Border and Transportation Security: Overview of Congressional Issues
Released: 2005-04-07T00:00:00

Overview of Key Concepts

Improving border and transportation security (BTS) are essential strategies for improving andmaintaining homeland security. Border security entails regulating the flow of traffic across thenation's borders so that dangerous and unwanted goods and people are detected and denied entry. This requires a sophisticated border management system that balances the need for securing thenation's borders with facilitating the essential free flow of legitimate commerce, citizens, andauthorized visitors. Transportation security involves securing the flow of people and goods alongthe nation's highways, railways, airways, and waterways. (1) While in the immediate aftermath of 9/11 efforts primarilyconcentrated on an expanded federal role in aviation security (in particular on the heightenedscreening of passengers and baggage), increasingly attention is being turned towards other modesof transportation.

Recent congressional actions concerning terrorism and border security fall into severalcategories including broad efforts to understand the terrorist threat (including several commissions:Gilmore, Bremer, and Hart-Rudman); structural changes to provide a proper framework for action(enacting legislation, P.L. 107-296 , to create the Department of Homeland Security (DHS), andenacting the USA Patriot Act, P.L. 107-56 ); highly specific actions to prevent immediate threats(legislative activity concerning aviation security, visa policy, bioterrorism, and maritime security);and a return to broader and more comprehensive approaches (including the creation of the 9/11Commission, and the recently passed intelligence reform bill). The indications are that in both alegislative and oversight capacity, the 109th Congress will be dealing with issues that confront bordersecurity and homeland security issues in a comprehensive and more integrated fashion.

This report is intended as an overview of selected concepts and issues that may be of interestto the 109th Congress, and should not be considered exhaustive. It provides a brief description ofselected agencies and their border and transportation security responsibilities. (2) The paper then discussesselected concepts that are prominently featured in recent BTS debates; and provides a summary ofBTS-related provisions of the 9/11 Commission Report, and the Intelligence Reform and TerrorismPrevention Act of 2004. Finally, this report presents some specific border and transportation securityissues that may be of interest to the 109th Congress. (3)

DHS Border and Transportation Security Responsibilities

DHS is the primary agency responsible for the security of the borders. The HomelandSecurity Act of 2002 ( P.L. 107-296 ) transferred the relevant funding and most of the personnel of22 agencies and offices to the newly created Department of Homeland Security. DHS was organizedinto four main directorates: Border and Transportation Security (BTS); Emergency Preparednessand Response (EPR); Science and Technology (S&T); and Information Analysis and InfrastructureProtection (IAIP).

Border security functional responsibilities are at their most vivid at the point at which goodsor people are expected to cross borders. (4) The border and transportation security responsibilities of DHS areprimarily located within the BTS Directorate. The Coast Guard is a stand alone agency within DHS,but has significant border security responsibilities.

Within the BTS Directorate, Customs and Border Protection (CBP) has responsibility forsecurity at and between ports-of-entry along the border. These responsibilities include inspectingpeople and goods to determine if they are authorized to enter, and maintaining border crossingstations to process persons seeking entry to the U.S. The inspection and border-related functions ofthe Customs Service; the inspection functions of the former Immigration and Naturalization Service;the Border Patrol; and the inspection functions of the Animal and Plant Health Inspection Service(APHIS) program are consolidated under the CBP. Within CBP, the United States Border Patrol(USBP) is the agency responsible for the enforcement of federal immigration laws between ports ofentry. As currently comprised, the USBP's primary mission is to detect and prevent the entry ofterrorists, weapons of mass destruction, and unauthorized aliens into the country, and to interdictdrug smugglers and other criminals.

Also within BTS, the bureau of Immigration and Customs Enforcement (ICE) focuses onenforcement of immigration and customs laws within the United States, as well as investigations intosuch activities as fraud, forced labor, trade agreement noncompliance, smuggling and illegaltransshipment of people and goods, and vehicle and cargo theft. In addition, this bureau overseesthe building security activities of the Federal Protective Service, formerly of the General ServicesAdministration; the operations of the Air and Marine Operations unit; and the Federal Air MarshalsService (FAMS) transferred to ICE from Transportation Security Administration (TSA) in Augustof 2003. The bureau combined the investigations and intelligence functions of the U.S. CustomsService and the former INS, the air and marine interdiction functions of those agencies, and theimmigration detention and removal programs, as well as the operations of the Federal ProtectiveService. ICE conducts investigations to develop intelligence to reduce illegal entry into the UnitedStates, and is responsible for locating and removing illegal aliens by inspecting places ofemployment for undocumented workers. ICE is responsible for identifying and finding persons whohave overstayed their visas, and the Bureau also develops intelligence to combat terrorist financingand money laundering, and to enforce export laws against smuggling and fraud.

