S 2716
Calendar No. 601
110th CONGRESS
2d Session
S. 2716
To authorize the National Guard to provide support for the
border control activities of the United States Customs and Border Protection
of the Department of Homeland Security, and for other purposes.
IN THE SENATE OF THE UNITED STATES
March 5, 2008
Mr. DOMENICI introduced the following bill; which was read the first
time
March 6, 2008
Read the second time and placed on the calendar
A BILL
To authorize the National Guard to provide support for the
border control activities of the United States Customs and Border Protection
of the Department of Homeland Security, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. NATIONAL GUARD SUPPORT FOR BORDER CONTROL ACTIVITIES.
(a) Operation Jump Start-
(1) IN GENERAL- Not fewer than 6,000 National Guard personnel shall
continue to be deployed along the international border between the
United States and Mexico under Operation Jump Start until the date
on which the Federal Government has achieved operational control of
such border (as defined in section 2(b) of the Secure Fence Act of
2006 (Public Law 109-367)).
(2) EXEMPTION- National Guard personnel deployed pursuant to paragraph
(1) shall not be included in the calculation to determine compliance
with--
(A) limits on end strength; or
(B) limits on the number of National Guard personal that may be
placed on active duty for operational support.
(b) Support Authorized- Chapter 1 of title 32, United States Code, is
amended by inserting after section 112 the following:
`Sec. 112a. Border control activities
`(a) Funding Assistance- The Secretary of Defense may provide funds
to the Governor of a State who submits to the Secretary a State border
control activities plan satisfying the requirements of subsection (c).
Such funds shall be used for the following:
`(1) The pay, allowances, clothing, subsistence, gratuities, travel,
and related expenses, as authorized by State law, of personnel of
the National Guard of that State used, while not in Federal service,
for the purpose of border control activities.
`(2) The operation and maintenance of the equipment and facilities
of the National Guard of that State used for the purpose of border
control activities.
`(3) The procurement of services and equipment, and the leasing of
equipment, for the National Guard of that State used for the purpose
of border control activities. However, the use of such funds for the
procurement of equipment may not exceed $5,000 per item, unless approval
for procurement of equipment in excess of that amount is granted in
advance by the Secretary of Defense.
`(b) Use of Personnel Performing Full-Time National Guard Duty- (1)
Under regulations prescribed by the Secretary of Defense, personnel
of the National Guard of a State may, in accordance with the State border
control activities plan referred to in subsection (c), be ordered to
perform full-time National Guard duty under section 502(f) of this title
for the purpose of carrying out border control activities.
`(2)(A) A member of the National Guard serving on full-time National
Guard duty under orders authorized under paragraph (1) shall participate
in the training required under section 502(a) of this title in addition
to the duty performed for the purpose authorized under that paragraph.
The pay, allowances, and other benefits of the member while participating
in the training shall be the same as those to which the member is entitled
while performing duty for the purpose of carrying out border control
activities. The member is not entitled to additional pay, allowances,
or other benefits for participation in training required under section
502(a)(1) of this title.
`(B) Appropriations available for the Department of Defense for homeland
defense may be used for paying costs associated with a member's participation
in training described in subparagraph (A). The appropriation shall be
reimbursed in full, out of appropriations available for paying those
costs, for the amounts paid. Appropriations available for paying those
costs shall be available for making the reimbursements.
`(C) To ensure that the use of units and personnel of the National Guard
of a State pursuant to a State border control activities plan does not
degrade the training and readiness of such units and personnel, the
following requirements shall apply in determining the border control
activities that units and personnel of the National Guard of a State
may perform:
`(i) The performance of the activities may not adversely affect the
quality of that training or otherwise interfere with the ability of
a member or unit of the National Guard to perform the military functions
of the member or unit.
`(ii) National Guard personnel will not degrade their military skills
as a result of performing the activities.
`(iii) The performance of the activities will not result in a significant
increase in the cost of training.
`(iv) In the case of border control activities performed by a unit
organized to serve as a unit, the activities will support valid unit
training requirements.
