Title II — Border Security and Trade Facilitation

S. 2611 · 113th Congress · Jul 15, 2014 · Lineage

II Border Security and Trade Facilitation

Sec. 201 Definitions

In this title:

(1)

Appropriate congressional committees— The term appropriate congressional committees means—

(A)

the Committee on Homeland Security and Governmental Affairs of the Senate; and

(B)

the Committee on Homeland Security of the House of Representatives.

(2)

Cocaine removal effectiveness rate— The term cocaine removal effectiveness rate means the percentage that results from dividing the amount of cocaine removed by the Department of Homeland Security’s maritime security components inside or outside a transit zone, as the case may be, by the total documented cocaine flow rate as contained in Federal drug databases.

(3)

Consequence delivery system— The term Consequence Delivery System means the series of consequences applied to persons illegally entering the United States by the Border Patrol to prevent illegal border crossing recidivism.

(4)

Got away— The term got away means an illegal border crosser who, after making an illegal entry into the United States, is not turned back or apprehended.

(5)

High traffic areas— The term high traffic areas means sectors along the northern and southern borders of the United States that are within the responsibility of the Border Patrol that have the most illicit cross-border activity, informed through situational awareness.

(6)

Illegal border crossing effectiveness rate— The term illegal border crossing effectiveness rate means the percentage that results from dividing the number of apprehensions and turn backs by the number of apprehensions, turn backs, and got aways. The data used by the Secretary of Homeland Security to determine such rate shall be collected and reported in a consistent and standardized manner across all Border Patrol sectors.

(7)

Major violator— The term major violator means a person or entity that has engaged in serious criminal activities at any land, air, or sea port of entry, including possession of illicit drugs, smuggling of prohibited products, human smuggling, weapons possession, use of fraudulent United States documents, or other offenses serious enough to result in arrest.

(8)

Operational control— The term operational control means a condition in which there is a not lower than 90 percent illegal border crossing effectiveness rate, informed by situational awareness, and a significant reduction in the movement of illicit drugs and other contraband through such areas is being achieved.

(9)

Situational awareness— The term situational awareness means knowledge and an understanding of current illicit cross-border activity, including cross-border threats and trends concerning illicit trafficking and unlawful crossings along the international borders of the United States and in the maritime environment, and the ability to forecast future shifts in such threats and trends.

(10)

Transit zone— The term transit zone means the sea corridors of the western Atlantic Ocean, the Gulf of Mexico, the Caribbean Sea, and the eastern Pacific Ocean through which undocumented migrants and illicit drugs transit, either directly or indirectly, to the United States.

(11)

Turn back— The term turn back means an illegal border crosser who, after making an illegal entry into the United States, returns to the country from which such crosser entered.

Sec. 202 Border security results

(a)

In general— Not later than 90 days after the date of the enactment of this Act, every 180 days thereafter until the Comptroller General of the United States reports on the results of the review described in section 203(k)(2)(B), and annually after the date of such report, the Secretary of Homeland Security shall submit a report to the appropriate congressional committees and the Government Accountability Office that—

(1)

assesses and describes the state of situational awareness and operational control; and

(2)

identifies the high traffic areas and the illegal border crossing effectiveness rate for each sector along the northern and southern borders of the United States that are within the responsibility of the Border Patrol.

(b)

GAO report— Not later than 90 days after receiving the initial report required under subsection (a), the Comptroller General of the United States shall submit a report to the appropriate congressional committees regarding the verification of the data and methodology used to determine high traffic areas and the illegal border crossing effectiveness rate.

Sec. 203 Strategy to achieve situational awareness and operational control of the border

(a)

Strategy To secure the border— Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit, to the appropriate congressional committees, a comprehensive strategy for—

(1)

gaining and maintaining situational awareness and operational control of high traffic areas not later than 2 years after the date of the submission of the implementation plan required under subsection (c); and

(2)

gaining and maintaining operational control along the Southwest border of the United States not later than 5 years after such date of submission.

(b)

Contents of strategy— The strategy required under subsection (a) shall include a consideration of the following:

(1)

An assessment of principal border security threats, including threats relating to the smuggling and trafficking of humans, weapons, and illicit drugs.

(2)

Efforts to analyze and disseminate border security and border threat information between the border security components of the Department of Homeland Security and with other appropriate Federal departments and agencies with missions associated with the border.

(3)

Efforts to increase situational awareness, in accordance with privacy, civil liberties, and civil rights protections, including—

(A)

surveillance capabilities developed or utilized by the Department of Defense, including any technology determined to be excess by the Department of Defense; and

(B)

use of manned aircraft and unmanned aerial systems, including camera and sensor technology deployed on such assets.