The TSA, created by the Aviation and Transportation Security Act (ATSA; P.L. 107-71 ), wasestablished to increase the protection of people and commerce as they traveled into and throughoutthe United States. TSA's primary focus in the aftermath of the 9/11 attacks has been aviationsecurity, which includes protecting the air transportation system against terrorist threats, sabotageand other acts of violence through the deployment of passenger and baggage screeners; detectionsystems for explosives, weapons, and other contraband; and other security technologies. TSA alsohas responsibilities for marine and land modes of transportation including assessing the risk ofterrorist attacks to all non-aviation transportation modes, issuing regulations to improve the securityof the modes, and enforcing these regulations to ensure the protection of the transportation system. TSA is further charged with serving as the primary liaison for transportation security to the lawenforcement and intelligence communities, and with conducting research and development activitiesto improve security technologies.

The Coast Guard is the lead federal agency for the maritime component of homeland security. As such, it is responsible for border and transportation security as it applies to U.S. ports, coastal andinland waterways, and territorial waters. The Coast Guard also performs other missions, includingsome (such as fisheries enforcement and marine rescue operations) that are not related to homelandsecurity. The law that established DHS ( P.L. 107-296 ) directed that the Coast Guard be maintainedas a distinct entity within DHS and that the Commandant of the Coast Guard report directly to theSecretary of DHS. Accordingly, the Coast Guard exists as its own agency within DHS and is notpart of DHS's border and transportation security directorate. The Coast Guard does, however, workclosely with the BTS directorate.

The Department of State (DOS) and the Department of Justice (DOJ) also have a role to playin border security. Foreign nationals not already legally residing in the United States who wish tocome to the United States generally must obtain a visa to be admitted. (5) Under current law, threedepartments -- DOS, DHS, DOJ -- play key roles in administering the law and policies on theadmission of aliens. (6) DOS's Bureau of Consular Affairs is responsible for issuing visas. DHS's Citizenship andImmigration Services Bureau (USCIS) is charged with approving immigrant petitions. In addition,DOJ's Executive Office for immigration Review (EOIR) plays a significant policy role through itsadjudicatory decisions on specific immigration cases.

With this as background, the report now turns to a discussion of selected concepts thatfrequently appear in BTS debates.

Selected Concepts

This section of the paper discusses several BTS-related concepts that will likely be featuredduring the relevant legislative debates of the 109th Congress.

Border Management

In broad terms, good border management seeks to balance the competing, but not necessarilyconflicting, goals of (1) facilitating (and even expediting) access for people and goods that we bothneed and desire; with (2) interdicting and stopping "bad" people and "bad" things from entering thecountry. The key to success in this endeavor is the ability to accurately and efficiently identifyhigh-risk passengers and cargo, target them for inspection, and prevent the entry of dangerous goodsand people without impeding the flow of legitimate cross-border traffic. The task for the policymaker is to identify and promote those policies that will enhance the efficacy of the filters employedfor these tasks.

More specifically, the border enforcement agent or inspector is ultimately engaged in anidentification and verification process. It is an effort to determine the identity of the people or cargoseeking entry, and to verify the legitimacy of the request for entry. There are many debates abouthow best to do this. The current entry processing procedures for both people and cargo are complex,and involve numerous steps each of which presents both an opportunity for interference or forinterception.

Breadth, Depth, Coverage, and Jurisdiction

Several of the issues that will likely confront policymakers in the 109th Congress essentiallyrevolve around a number of themes relating to breadth, depth, coverage, and jurisdiction. As notedabove, both the border and transportation security realms involve numerous actors (both public andprivate), and a tremendous volume of movements across the nation's borders or along the country'stransportation infrastructure. The environment created by numerous actors and high volumes oftraffic may lead to a potential goal conflict between security and efficiency, in the case whereincreased security measures impede the flow of people and goods across the border and throughoutthe country. Of course, this need not necessarily occur, and in fact policy choices can be made thatboth provide more security and speed the flow of legitimate traffic.

In the 109th Congress, breadth (what and who should be inspected), depth (what should theintensity of the inspection be), coverage (how often should things and people be inspected, and forwhat purpose), and jurisdiction (who should be responsible for the inspection) are likely to be keyitems of debate. For example, many of these debates could center around the securing of goods andpeople that are entering the county and being transported throughout the country, and the level ofinspection that should be applied to them. There are several avenues of approach to inspections. Some argue that targeting procedures, trusted-traveler, and trusted-shipper (or known-shipper)programs are insufficient at identifying so-called high-risk people and cargo and that 100%inspection procedures should be applied. Others argue that because of limited resources (technology,people, time, space), and the potential impact on commerce, a targeted approach should be applied. If 100% inspection is not desirable, or unattainable, what should the appropriate level be? What arethe appropriate targeting mechanisms, and who should apply them? If a layered approach is applied,how often should goods or individuals be inspected or screened before they enter the country, or asthey are transported across the country, and what entities are or will be responsible for theseinspections? These are just some of the overarching questions that can be applied to many of theissues that are discussed in greater detail near the end of this report.