`(c) Plan Requirements- A State border control activities plan shall--
`(1) specify how personnel of the National Guard of that State are
to be used in border control activities in support of the mission
of the United States Customs and Border Protection of the Department
of Homeland Security;
`(2) certify that those operations are to be conducted at a time when
the personnel involved are not in Federal service;
`(3) certify that participation by National Guard personnel in those
operations is service in addition to training required under section
502 of this title;
`(4) certify that any engineer-type activities (as defined by the
Secretary of Defense) under the plan will be performed only by units
and members of the National Guard;
`(5) include a certification by the Attorney General of the State
(or, in the case of a State with no position of Attorney General,
a civilian official of the State equivalent to a State attorney general)
that the use of the National Guard of the State for the activities
proposed under the plan is authorized by, and is consistent with,
State law; and
`(6) certify that the Governor of the State or a civilian law enforcement
official of the State designated by the Governor has determined that
any activities included in the plan that are carried out in conjunction
with Federal law enforcement agencies serve a State law enforcement
purpose.
`(d) Examination of Plan- Before funds are provided to the Governor
of a State under this section and before members of the National Guard
of that State are ordered to full-time National Guard duty as authorized
in subsection (b), the Secretary of Defense shall, in consultation with
the Secretary of Homeland Security, examine the adequacy of the plan
submitted by the Governor under subsection (c). The plan as approved
by the Secretary of Defense may provide for the use of personnel and
equipment of the National Guard of that State to assist United States
Customs and Border Protection in the transportation of aliens who have
violated a Federal immigration law.
`(e) End Strength Limitation- (1) Except as provided in paragraphs (2)
and (3), at the end of a fiscal year there may not be more than 6,000
members of the National Guard--
`(A) on full-time National Guard duty under section 502(f) of this
title to perform border control activities pursuant to an order to
duty; or
`(B) on duty under State authority to perform border control activities
pursuant to an order to duty with State pay and allowances being reimbursed
with funds provided under subsection (a)(1).
`(2) The Secretary of Defense may increase the end strength authorized
under paragraph (1) by not more than 20 percent for any fiscal year
if the Secretary determines that such an increase is necessary in the
national security interests of the United States.
`(3) National Guard personnel deployed pursuant to paragraph (1) shall
not be included in the calculation to determine compliance with--
`(A) limits on end strength; or
`(B) limits on the number of National Guard personal that may be placed
on active duty for operational support.
`(f) Annual Report- The Secretary of Defense shall submit to Congress
an annual report regarding assistance provided and activities carried
out under this section during the preceding fiscal year. The report
shall include the following:
`(1) The number of members of the National Guard excluded under subsection
(e) from the computation of end strengths.
`(2) A description of the border control activities conducted under
State border control activities plans referred to in subsection (c)
with funds provided under this section.
`(3) An accounting of the amount of funds provided to each State.
`(4) A description of the effect on military training and readiness
of using units and personnel of the National Guard to perform activities
under the State border control activities plans.
`(g) Statutory Construction- Nothing in this section shall be construed
as a limitation on the authority of any unit of the National Guard of
a State, when such unit is not in Federal service, to perform law enforcement
functions authorized to be performed by the National Guard by the laws
of the State concerned.
`(h) Definitions- In this section:
`(1) The term `border control activities', with respect to the National
Guard of a State, means the use of National Guard personnel in border
control activities authorized by the law of the State and requested
by the Governor of the State in support of the mission of the United
States Customs and Border Protection of the Department of Homeland
Security, including activities as follows:
`(A) Construction of roads, fences, and vehicle barriers.
`(B) Search and rescue operations.
`(C) Intelligence gathering, surveillance, and reconnaissance.
`(D) Communications and information technology support.
`(E) Installation and operation of cameras.
`(F) Repair and maintenance of infrastructure.
`(G) Administrative support.
`(H) Aviation support, including maintenance.
`(2) The term `Governor of a State' means, in the case of the District
of Columbia, the Commanding General of the National Guard of the District
of Columbia.
`(3) The term `State' means each of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, or a territory or possession
of the United States.'.
(c) Clerical Amendment- The table of sections at the beginning of chapter
1 of such title is amended by inserting after the item relating to section
112 the following:
`112a. Border control activities.'.
Calendar No. 601
110th CONGRESS
2d Session
S. 2716
A BILL
To authorize the National Guard to provide support for the border control
activities of the United States Customs and Border Protection of the
Department of Homeland Security, and for other purposes.
March 6, 2008
Read the second time and placed on the calendar
END