(4)

Efforts to detect and prevent terrorists and instruments of terrorism from entering the United States.

(5)

Efforts to ensure that any new border security technology can be operationally integrated with existing technologies in use by the Department of Homeland Security.

(6)

An assessment of existing efforts and technologies used for border security and the effect of such efforts and technologies on civil rights, private property rights, privacy rights, and civil liberties.

(7)

Technology required to maintain, support, and enhance security and facilitate trade at ports of entry, including nonintrusive detection equipment, radiation detection equipment, biometric technology, surveillance systems, and other sensors and technology that the Secretary of Homeland Security determines to be necessary.

(8)

Operational coordination of the border security components of the Department of Homeland Security.

(9)

Lessons learned from Operation Jumpstart and Operation Phalanx.

(10)

Cooperative agreements and information sharing with State, local, tribal, territorial, and other Federal law enforcement agencies that have jurisdiction on the northern or southern borders, or in the maritime environment.

(11)

Border security information received from consultation with—

(A)

State, local, tribal, and Federal law enforcement agencies that have jurisdiction on the northern or southern border, or in the maritime environment; and

(B)

border community stakeholders (including through public meetings with such stakeholders), including representatives from border agricultural and ranching organizations and representatives from business and civic organizations along the northern or southern border.

(12)

Agreements with foreign governments that support the border security efforts of the United States, including coordinated installation of standardized land border inspection technology, such as license plate readers and RFID readers.

(13)

Staffing requirements for all border security functions.

(14)

A prioritized list of research and development objectives to enhance the security of the international land and maritime borders of the United States.

(15)

An assessment of training programs, including training programs regarding—

(A)

identifying and detecting fraudulent documents;

(B)

protecting the civil, constitutional, human, and privacy rights of individuals;

(C)

understanding the scope of enforcement authorities and the use of force policies;

(D)

screening, identifying, and addressing vulnerable populations, such as children and victims of human trafficking; and

(E)

social and cultural sensitivity toward border communities.

(16)

Local crime indices of municipalities and counties along the southern border.

(17)

An assessment of how border security operations affect crossing times.

(18)

Resources and other measures that are necessary to achieve a 50-percent reduction in the average wait times of commercial and passenger vehicles at international land ports of entry along the southern border and the northern border.

(19)

Metrics required under subsections (e), (f), and (g).

(c)

Implementation plan—

(1)

In general— Not later than 90 days after the submission of the strategy required under subsection (a), the Secretary of Homeland Security shall submit, to the appropriate congressional committees and to the Government Accountability Office, an implementation plan for each of the border security components of the Department of Homeland Security to carry out such strategy.

(2)

Contents of plan— The implementation plan required under paragraph (1) shall—

(A)

specify what protections will be put in place to ensure that staffing and resources necessary for the maintenance of operations at ports of entry are not diverted to the detriment of such operations in favor of operations between ports of entry; and

(B)

include—

(i)

an integrated master schedule and cost estimate, including lifecycle costs, for the activities contained in such implementation plan; and

(ii)

a comprehensive border security technology plan to improve surveillance capabilities that includes—

(I)

a documented justification and rationale for technology choices;

(II)

deployment locations;

(III)

fixed versus mobile assets;

(IV)

a timetable for procurement and deployment;

(V)

estimates of operation and maintenance costs;

(VI)

an identification of any impediments to the deployment of such technologies; and

(VII)

estimates of the relative cost effectiveness of various border security strategies and operations, including—

(aa)

the deployment of personnel and technology; and

(bb)

the construction of new physical and virtual barriers.

(3)

Government accountability office review— Not later than 90 days after receiving the implementation plan in accordance with paragraph (1), the Comptroller General of the United States shall submit an assessment of such plan to the appropriate congressional committees a report on such plan.

(d)

Periodic updates— Not later than 180 days after the submission of each Quadrennial Homeland Security Review required under section 707 of the Homeland Security Act of 2002 (6 U.S.C. 347) beginning with the first such Review that is due after the implementation plan is submitted under subsection (c), the Secretary of Homeland Security shall submit, to the appropriate congressional committees, an updated—

(1)

strategy under subsection (a); and

(2)

implementation plan under subsection (c).