Inspection and Screening. The term inspection can play a prominent role in discussions of border security. Confusion over the use of the terminvariably arises in conflicting estimates of what proportion of goods (containers, trucks, railcars)have been inspected . Depending upon the context, an inspection could entail anything (andeverything) from a review of the documentation attached to the entry of a particular shipment, to amore detailed document check; looking at the outside of a container; walking a K-9 unit around thecontainer; taking an x-ray or a gamma-ray image of the contents of the container; passing thecontainer through a radiation portal monitor; or physically unloading and examining the cargo. Oneoften reported statistic is that "only X% of cargo containers is inspected at the nation's ports." Doesthis mean that only X% was physically removed from the container and examined by inspectors? Or does this mean that X% was x-rayed or sent to what is sometimes referred to as secondaryinspection.

These questions apply to the entry of people as well. In popular discussions, it is not alwaysclear whether an inspection means a documentary review, a biometric verification of identity, aninterview, a pass through a metal detector, a search of applicable databases, and/or a personalsearch? (7) As in the cargorealm, an often reported statistic is that X% of people were inspected at the nation's borders, orairports etc. Does this mean that X% were interviewed, or were sent to secondary inspection? Further, there can be differences in inspections depending upon the port of entry. For example,people arriving in the United States at an airport arguably undergo a more comprehensiveexamination than those arriving by car at land ports of entry.

The concepts of primary and secondary inspection can further complicate the discussion. Aprimary inspection typically consists of some set of standard examination protocols that are appliedto every person or shipment of cargo seeking entry into the country. It follows then that thesecondary inspection is a further set of protocols applied to those shipments or people, which for avariety of possible reasons were unable to be satisfactorily processed during the primary inspection. Thus, when encountering reported statistics or debating policies and procedures, it is important tounderstand the context in which the term inspection is being used, and the subset of cargo and peopleit applies to.

There are related issues with the use of the term screening . What does it mean to screencargo or people as they enter the country? Often this term is used interchangeably with the term inspection , and the same questions as highlighted above apply as well. The term screening is oftenused to describe the querying of databases to verify the identity of the person or good seeking entry,and the legitimacy of that claim. If this is the case, then against what were the individuals or cargoscreened -- terrorist watchlists, criminal history databases, and/or others?

Systems Integration and Interoperability. The9/11 Commission recommended the integration of the U.S. border security system by expanding thenetwork of screening points to include the nation's transportation system and access to vital facilities. The Administration responded to this recommendation by issuing Homeland Security PresidentialDirective 11 (HSPD-11), which in large part builds upon HSPD-6, and related measures to improveterrorist screening. Many of these measures hinge on effective information sharing and, hence, onsystems integration and interoperability in a secure environment. Systems integration involvesestablishing standardized communication protocols and interface specifications for systems(hardware and software) that are usually part of a larger information technology (enterprise)architecture. Integrated systems are highly interoperable in that they are capable of effectively andefficiently sharing information through complementary operational systems, networks, anddatabases. On the other hand, interoperable systems that are not fully integrated usually involveinformation sharing across systems -- on a smaller scale -- based on standardized data formats andelements. Indeed, such systems may not be fully integrated for reasons of security and economy ofscale.

Potential Issues for the 109th Congress

This section of the report highlights some of the BTS-related issues that may be of concernto the 109th Congress. It should be noted that this list contains selected issues and should not beconsidered comprehensive.

Border-Related Immigration Control

US-VISIT/Entry-Exit Screening. The US-VISITprogram may be the subject of congressional oversight as the Administration continues to fullyimplement the program at the various ports of entry. Under current practice, certain foreign nationalsare exempt from the requirements of the U.S.-VISIT program (i.e., Mexican nationals who possessa Laser Visa and many Canadian nationals). However, the 108th Congress passed legislation thatrequires a biometrically secured document of everyone who presents themselves for entry at a U.S.port of entry (though this does not necessarily mean that everyone required to present a biometricallysecured document will be included in US-VISIT). This may continue to be of concern to the nextCongress. The Intelligence Reform and Terrorism Prevention Act (IRTPA) contains severalprovisions relating to the entry-exit system. One of the 9/11 Commission recommendations wouldfind completing the biometric entry-exit system to be an "essential investment" and require theSecretary of DHS to develop a plan to accelerate the full implementation of the system, and tosubmit a report to Congress no later than 180 days after enactment on the plan.

