border Protection operations, including for nuclear and radiological risks;

“(F) manage integrity of United States Customs and Border Protection counter-intelligence operations, including conduct of counter-intelligence investigations;

“(G) conduct research and analysis regarding misconduct of officers, agents, and other employees of United States Customs and Border Protection; and

“(H) carry out other duties and powers prescribed by the Commissioner.

“(k) Standard operating procedures

“(1) In general—The Commissioner shall establish—

“(A) standard operating procedures for searching, reviewing, retaining, and sharing information contained in communication, electronic, or digital devices encountered by United States Customs and Border Protection personnel at United States ports of entry;

“(B) standard use of force procedures officers and agents of United States Customs and Border Protection may employ in the execution of their duties, including the use of deadly force and procedures for deescalating confrontations, where possible;

“(C) a uniform, standardized, and publically-available procedure for processing and investigating complaints against officers, agents, and employees of United States Customs and Border Protection for violations of professional conduct, including the timely disposition of complaints and a written notification to the complainant of the status or outcome, as appropriate, of the related investigation, in accordance with section 552a of title 5, United States Code (commonly referred to as the “Privacy Act” or the “Privacy Act of 1974”);

“(D) an internal, uniform reporting mechanism regarding incidents involving the use of deadly force by an officer or agent of United States Customs and Border Protection, including an evaluation of the degree to which the procedures required under subparagraph (B) were followed; and

“(E) standard operating procedures, acting through the Assistant Commissioner for Air and Marine Operations and in coordination with the Office of Civil Rights and Civil Liberties and the Office of Privacy of the Department, to provide command, control, communication, surveillance, and reconnaissance assistance through the use of unmanned aerial systems, including the establishment of—

“(i) a process for other Federal, State, and local law enforcement agencies to submit mission requests;

“(ii) a formal procedure to determine whether to approve or deny such a mission request;

“(iii) a formal procedure to determine how such mission requests are prioritized and coordinated;

“(iv) a process for establishing agreements with other Federal, State, and local law enforcement agencies regarding reimbursement for such mission costs; and

“(v) a process regarding the protection and privacy of data and images collected by United States Customs and Border Protection through the use of unmanned aerial systems.

“(2) Requirements regarding certain notifications—The standard operating procedures established pursuant to subparagraph (A) of paragraph (1) shall require—

“(A) in the case of a search of information conducted on an electronic device by United States Customs and Border Protection personnel, the Commissioner to notify the individual subject to such search of the purpose and authority for such search, and how such individual may obtain information on reporting concerns about such search; and

“(B) in the case of information collected by United States Customs and Border Protection through a search of an electronic device, if such information is transmitted to another Federal agency for subject matter assistance, translation, or decryption, the Commissioner to notify the individual subject to such search of such transmission.

“(3) Exceptions

“(A) In general—The Commissioner may withhold the notifications required under paragraphs (1)(C) and (2) if the Commissioner determines that such notifications would impair national security, law enforcement, or other operational interests.

“(B) Terrorist watch lists

“(i) Searches—If the individual subject to search of an electronic device pursuant to subparagraph (A) of paragraph (1) is included on a Government-operated or Government-maintained terrorist watch list, the notifications required under paragraph (2) shall not apply.

“(ii) Complaints—If the complainant using the process established under subparagraph (C) of paragraph (1) is included on a Government-operated or Government-maintained terrorist watch list, the notification required under such subparagraph shall not apply.

“(4) Update and review—The Commissioner shall review and update every three years the standard operating procedures required under this subsection.

“(5) Audits—The Inspector General of the Department of Homeland Security shall develop and annually administer an auditing mechanism to review whether searches of electronic devices at or between United States ports of entry are being conducted in conformity with the standard operating procedures required under subparagraph (A) of paragraph (1). Such audits shall be submitted to the appropriate congressional committees and shall include the following:

“(A) A description of the activities of officers and agents of United States Customs and Border Protection with respect to such searches.

“(B) The number of such searches.

“(C) The number of instances in which information contained in such devices that were subjected to such searches was retained, copied, shared, or entered in an electronic database.

“(D) The number of such devices detained as the result of such searches.

“(E) The number of instances in which information collected from such device was subjected to such searches was transmitted to a another Federal agency, including whether such transmission resulted in a prosecution or conviction.

“(6) Requirements regarding other notifications—The standard operating procedures established pursuant to subparagraph (B) of paragraph (1) shall require—

“(A) in the case of an incident of the use of deadly force by United States Customs and Border Protection personnel, the Commissioner to notify the appropriate congressional committees; and

“(B) the Commissioner to provide to such committees a copy of the evaluation pursuant to subparagraph (D) of such paragraph not later than 30 days after completion of such evaluation.

changed “(7) “(6) Report on unmanned aerial systems—The Commissioner shall submit to the appropriate congressional committees an annual report that reviews whether the use of unmanned aerial systems are being conducted in conformity with the standard operating procedures required under subparagraph (E) of paragraph (1). Such reports—

“(A) shall be submitted with the President’s annual budget;

“(B) may be submitted in classified form if the Commissioner determines that such is appropriate, and

“(C) shall include—

“(i) a detailed description of how, where, and for how long data and images collected through the use of unmanned aerial systems by United States Customs and Border Protection is collected and stored; and

“(ii) a list of Federal, State, and local law enforcement agencies that submitted mission requests in the previous year and the disposition of such requests.