(e)

Metrics for securing the border between ports of entry— Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall implement metrics, informed by situational awareness, to measure the effectiveness of security between ports of entry, including—

(1)

an illegal border crossing effectiveness rate, informed by situational awareness;

(2)

an illicit drugs seizure rate, which measures the amount and type of illicit drugs seized by the Border Patrol in any fiscal year compared to an average of the amount and type of illicit drugs seized by the Border Patrol for the immediately preceding 5 fiscal years;

(3)

a cocaine seizure effectiveness rate, which shall be measured by calculating the percentage of the total documented cocaine flow rate (as contained in Federal drug databases) that is seized by the Border Patrol;

(4)

estimates, using alternative methodologies, including recidivism data, survey data, known-flow data, and technologically measured data, of—

(A)

total attempted illegal border crossings;

(B)

total deaths and injuries resulting from such attempted illegal border crossings;

(C)

the rate of apprehension of attempted illegal border crossers; and

(D)

the inflow into the United States of illegal border crossers who evade apprehension; and

(5)

estimates of the impact of the Border Patrol’s Consequence Delivery System on the rate of recidivism of illegal border crossers.

(f)

Metrics for securing the border at ports of entry—

(1)

In general— Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall implement metrics, informed by situational awareness, to measure the effectiveness of security at ports of entry, which shall include—

(A)

an inadmissible border crossing rate, which measures the number of known inadmissible border crossers who are apprehended, excluding those border crossers who voluntarily withdraw their applications for admission, against the total estimated number of inadmissible border crossers U.S. Customs and Border Protection fails to apprehend;

(B)

an illicit drugs seizure rate, which measures the amount and type of illicit drugs seized by U.S. Customs and Border Protection in any fiscal year compared to an average of the amount and type of illicit drugs seized by U.S. Customs and Border Protection for the immediately preceding 5 fiscal years;

(C)

(D)

estimates, using alternative methodologies, including survey data and randomized secondary screening data, of—

(i)

total attempted inadmissible border crossers;

(ii)

the rate of apprehension of attempted inadmissible border crossers; and

(iii)

the inflow into the United States of inadmissible border crossers who evade apprehension;

(E)

the number of infractions related to personnel and cargo committed by major violators who are apprehended by U.S. Customs and Border Protection at ports of entry, and the estimated number of such infractions committed by major violators who are not so apprehended; and

(F)

a measurement of how border security operations affect crossing times.

(2)

Covert testing— The Inspector General of the Department of Homeland Security shall carry out covert testing at ports of entry and submit to the Secretary of Homeland Security and the appropriate congressional committees a report that contains the results of such testing. The Secretary shall use such results to inform activities under this subsection.

(g)

Metrics for securing the maritime border— Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall implement metrics, informed by situational awareness, to measure the effectiveness of security in the maritime environment, which shall include—

(1)

an estimate of the total number of undocumented migrants the Department of Homeland Security’s maritime security components fail to interdict;

(2)

an undocumented migrant interdiction rate, which measures the number of undocumented migrants interdicted against the total estimated number of undocumented migrants the Department of Homeland Security’s maritime security components fail to interdict;

(3)

an illicit drugs removal rate, which measures the amount and type of illicit drugs removed by the maritime security components of the Department of Homeland Security inside a transit zone in any fiscal year compared to an average of the amount and type of illicit drugs removed by such components inside a transit zone for the immediately preceding 5 fiscal years;

(4)

an illicit drugs removal rate, which measures the amount of illicit drugs removed by the maritime security components of the Department of Homeland Security outside a transit zone in any fiscal year compared to an average of the amount of illicit drugs removed by such components outside a transit zone for the immediately preceding 5 fiscal years;

(5)

a cocaine removal effectiveness rate inside a transit zone;

(6)

a cocaine removal effectiveness rate outside a transit zone; and

(7)

a response rate which measures the Department of Homeland Security’s ability to respond to and resolve known maritime threats, both inside and outside a transit zone, by placing assets on-scene, compared to the total number of events with respect to which the Department has known threat information.

(h)

Collaboration and consultation—

(1)

In general— The Secretary of Homeland Security shall collaborate with the head of a national laboratory within the Department of Homeland Security laboratory network with expertise in border security and the head of a border security university-based center within the Department of Homeland Security centers of excellence network to develop, and ensure the suitability and statistical validity of, the metrics required under subsections (e), (f), and (g).

(2)

Recommendations relating to certain other metrics— In carrying out paragraph (1), the head of the national laboratory and the head of a border security university-based center shall make recommendations to the Secretary of Homeland Security for other suitable metrics that may be used to measure the effectiveness of border security.