Visa Policy, Visa Waiver and Pre-screening. Since the mid-1990s, immigration control has been shifting away from U.S. border inspections andapprehensions to overseas screening aimed at keeping inadmissible aliens from arriving in the UnitedStates. Since foreign nationals not already legally residing in the United States who wish to cometo the United States generally must obtain a visa to be admitted (with some notable exceptionsdiscussed below), strengthening visa issuance procedures has been a key element of border security. The 109th Congress will continue to oversee the implementation of several important provisionspertaining to visa policy enacted in recent years. These provisions mandated data sharing so thatconsular officers have access to relevant electronic information, required the development of aninteroperable electronic data system to be used to share information relevant to alien admissibility,and required that all visas issued after October 2004 have biometric identifiers. (8) Action most recently to keepinadmissible aliens abroad -- the Intelligence Reform and Terrorism Prevention Act of 2004 --expanded the overseas pre-inspection of travelers destined for the United States, requested thedeployment of technologies (e.g., biometrics) to detect potential terrorist indicators on traveldocuments, established within the Department of State (DOS) an Office of Visa and PassportSecurity, and required that consular officers have greater training in the detection of terrorist travelpatterns.

Many visitors enter the United States without visas through the Visa Waiver Program(VWP), a provision of law that allows the visa requirements to be waived for aliens coming asvisitors from 27 countries that meet certain standards (e.g., Australia, France, Germany, Italy, Japan,New Zealand, and Switzerland). Notable among these requirements is that VWP participatingcountries must issue passports with biometric identifiers; however, this requirement has yet to be metby any of the participating countries. The 108th Congress extended the deadline to incorporatebiometric identifiers until October 26, 2005. The 109th Congress may choose to re-examine thebiometric passport deadline as there are indications that some countries will be unable to meet thenew deadline. Under law, there is no mechanism other than congressional action to extend thedeadline. Another potential issue may be DHS's management of the VWP. A recent report by DHS'sOffice of Inspections detailed several security concerns related to the program including lack ofadequate funding and trained personnel to administer the VWP, reliability issues with the data onlost and stolen passports, and the failure to conduct timely country reviews. (9)

Biometrics and Documentary Requirements. Forover a decade, there has been a consensus that immigration documents should include biometricidentifiers. Congress imposed a statutory requirement for the biometric border crossing card knownas laser visas in 1996 and added requirements for biometric visas in 2001 and 2002. (10) For the past several years,DOS's Bureau of Consular Affairs has been issuing machine-readable visas. Consular officers usethe Consular Consolidated Database (CCD) to store data on visa applicants. Since February 2001,the CCD stores photographs of all visa applicants in electronic form, and more recently the CCD hasbegun storing finger prints of the right and left index fingers. The CCD is the nexus for screeningaliens for admissibility, notably screening on terrorist security and criminal grounds. The laser visa,which also includes a photograph and prints for both index fingers as biometric identifiers, is issuedto citizens of Mexico to gain short-term entry (up to six months) for business or tourism into theUnited States. The Mexican laser visa has traditionally been called a border crossing card (BCC). Since 1998, the card issued to legal permanent residents (LPRs), commonly called a "green card,"has included digital photographs and fingerprints, holograms, micro-printing, and an optical memorystripe.

In addition to the VWP, there are exceptions to documentary requirements for a visa thathave been established by law, treaty, or regulation -- most notably with respect to citizens of Canada. The law also authorizes the Attorney General and the Secretary of State acting jointly to waive thedocumentary requirements, on the basis of unforeseen emergency in individual cases. (11) In 2003, theAdministration scaled back the circumstances in which the visa and passport requirements arewaived. (12)

The 109th Congress may consider limits to the President's ability to waive general statutoryrequirements requiring U.S. citizens traveling abroad or attempting to enter the United States to beara valid U.S. passport. Some would restrict such a waiver only to U.S. citizens traveling to or fromforeign contiguous territories who are bearing identification documents that would be designated byDHS as reliable proof of U.S. citizenship, and would require that the documentation not be of a typeissued to an unlawfully present alien within the United States. Some would also amend the presentwaiver authority concerning document requirements for arriving nationals from foreign contiguouscountries or adjacent islands, so that such waivers may only be granted (in non-emergency situations)through a joint determination by the Secretaries of DHS and DOS on the basis of reciprocity, andthen only if the arriving foreign national is in possession of identification documents deemed secureby the Secretary of DHS.

