[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 152 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 152
To utilize 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 HOUSE OF REPRESENTATIVES
January 5, 2011
Mr. Poe of Texas (for himself, Mr. Brady of Texas, Mr. Gohmert, Mr.
Royce, Mr. Roe of Tennessee, Mr. Hall, Mr. Campbell, Mr. Burton of
Indiana, Mr. Stutzman, Mr. Stearns, and Mr. Latta) introduced the
following bill; which was referred to the Committee on Armed Services
_______________________________________________________________________
A BILL
To utilize 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. SHORT TITLE.
This Act may be cited as the ``National Guard Border Enforcement
Act''.
SEC. 2. USE OF NATIONAL GUARD TO SUPPORT DEPARTMENT OF HOMELAND
SECURITY BORDER CONTROL ACTIVITIES.
(a) Expanded Deployment of National Guard; Duration.--
(1) Deployment; duration.--In addition to the number of
members of the National Guard deployed along the international
border between the United States and Mexico as of the date of
the enactment of this Act, the Secretary of Defense shall
provide for the deployment of not less than an additional
10,000 members of the National Guard along the international
border between the United States and Mexico until the date on
which the Secretary of Homeland Security certifies that the
Federal Government has achieved operational control of the
international border.
(2) Additional deployments.--The Secretary of Defense may
exceed the number specified in paragraph (1) at the request of
a Governor of a State that shares a portion of the
international border between the United States and Mexico if,
despite the deployment of the additional 10,000 members of the
National Guard along the international border, operational
control of the international border has not been achieved.
(3) Deployment authorities.--Members of the National Guard
required to be deployed pursuant to paragraph (1) may be
deployed under section 502(f) of title 32, United States Code,
pursuant to a State border control activities plan approved
under section 112a of such title, as added by subsection (b),
or pursuant to the order of the Secretary of Defense under any
other provision of law.
(4) Exemption from end strengths and other limitations.--
Members of the National Guard 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.
(5) Operational control defined.--In this subsection, the
term ``operational control'' has the meaning given that term in
section 2(b) of the Secure Fence Act of 2006 (Public Law 109-
367; 8 U.S.C. 1701 note).
(b) Federal Assistance for State Border Control Activities Plans.--
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 shall 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 10,000 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) 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) Armed vehicle and foot patrols along the
international border between the United States and
Mexico.
``(B) Interdiction of a vehicle, vessel, aircraft
or other similar activity.
``(C) Search, seizure, and detention of suspects.
``(D) Construction of roads, fences, and vehicle
barriers.
``(E) Search and rescue operations.
``(F) Intelligence gathering, surveillance, and
reconnaissance.
``(G) Aviation support.
``(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 new item:
``112a. Border control activities.''.
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