[Senate Report 116-267]
[From the U.S. Government Publishing Office]
Calendar No. 530
116th Congress } { Report
SENATE
2nd Session } { 116-267
_______________________________________________________________________
SECURING AMERICA'S PORTS ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 5273
TO REQUIRE THE SECRETARY OF HOMELAND SECURITY TO
DEVELOP A PLAN TO INCREASE TO 100 PERCENT THE RATES
OF SCANNING OF COMMERCIAL AND PASSENGER VEHICLES
ENTERING THE UNITED STATES AT LAND PORTS OF ENTRY
ALONG THE BORDER USING LARGE-SCALE
NON-INTRUSIVE INSPECTION SYSTEMS TO ENHANCE BORDER SECURITY, AND FOR
OTHER PURPOSES
September 9, 2020.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
99-010 WASHINGTON : 2020
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Caroline K. Bender, Research Assistant
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Samuel Rodarte Jr., Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 530
116th Congress } { Report
SENATE
2nd Session } { 116-267
======================================================================
SECURING AMERICA'S PORTS ACT
_______
September 9, 2020.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 5273]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 5273) to require
the Secretary of Homeland Security to develop a plan to
increase to 100 percent the rates of scanning of commercial and
passenger vehicles entering the United States at land ports of
entry along the border using large-scale, non-intrusive
inspection systems to enhance border security, and for other
purposes, having considered the same, reports favorably thereon
with an amendment in the nature of a substitute and an
amendment to the title and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................4
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Act, as Reported.............6
I. Purpose and Summary
The purpose of H.R. 5273, the Securing America's Ports Act,
is to enhance border security by increasing the rate of high
throughput scanning for commercial and passenger vehicles and
freight rail traffic entering the United States. Specifically,
the Act requires the Department of Homeland Security (DHS or
the Department) to, within 180 days of enactment, submit to
Congress a plan for achieving 100 percent scanning rates. The
Act requires the Department to utilize large-scale non-
intrusive inspection (NII) technology such as X-ray, gamma-ray,
or passive systems.
The Department's plan is to include the baseline
information on the large-scale NII systems or similar
technologies operated by U.S. Customs and Border Protection
(CBP) at ports of entry and rail crossings, including but not
limited to, an inventory of large-scale NII, the location of
each system, and percentage of commercial and passenger
vehicles and freight rail traffic scanned by each system. The
plan is also to include benchmarks for achieving progress
toward 100 percent scanning using NII over the six years
following the Act's enactment, the estimated costs, and
projected impacts on the volume of traffic and personnel needs.
Within one year of the enactment of this Act, and biennially
thereafter for six years, DHS is to submit a report to Congress
on the progress made in implementing the plan to achieve 100
percent scanning.
II. Background and the Need for Legislation
CBP uses large-scale NII systems to scan for contraband and
illicit materials without having to physically inspect a rail
car or vehicle.\1\ During fiscal year 2019, with the use of 320
large-scale NII systems, CBP made over 3,000 seizures, an
increase of 21 percent from fiscal year 2018.\2\ According to
CBP, this was a result of scanning approximately 15 percent of
commercial cargo and only one percent of vehicles arriving at
land ports of entry.\3\ CBP enforcement data shows that larger
quantities of illicit drugs seized by CBP are encountered at
ports of entry.\4\ Therefore, increasing the percentage of CBP
inspections using large-scale NII systems, rather than manual
screening processes, will result in a larger amount of illicit
materials seized at ports of entry.
---------------------------------------------------------------------------
\1\U.S. Dep't of Homeland Sec., U.S. Customs and Border Protection
Budget Trade and Travel Report: Fiscal year 2019 (Jan. 2020), https://
www.cbp.gov/sites/default/files/assets/documents/2020-Jan/
CBP%20FY2019%20Trade%20and%20Travel%20Report.pdf.
\2\Id.
\3\Id.
\4\U.S. Dep't of Homeland Sec., U.S. Customs and Border Protection,
CBP Enforcement Statistics Fiscal Year 2020, https://www.cbp.gov/
newsroom/stats/cbp-enforcement-statistics.