Smuggling and Trafficking. Alien smuggling andhuman trafficking share common elements and attributes but are different offenses. In some respectshuman trafficking is an aggravated form of alien smuggling, since during both offenses, aliens aresmuggled (brought illegally) into the country. Those who are smuggled are free when they reachtheir final destination, while those who are trafficked find themselves in a servitude arrangement thatdoes not end after they are smuggled to their final destination. ICE as the lead agency collaborateswith the Department of State and the Federal Bureau of Investigation (FBI) as well as other federaland local law enforcement agencies on investigations into alien smuggling and trafficking whichinclude an overseas investigative component. Some contend that targeting major smuggling andtrafficking organizations for investigation and prosecution reduces illegal entries into the UnitedStates. Moreover some are concerned that terrorists may use human smuggling networks toclandestinely enter the United States.

In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress established theinteragency Human Smuggling and Trafficking Center for the purposes of combating terrorist travel,migrant smuggling and trafficking in persons. At issue may be the need for other tools to combatsmuggling such as increasing the criminal penalties for alien smuggling. In addition, ICE has beendeveloping a strategy to address alien smuggling and human trafficking at the internationallevel. (13) At this timethere is little published on the new strategy, and it is unclear how the strategy will integrate theexpertise and personnel of multiple law enforcement agencies. Furthermore, the authorization forthe Victims of Trafficking and Violence Protection Act of 2000, (14) which contains programsto help prevent trafficking and to aid victims, expires in FY2005.

Asylum and Expedited Removal. The UnitedStates has long held to the principle that it will not return a foreign national to a country where hislife or freedom would be threatened. Aliens seeking asylum must demonstrate a well-founded fearthat if returned home, they will be persecuted based upon one of five characteristics: race, religion,nationality, membership in a particular social group, or political opinion. In addition, regulationsimplementing the United Nations Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment (hereafter referred to as the Torture Convention) prohibit thereturn of any person to a country where there are "substantial grounds" for believing that he or shewould be in danger of being tortured. An immigration officer, however, can summarily exclude,through a process known as expedited removal, an alien arriving without proper documentation oran alien present in the United States for less than two years, unless the alien expresses a fear ofpersecution.

Although the United States Citizenship and Immigration Services Bureau (USCIS) and theDepartment of Justice's Executive Office for Immigration Review (EOIR) are clearly the leadagencies in asylum policy, the first contacts many asylum seekers have with the U.S. governmentare with Border and Transportation Security (BTS) officials. Some have expressed concern that theCBP inspectors, U.S. Border Patrol officers, and Immigration and Customs Enforcement (ICE)agents are not adequately trained in asylum policy and other humanitarian forms of immigrationrelief. Others point out that the CBP inspectors, U.S. Border Patrol officers, and ICE agents followthe policy and procedural guidelines to ensure that aliens who express a fear of returning home aregiven the opportunity to have their fears considered by an asylum officer and/or an immigrationjudge.

Although there are many who would revise U.S. asylum law and policy, those advocatingchange have divergent perspectives. Some express concern that potential terrorists could use asylumas an avenue for entry into the United States, especially aliens from trouble spots in the Mideast,northern Africa and south Asia. Others maintain that current law does not offer adequate protectionsfor people fleeing human rights violations. Some state that -- given the religious, ethnic, and politicalviolence in various countries around the world -- it is becoming more difficult to differentiate thepersecuted from the persecutors. At the crux is the extent an asylum policy forged during the ColdWar can adapt to a changing world and the war on terrorism.

Conferees on the intelligence reform law enacted by the 108th Congress droppedHouse-passed provisions to revise asylum and expedited removal, and these options are expectedto be considered early in the 109th Congress. Some proponents of these revisions would expand theclass of aliens subject to expedited removal without further hearing or review, by increasing the priorcontinuous U.S. physical presence required for exemption from such removal from two years to fiveyears. Some also would restrict access to an interview with an asylum officers by those aliens inexpedited removal who are seeking asylum to those aliens who have been physically present in theUnited States for less than a year. Other legislative options would raise evidentiary standards forasylum.

IDENT/IAFIS Database Integration. The currentproject underway to integrate CBP's Automated Biometric Identification System (IDENT) and theFederal Bureau of Investigation's (FBI's) Integrated Automated Fingerprint Identification System(IAFIS), has recently been of significant concern to Congress, and will likely remain a concern intothe 109th Congress. The USBP uses IDENT to identify and track illegal aliens. IDENT combinesa digital photograph, two flat fingerprints, and biographical data into two databases which can beused to track repeat entrants and better identify criminal aliens. The FBI's IAFIS is an automated 10rolled fingerprint matching system linked to a database that holds over 40 million records, includingwanted persons, stolen vehicles, deported felons, gang members, and terrorists. Integration of thetwo systems is widely regarded as a vital component of tightening border security, as it would allowfrontline CBP inspectors and USBP agents to access the FBI's criminal database in order to establishwhether apprehended aliens have outstanding warrants or criminal histories. However, integrationhas proved difficult for various technical and organizational reasons. The conference report to theFY2005 DHS Appropriations Act ( P.L. 108-334 ), H.Rept. 108-774 , adopts reporting requirements:requiring DHS to fund the full cost of achieving real time interoperability between the two systemsusing the US-VISIT appropriation; directing the Under Secretary of BTS to report within 90 daysof enactment on the status of the integration effort including steps that will be taken to integrateIAFIS into IDENT, needed funding, and a timetable for full integration.