(3)

Consultation— In addition to the collaboration described in paragraph (1), the Secretary shall also consult with the Governors of every border State and the representatives of the Border Patrol and U.S. Customs and Border Protection regarding the development of the metrics required under subsections (e), (f), and (g).

(i)

Evaluation by the Government Accountability Office—

(1)

In general— The Secretary of Homeland Security shall provide the Government Accountability Office with the data and methodology used to develop the metrics implemented under subsections (e), (f), and (g).

(2)

Report— Not later than 270 days after receiving the data and methodology referred to in paragraph (1), the Comptroller General of the United States shall submit a report to the appropriate congressional committees on the suitability and statistical validity of such data and methodology.

(j)

Certifications and reports relating to operational control—

(1)

By the secretary of homeland security—

(A)

Two years— If the Secretary of Homeland Security determines that situational awareness and operational control of high traffic areas have been achieved not later than 2 years after the date of the submission of the implementation plan required under subsection (c), the Secretary shall submit an attestation of such achievement to the appropriate congressional committees and the Comptroller General of the United States.

(B)

Five years— If the Secretary of Homeland Security determines that operational control along the southwest border of the United States has been achieved not later than 5 years after the date of the submission of the implementation plan required under subsection (c), the Secretary shall submit an attestation of such achievement to the appropriate congressional committees and the Comptroller General of the United States.

(C)

Annual updates— Every year beginning with the year after the Secretary of Homeland Security submits the attestation under subparagraph (B), if the Secretary determines that operational control along the southwest border of the United States is being maintained, the Secretary shall submit an attestation of such maintenance to the appropriate congressional committees and the Comptroller General of the United States.

(2)

By the comptroller general—

(A)

Reviews— The Comptroller General of the United States shall review and assess the attestations of the Secretary of Homeland Security under subparagraphs (A), (B), and (C) of paragraph (1).

(B)

Reports— Not later than 120 days after conducting the reviews described in subparagraph (A), the Comptroller General of the United States shall submit a report on the results of each such review to the appropriate congressional committees.

(k)

Failure To achieve situational awareness or operational control— If the Secretary of Homeland Security determines that situational awareness, operational control, or both, as the case may be, has not been achieved by the dates referred to in subparagraphs (A) and (B) of subsection (j)(1), as the case may be, or if the Secretary determines that operational control is not being annually maintained pursuant to subparagraph (C) of such subsection, the Secretary shall, not later than 60 days after such dates, submit a report to the appropriate congressional committees that—

(1)

describes why situational awareness or operational control, or both, as the case may be, was not achieved; and

(2)

includes a description of impediments incurred, potential remedies, and recommendations to achieve situational awareness, operational control, or both, as the case may be.

(l)

Government accountability office report on border security duplication and cost effectiveness— Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall submit a report to the appropriate congressional committees that addresses—

(1)

areas of overlap in responsibilities within the border security functions of the Department of Homeland Security; and

(2)

the relative cost effectiveness of border security strategies, including deployment of additional personnel and technology, and construction of virtual and physical barriers.

(m)

Reports— Not later than 60 days after the date of the enactment of this Act and annually thereafter, the Secretary of Homeland Security shall submit a report to the appropriate congressional committees that contains—

(1)

a resource allocation model for current and future year staffing requirements that includes—

(A)

optimal staffing levels at all land, air, and sea ports of entry; and

(B)

an explanation of U.S. Customs and Border Protection methodology for aligning staffing levels and workload to threats and vulnerabilities and their effects on cross border trade and passenger travel across all mission areas;

(2)

detailed information on the level of manpower available at all land, air, and sea ports of entry and between ports of entry, including the number of canine and agricultural specialists assigned to each such port of entry;

(3)

detailed information that describes the difference between the staffing the model suggests and the actual staffing at each port of entry and between the ports of entry; and

(4)

detailed information that examines the security impacts and competitive impacts of entering into a reimbursement agreement with foreign governments for U.S. Customs and Border Protection preclearance facilities.

Sec. 204 Prohibition on land border crossing fee study

The Secretary of Homeland Security may not conduct any study relating to the imposition of a border crossing fee for pedestrians or passenger vehicles at land ports of entry along the southern border or the northern border of the United States.

Sec. 205 Border security resources

(a)

Equipment and technology enhancements— Consistent with the Southern Border Security Strategy required under section 203, the Secretary of Homeland Security, in consultation with the Commissioner of U.S. Customs and Border Protection, shall upgrade existing technological assets and equipment, and procure and deploy additional technological assets and equipment on the southern border.