---------------------------------------------------------------------------
In 2018, the then-Commissioner of CBP Kevin McAleenan
testified that CBP ``will continue to adapt our deployment of
NII systems so that we can work smarter and faster in detecting
contraband, while expediting legitimate trade and travel''.\5\
DHS has repeatedly touted the success of NII systems and
recently prioritized increasing NII scanning rates.\6\ In March
2020, DHS Acting Secretary Chad Wolf pointed to NII as the path
forward for DHS to increase inspection rates, saying that the
funding Congress has appropriated thus far for NII will help
DHS increase their rates of inspection to 40 percent for
passenger vehicles and 72 percent for commercial vehicles by
2023.\7\ Furthermore, in the Department's fiscal year 2021
budget request, DHS stated that they plan to continue using
prior year funding during fiscal year 2021 to deploy procured
large-scale NII systems.\8\
---------------------------------------------------------------------------
\5\Trade and Commerce at U.S. Ports of Entry: Hearing Before the S.
Comm. on Finance (2018) (testimony of Kevin McAleenan, Commissioner,
U.S. Customs and Border Protection, U.S. Dep't of Homeland Sec.),
available at https://www.finance.senate.gov/imo/media/doc/18JUL2018
McAleenanSTMNT.pdf.
\6\Id at 1.
\7\Resources and Authorities Needed to Protect and Secure the
Homeland: Hearing Before the S. Comm. on Homeland Sec. and Governmental
Affairs, 116th Cong. (2020), available at https://www.hsgac.senate.gov/
resources-and-authorities-needed-to-protect-and-secure-the-homeland.
\8\U.S. Dep't of Homeland Sec., U.S. Customs and Border Protection
Budget Overview: FiscalYear2021, https://www.dhs.gov/sites/default/
files/publications/u.s._customs_and_border_ protection.pdf.
---------------------------------------------------------------------------
The SAFE Ports Act of 2006 required DHS to ensure that 100
percent of cargo containers arriving at U.S. seaports undergo
screening for risk and further, that those which are identified
as high risk undergo 100 percent scanning.\9\ In this same
spirit, this Act encourages DHS to increase the rate of
scanning for commercial and passenger vehicles and freight rail
cargo entering the United States.
---------------------------------------------------------------------------
\9\Security and Accountability for Every Port Act of 2006, Pub. L.
No. 109-347, 120 Stat. 1884 (2006), available at https://
www.congress.gov/109/plaws/publ347/PLAW-109publ347.pdf.
---------------------------------------------------------------------------
In an August 2019 report, the Government Accountability
Office found that CBP could improve its performance by
``establishing an ambitious and realistic target for its major
violations interception rate.''\10\ By requiring DHS to
formulate a plan for achieving 100 percent scanning rates and
periodically reporting to Congress on their progress, H.R. 5273
will effectively mandate that the agency evaluates its scanning
capabilities and identify current deficiencies in its screening
processes.
---------------------------------------------------------------------------
\10\U.S. Gov't Accountability Off., GAO-19-658, Land Ports of
Entry: CBP Should Update Policies and Enhance Analysis of Inspections
(Aug. 2019), available at https://www.gao.gov/assets/710/700758.pdf.
---------------------------------------------------------------------------
H.R. 5273 requires DHS to evaluate the large-scale NII
systems they deploy on how they interact with current methods
of scanning, such as canines and human intelligence.
Additionally, the Act requires DHS to understand the costs
associated with each system, including how the deployment of
this technology impacts staffing, traffic flow, and
infrastructure needs.
III. Legislative History
Representative Xochitl Torres Small (D-NM) introduced H.R.
5273 on November 26, 2019. The House of Representatives passed
the Act under suspension of the rules by voice vote on February
10, 2020. The Act was referred to the Committee on Homeland
Security and Governmental Affairs.
The Committee considered H.R. 5273 at a business meeting on
March 11, 2020. Chairman Ron Johnson (R-WI) and Senator Kyrsten
Sinema (D-AZ) offered a modified substitute amendment that
included freight rail cargo in CBP's plan for achieving 100
percent scanning rates and removed the research and development
mandate. The amendment also reduced the required number of
reports and re-defined large-scale non-intrusive inspection to
include passive technology. Chairman Johnson offered Johnson
amendment 2 to change the long title of the bill to include
freight rail.
Both amendments were adopted en bloc by voice vote and the
Act, as amended, was reported favorably en bloc. Senators
Johnson, Portman, Lankford, Romney, Scott, Enzi, Hawley,
Peters, Carper, Hassan, Harris, Sinema, and Rosen were present
for the votes.
IV. Section-by-Section Analysis of the Act, as Reported
Section 1. Short title
This section establishes the short title of the Act as the
``Securing America's Ports Act.''