Cargo and Transportation-Related Border Control

Cargo and Container Security. Cargo andcontainer security remain issues of concern. CBP is advancing its cargo security strategy primarilythrough two initiatives: the Customs-Trade Partnership Against Terrorism (C-TPAT), and theContainer Security Initiative (CSI). C-TPAT is a public-private partnership aimed at securing thesupply chain from point of origin through entry into the U.S. CSI is a CBP program stationing CBPofficers in foreign sea ports to target and inspect marine containers before they are loaded ontoU.S.-bound vessels. The Government Accountability Office (GAO) published a report concerningboth the CSI and C-TPAT programs. GAO credited CBP for quickly rolling out the two programsbut noted that CBP needs to develop: systematic human capital plans; performance measures foraccountability and program achievement; and a long-term strategic plan to successfully manage thetwo programs. (15) TheHouse report ( H.Rept. 108-541 ) attached to the House-passed version of the DHS Appropriationsbill requested a report from CBP detailing the implementation plan for CSI, and encourages CBPto develop an integrated network including "all relevant route, inspection, shipment, and intrusiondata."

The conference report ( H.Rept. 108-774 ) to the DHS Appropriations Act directs the UnderSecretary of BTS to submit a comprehensive report by February 8, 2005 which should include(among other items): the steps DHS has taken to enhance container security and which BTS entityhas primary responsibility for implementing cargo container security measures; what steps this entitywill take to implement future cargo security standards, policies, procedures, or regulations; and thesecurity of in-bond shipments. (16) Questions for Congress include how the CSI and C-TPATprograms can be integrated into a wider screening network; and how to maintain the security ofshipments once they enter the country and are transported from the ports of entry to their finaldestination within the country. Also, CSI focuses on containers; and there are other forms of marinecargo including liquid or dry bulk; break bulk; and vehicles. Congress may wish to consider if thereshould be some type of CSI-type pre-inspection of these cargoes as well.

Targeting and Risk Assessment. CBP uses a riskassessment tool, the Automated Targeting System(ATS) to focus inspections on high-risk shipments.ATS automatically sorts shipments according to risk based on specific weighted rule sets, andassigns each shipment a risk score. The higher the score, the more attention a shipment requires, andthe greater the chance it will be targeted for inspection. While many observers note the importanceof developing sophisticated targeting mechanisms others have raised concerns, including GAOwhich recently noted that while CBP's targeting strategy incorporated some elements of riskmanagement, it lacked a comprehensive set of criticality, vulnerability and risk assessments, anddoes not follow certain recognized modeling practices. (17) Potential questions for Congress concerning risk assessmentsin general include the efficacy of the targeting mechanisms like the ATS; how this particularmechanism might be integrated into a broader screening network; the potential applicability of thismechanism to screening domestically shipped cargo; and how it might be paired with randominspections to identify potential gaps.

Cargo Inspection Technology. CBP uses a varietyof inspection technologies to assist inspectors in detecting and identifying suspicious cargo. Thesetechnologies are referred to generally as non-intrusive inspection (NII) technology, and include bothgamma-ray (such as the Vehicle and Cargo Inspection System), (VACIS) and x-ray systems, amongothers. CBP also uses radiation detection devices, both personal (PRDs) and large-scale radiationportal monitors (RPMs). Potential questions for Congress regarding these technologies include howthey could possibly be integrated with a broader network of screening capabilities not just at portsof entry, but possibly used to improve the screening of domestically shipped cargoes; and howinformation gleaned from security risks identified during the screening of goods might beincorporated into a larger screening network; how these technologies might be inserted into the flowof cargo through ports and transportation nodes to screen more goods; and how best to systematicallydevelop and deploy the next generation of cargo inspection technology.

Privatized Airport Screening Program. Ofpossible issue to Congress is the number of airports that may request to opt-out of the federalscreener program after November 18, 2004. The conference report ( H.Rept. 108-774 ) to the FY2005DHS Appropriations Act requires TSA to report on: cost savings resulting from opt-out; the numberand location of each airport applying for participation under the opt-out program; the decision by theAdministrator on the application; if an application by an airport is not accepted, the reasons why theapplication was not approved; and the results of the competitive acquisition for contract screeningservices at those airports whose applications have been approved.