“(l) Training

“(1) In general—The Commissioner shall require all agents and officers of United States Customs and Border Protection to participate in a specified amount of continuing education (to be determined by the Commissioner) to maintain an understanding of Federal legal rulings, court decisions, and departmental policies, procedures, and guidelines.

“(2) Ensuring training—Not later than 90 days after the date of the enactment of this section, the Commissioner shall develop a database system that identifies for each United States Customs and Border Protection officer or agent, by port of entry or station—

“(A) for each training course, the average time allocated during on-duty hours within which training must be completed;

“(B) for each training course offered, the duration of training and the average amount of time an officer must be absent from work to complete such training course; and

“(C) certification of each training course by a supervising officer that the officer is able to carry out the function for which the training was provided, and if training has been postponed, the basis for postponing such training.

“(3) Use of data—The Commissioner shall use the information developed under paragraph (2) to—

“(A) develop training requirements for United States Customs and Border Protection officers to ensure that such officers have sufficient training to conduct primary and secondary inspections at Untied States ports of entry; and

“(B) measure progress toward achieving the training requirements referred to in subparagraph (A).

“(m) Short term detention standards

“(1) Access to food and water—The Commissioner shall make every effort to ensure that adequate access to food and water is provided to an individual apprehended and detained by a United States Border Patrol agent between a United States port of entry as soon as practicable following the time of such apprehension or during subsequent short term detention.

“(2) Access to information on detainee rights at border patrol processing centers

“(A) In general—The Commissioner shall ensure that an individual apprehended by a United States Border Patrol agent is provided with information concerning such individual’s rights, including the right to contact a representative of such individual’s government for purposes of United States treaty obligations.

“(B) Form—The information referred to in subparagraph (A) may be provided either verbally or in writing, and shall be posted in the detention holding cell in which such individual is being held. The information shall be provided in a language understandable to such individual.

“(3) Daytime repatriation—When practicable, repatriations shall be limited to daylight hours and avoid locations that are determined to have high indices of crime and violence.

“(4) Short term detention defined—In this subsection, the term “short term detention” means detention in a United States Border Patrol processing center for 72 hours or less, before repatriation to a country of nationality or last habitual residence.

“(5) Report on procurement process and standards—Not later than 180 days after the date of the enactment of this section, the Comptroller General of the United States shall submit to the appropriate congressional committees a report on the procurement process and standards of entities with which United States Customs and Border Protection has contracts for the transportation and detention of individuals apprehended by agents or officers of United States Customs and Border Protection. Such report should also consider the operational efficiency of contracting the transportation and detention of such individuals.

“(6) Report on inspections of short-term custody facilities—The Commissioner shall—

“(A) annually inspect all facilities utilized for short term detention; and

“(B) make publically available information collected pursuant to such inspections, including information regarding the requirements under paragraphs (1) and (2) and, where appropriate, issue recommendations to improve the conditions of such facilities.

“(n) Wait times transparency

“(1) In general—The Commissioner shall—

“(A) publish live wait times at the 20 United States airports that support the highest volume of international travel (as determined by available Federal flight data);

“(B) make information about such wait times available to the public in real time through the United States Customs and Border Protection Web site;

“(C) submit to the appropriate congressional committees quarterly reports that include compilations of all such wait times and a ranking of such United States airports by wait times; and

“(D) provide adequate staffing at the United States Customs and Border Protection information center to ensure timely access for travelers attempting to submit comments or speak with a representative about their entry experiences.

changed “(2) Calculation—The wait times referred to in paragraph (1)(A) shall be determined by calculating the time elapsed between an individual’s entry into the United States Customs and Border Protection inspection area and such individual’s clearance by a United States Customs and Border Protection officerofficer.

“(o) Other authorities

“(1) In general—The Secretary may establish such other offices or Assistant Commissioners (or other similar officers or officials) as the Secretary determines necessary to carry out the missions, duties, functions, and authorities of United States Customs and Border Protection.

“(2) Notification—If the Secretary exercises the authority provided pursuant to paragraph (1), the Secretary shall notify the appropriate congressional committees not later than 30 days before exercising such authority.

“(p) Other Federal agencies—Nothing in this section may be construed as affecting in any manner the existing authority of any other Federal agency, including the Transportation Security Administration with respect to the duties of United States Customs and Border Protection described in subsection (c).”

“424. Preservation of Transportation Security Administration as a distinct entity

“Notwithstanding any other provision of this Act, the Transportation Security Administration shall be maintained as a distinct entity within the Department.”

“(a) Establishment—There is established in the Department an Office for Domestic Preparedness.”

“444. Employee discipline

“Notwithstanding any other provision of law, the Secretary may impose disciplinary action on any employee of United States Immigration and Customs Enforcement and United States Customs and Border Protection who willfully deceives Congress or agency leadership on any matter.”