(b)

Physical and tactical infrastructure improvements—

(1)

Construction, upgrade, and acquisition of border control facilities— Consistent with the Southern Border Security Strategy required under section 203, the Secretary, shall upgrade existing physical and tactical infrastructure of the Department of Homeland Security, and construct and acquire additional physical and tactical infrastructure on the southern border, including the following:

(A)

U.S. Border Patrol stations.

(B)

U.S. Border Patrol checkpoints.

(C)

Forward operating bases.

(D)

Monitoring stations.

(E)

Mobile command centers.

(F)

Land border port of entry improvements.

(G)

Other necessary facilities, structures, and properties.

(c)

Customs and border protection personnel enhancements—

(1)

Additional officers— Consistent with the Southern Border Security Strategy required under section 203, the Secretary is authorized to increase the number of trained active-duty U.S. Customs and Border Protection officers deployed on the southern border, including—

(A)

officers serving in the Office of the Border Patrol;

(B)

officers serving in the Office of Air and Marine; and

(C)

officers serving in the Office of Field Operations, including officers stationed at land border ports of entry.

(2)

Expedited training and deployment authority— When exercising authority under this section, the Secretary is authorized—

(A)

to conduct enhanced recruiting operations for U.S. Customs and Border Protection personnel;

(B)

to conduct additional training academies for U.S. Customs and Border Protection personnel; and

(C)

to promulgate regulations allowing for the expedited training of U.S. Customs and Border Protection personnel.

(d)

National Guard support for operations—

(1)

In general— Amounts authorized to be appropriated under this section may be expended, with the approval of the Secretary of Defense and the Secretary of Homeland Security, for the Governor of a State to order any units or personnel of the National Guard of such State to perform operations and missions under section 502(f) of title 32, United States Code, on the southern border.

(2)

Assignment of operations and missions—

(A)

In general— National Guard units and personnel deployed under paragraph (1) may be assigned such operations, including missions specified in paragraph (3), as may be necessary to provide assistance for operations on the southern border.

(B)

Nature of duty— The duty of National Guard personnel performing operations and missions described in subparagraph (A) shall be full-time duty under title 32, United States Code.

(3)

Range of operations and missions— The operations and missions assigned under paragraph (2) shall include the temporary authority—

(A)

to provide assistance for law enforcement, including the interdiction of human trafficking, illicit drugs, and contraband crossing the border;

(B)

to assist in the provision of humanitarian relief;

(C)

to increase ground-based mobile surveillance systems;

(D)

to deploy additional unmanned aerial systems and manned aircraft sufficient to maintain continuous surveillance of the southern border;

(E)

to deploy and provide capability for radio communications interoperability between U.S. Customs and Border Protection and State, local, and tribal law enforcement agencies;

(F)

to construct checkpoints along the southern border to bridge the gap to long-term permanent checkpoints;

(G)

to provide assistance to U.S. Customs and Border Protection, particularly in rural, high-trafficked areas, as designated by the Commissioner of U.S. Customs and Border Protection;

(H)

to enhance law enforcement rotary wing operations supporting quick reaction forces, medical air evacuations, and incident awareness and assessment operations; and

(I)

to provide equipment and training to law enforcement agencies.

(4)

Materiel and logistical support— The Secretary of Defense shall deploy such materiel and equipment and logistical support as may be necessary to ensure success of the operations and missions conducted by the National Guard under this subsection.

(5)

Exclusion from national guard personnel strength limitations— National Guard personnel deployed under paragraph (1) shall not be included in—

(A)

the calculation to determine compliance with limits on end strength for National Guard personnel; or

(B)

limits on the number of National Guard personnel that may be placed on active duty for operational support under section 115 of title 10, United States Code.

(6)

Funding— There are authorized to be appropriated for fiscal years 2014 and 2015 such sums as may be necessary to carry out this subsection.

(e)

State and local assistance—

(1)

In general— The Federal Emergency Management Agency shall enhance law enforcement preparedness, humanitarian responses, and operational readiness along the southern border through Operation Stonegarden.

(2)

Grants and reimbursements—

(A)

In general— For purposes of paragraph (1), amounts made available under this section shall be allocated for grants and reimbursements to State and local governments in Border Patrol Sectors on the southern border for personnel, overtime, travel, costs related to combating illegal immigration and drug smuggling, and costs related to providing humanitarian relief to unaccompanied alien children who have entered the United States.

(B)

Funding for state and local governments— Allocations for grants and reimbursements to State and local governments under this paragraph shall be made by the Federal Emergency Management Agency through a competitive process.

(3)