Computer Assisted Passenger Pre-screening System (CAPPS) and"Secure Flight". Currently, air carriers are responsible for implementing the CAPPSsystem at airports. TSA had been developing a more advanced passenger pre-screening systemcalled CAPPS-II. However, due to mounting privacy concerns and operational problems, TSAannounced it was scrapping plans to implement CAPPS-II in August 2004. (18) Instead, TSAAdministrator David M. Stone testified that CAPPS-II is being "reshaped and repackaged" to addressthe privacy issues. (19) TSA recently announced the replacement program, entitled "Secure Flight," which will differ fromCAPPS II because it focuses on identifying terrorists rather than on serving other law enforcementpurposes. (20) One of the9/11 Commission Report recommendations suggested that TSA take over the existing CAPPSsystem from the airlines until whatever program that replaces it becomes operational. This wouldprobably add to TSA screener workload and may result in an increased need for funds within TSA. Possible issues for Congress include whether current appropriations levels are adequate for the"reshaping" of CAPPS-II into the recently announced "Secure Flight" program, and whether morefunds should be appropriated for TSA if in fact the agency takes over the implementation of theexisting CAPPS system from air carriers.

The conferees to the FY2005 DHS Appropriations Act ( P.L. 108-334 ) agreed to provide $35million for Secure Flight and noted that an additional $10 million is provided under a separate TSAaccount for crew vetting. The conferees note their concern that 90 days may not be sufficient to plan,test, and analyze the system before its full implementation. Therefore, the conferees encourage theTSA to focus first on getting watchlists operational and expect TSA to cooperate with GAO in itsreview of Secure Flight. The conferees further note that DHS is proposing to check all passengersusing the new Secure Flight system as recommended by the 9/11 Commission.

Subtitle B of Title IV of The Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L.108-458 ) essentially implements the 9/11 Commission recommendations to improve passengerprescreening for both domestic and international flights, and improve the use of 'no-fly' and'automatic selectee' lists while ensuring that passenger prescreening measures do not violate privacyor civil liberties.

Explosive Detection Systems (EDS) and Explosive TraceDetection (ETD). Explosive detection remains an issue of concern to Congress. The FY2005 DHS Appropriations Act provided $180 million for the purchase of EDS/ETDmachines for screening checked baggage. Subtitle B of the Intelligence Reform and TerrorismPrevention Act of 2004 contains a provision implementing the 9/11 Commission recommendationto give priority attention to screening passengers and their carry-on baggage for explosives. Further,this subtitle also contains provisions, requiring TSA to develop a plan for implementing enhancedexplosive detection equipment. The 9/11 Commission recommended that the TSA expediteinstallation of in-line baggage screening systems. Potential issues for Congressional debate couldinclude the adequacy of current funding levels, and the equity of cost-sharing for in-line EDSintegration.

Air Cargo Security. Air cargo security remainsan issue of significant concern to Congress. Most recently, this issue was addressed in the 9/11Commission recommendations, the FY2005 DHS Appropriations Act, and the Intelligence reformlegislation. P.L. 108-334 required (among other things) that TSA: "research, develop, and procurecertified systems to inspect and screen air cargo on passenger aircraft at the earliest date possible,to enhance the known shipper program, and to triple the percentage of cargo inspected on passengeraircraft. TSA shall require cargo screened on passenger aircraft to meet the tripling threshold asmeasured by the average percentage of cargo inspected per day, per airline, per airport." Additionally, the conferees (in H.Rept. 108-774 ) direct TSA to work more aggressively to strengthenair cargo security by: strengthening the known shipper program to include regular checks; workingwith indirect carriers to ensure their compliance with security directives; and validating indirectcarriers' security measures where the carriers consolidate freight and transport it to passenger andall cargo aircraft. Subtitle C of Title IV of the Intelligence Reform and Terrorism Prevention Actof 2004 concerns air cargo security and requires TSA to develop better technologies for air cargosecurity; authorizes funding for equipment, research and development; requires DHS to finalize itsair cargo requirements within eight months; and requires a pilot program using blast-resistantcontainers for suspicious cargo. Issues for Congress could include further debate over newapproaches to air cargo security; levels of physical inspection of cargo; and improving efforts toidentify and screen cargo.