Section 2. Large-scale non-intrusive inspection scanning plan
Subsection (a) defines ``large-scale, non-intrusive
inspection systems,'' to include x-ray, gamma-ray, and passive
imaging systems that are able to produce images of the contents
in a vehicle or rail car in one pass. The term ``scanning'' is
defined as the utilization of nonintrusive imaging equipment,
radiation detection equipment, or both, to capture data and
images of vehicles and rail cars.
Subsection (b) requires the Secretary of Homeland Security
to submit to Congress, within 180 days of enactment of this
Act, a plan for increasing to 100 percent the rate of scanning
for commercial and passenger vehicles and fright rail cargo
entering the United States. This scanning is to utilize large-
scale non-intrusive inspection systems.
Subsection (c) describes the baseline information to be
included in the plan, including but not limited to, an
inventory of large-scale NII system or similar technology in
use and the continued use of other means of scanning.
Additionally, for each large-scale NII system identified in the
inventory, the plan must include the scanning method of the
system, the location where the technology is in use at ports of
entry, percentages of traffic scanned, seizure data, and the
number of personnel required to operate the technology.
Subsection (d) specifies which elements must be included in
the plan submitted to Congress, including the benchmarks for
achieving within the next six years 100 percent high-throughput
scanning of commercial and passenger vehicles and freight rail
traffic, the estimated costs, and projected impacts on the
volume of traffic and personnel needs.
Subsection (e) requires the Secretary of Homeland Security
to submit a report to Congress on the progress made in
implementing the plan to achieve 100 percent scanning. The
first report is to be submitted within a year of enactment with
bi-annual reports for the following six years. These reports
must include the inventory of large-scale, nonintrusive
inspection systems, details on each system, volume of traffic
being scanned, progress towards meeting the benchmarks, updates
on costs and any realized impacts or challenges in implementing
the plan.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this Act and determined
that the Act will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the Act contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 18, 2020.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5273, the Securing
America's Ports Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
At land ports of entry to the United States, Customs and
Border Protection (CBP) uses scanning technology capable of
producing an image of the contents of commercial and passenger
vehicles as they pass through inspection areas. Those systems,
known as large-scale nonintrusive inspection (LS NII) systems,
allow for scanning of higher volumes of vehicles and cargo
compared to physical inspection. In 2020, the Congress
appropriated $59 million for CBP to procure and deploy such
systems.
H.R. 5273 would require CBP to produce a plan to increase
the use of LS NII systems to 100 percent at land ports of
entry.\1\ The plan would include benchmarks for measuring
scanning rates and estimates of costs to acquire, operate, and
maintain those systems. The act would require CBP to report
annually to the Congress on its progress in implementing the
plan.
---------------------------------------------------------------------------
\1\At land ports of entry to the United States, CBP currently scans
approximately 1 percent to 2 percent of passenger vehicles and 15
percent to 17 percent of commercial trucks with nonintrusive inspection
systems. The bulk of scanning efforts are focused at ports of entry
along the southern border where the volume of vehicle traffic is
considerably higher than along the northern border.
---------------------------------------------------------------------------
Using information provided by CBP, CBO estimates that the
agency would spend about $300,000 on staffing and contract
costs in 2021 to produce the required plan and an additional
$100,000 a year after 2021 to conduct analyses of system
deployment and to report annually to the Congress. The costs of
the legislation fall under budget function 750 (administration
of justice).
Although H.R. 5273 would require CBP to produce a plan to
scan 100 percent of vehicles crossing U.S. borders, the act
would not require the agency to meet that standard.
Accordingly, this estimate does not include the costs to
procure and deploy the necessary scanning systems.
Using information provided by the agency, CBO expects that
under current law scanning rates for vehicles crossing the
southern border will reach 100 percent for both passenger and
commercial vehicles near the end of the decade if the Congress
continues to provide appropriations at the current level.
However, CBO expects that appropriations at that annual level
would not be sufficient to achieve full scanning at the
northern border until sometime after 2030.
On August 18, 2020, CBO transmitted a cost estimate for
H.R. 5273, the Securing America's Ports Act, as passed by the
House of Representatives on February 10, 2020. The two versions
of the legislation are similar but the House version would
require CBP to conduct research and development on LS NII
systems. CBO's cost estimates for the two versions reflect that
difference--about $6 million in discretionary costs over the
2021-2025 period.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
Because this legislation would not repeal or amend any
provision of current law, it would not make changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.