Non-Aviation Transportation Security. In theimmediate aftermath of the 9/11 attacks much focus understandably has been placed on aviationsecurity issues. However, after the March 2004 train bombings in Madrid, Spain, attention hasturned to the security of non-aviation modes of transportation. For instance, P.L. 108-334 , theFY2005 DHS Appropriations Act provided specific funding amounts for TSA, and several otherDHS offices, for rail security. TSA is the federal agency tasked with ensuring the security of thenation's transportation systems, and is responsible for the development of the national transportationsecurity plan. The IRTPA addresses one of the 9/11 commission recommendations by requiring theSecretary of DHS, jointly with the Secretary of Transportation, to develop and implement a nationalstrategy for transportation security which shall include (among other items): the identification andevaluation of all transportation assets in the country; risk-based priorities and realistic deadlines foraddressing security needs; and a forward-looking strategic plan setting forth the roles andresponsibilities of federal, state, regional, local authorities as well as private entities. The initialstrategy is to be delivered to Congress no later than April 15, 2005. Potential issues for Congresscould include the division of responsibilities for transportation security; how the nationaltransportation security plan will be integrated with existing plans and security initiatives such as theAir Cargo Strategic plan, administered by TSA; the maritime security plans required by the MaritimeTransportation Security Act, administered by the Coast Guard; and the forthcoming National CargoSecurity Strategy, currently being developed by DHS.

Coast Guard Deepwater Program. The Deepwaterprogram is a planned 22-year, multibillion-dollar project to replace or modernize 93 aging CoastGuard ships and 207 aging Coast Guard aircraft. The Deepwater program presents several potentialissues for Congress. One potential issue concerns the mission requirements to be met by theprogram, which were established in the late 1990s and reflect a pre-9/11 understanding of the CoastGuard's future mission requirements. A 2004 RAND Corporation report on the Deepwater programstates that the baseline Deepwater program "will not provide the USCG with adequate assets andcapabilities to fulfill demands for traditional missions and emerging responsibilities. To satisfy thesedemands, the USCG will need the capabilities of twice the number of cutters and 50% more airvehicles than it has been planning to acquire over the next two decades." The Coast Guard isreassessing the program's mission requirements to take post-9/11 mission demands into account. Coast Guard officials have stated that existing deepwater-capable assets are wearing out morequickly than anticipated, suggesting that new assets might need to be procured sooner than planned.

Coast Guard Legacy and Replacement Assets. Both the Senate and House Committee reports to the FY2005 DHS Appropriations bill voicedconcern over the condition of Coast Guard legacy assets. The Senate cited a GAO report whichnoted that Coast Guard assets are being used 40% more intensively than originally anticipated whenthe Deepwater program was conceived, resulting in an accelerated deterioration. The Senate reportnoted that the Coast Guard is expending more Deepwater funding on maintaining legacy assets andless on acquiring replacement assets. The House Committee, conversely, is concerned that the CoastGuard is having problems maintaining its legacy assets due to a perceived need to expend allavailable funding on Deepwater procurement. The House Committee requires the Coast Guard toreport, within 30 days of enactment of the Appropriations Act, its plans for maintenance of all legacyvessels and aircraft, including the entity responsible for the maintenance and the estimated costs. Further, the Coast Guard is directed to submit quarterly reports on its legacy maintenance planbeginning with the submission of the President's FY2006 budget. The conferees adopted this HouseCommittee report language.

Coast Guard -- Automatic Identification System. A potential issue for Congress concerns the Automatic Identification System (AIS) -- avessel-tracking system that the Coast Guard wants to implement as a key part of its strategy forachieving maritime domain awareness (MDA) at each major port. AIS is a system that will identifythe ship, its size, and its cargo before it enters an American seaport. Questions include theavailability of a radio frequency needed for AIS and whether the system as currently planned willadequately cover all categories of ships that might pose a threat to U.S. homeland security. TheFY2005 DHS Appropriation Act ( P.L. 108-334 ) provides $24 million for AIS.

Non-Homeland Security Missions of the CoastGuard. A key potential issue is whether the Coast Guard's resources are sufficientto adequately perform both its homeland and non-homeland security missions (fisheries enforcement,marine environmental protection, and search and rescue, for example). The terrorist attacks ofSeptember 11, 2001, increased Coast Guard requirements for homeland-security missions withoutdirectly reducing requirements for other missions. After September 11, 2001, the Coast Guardsignificantly increased homeland security operations while reducing operations in other missions. GAO, in reports and testimony on this topic, have noted the reduced number of Coast Guardoperating hours devoted to non-homeland security missions, and have expressed concerns regardingthe Coast Guard's ability to link application of resources to performance levels achieved for variousmissions.

Staffing. Staffing of primary border agencies maycontinue to be of concern to Congress. The conference report ( H.Rept. 108-774 ) to the FY2005DHS Appropriations Act requires CBP to submit a comprehensive staffing plan immediately, andto submit an updated plan no later than 90 days after enactment. The Intelligence Reform andTerrorism Prevention Act (IRTPA), contains provisions authorizing, subject to the availability ofappropriations, no less than 2,000 full-time Border Patrol agents, and 800 full-time Immigration andCustoms Enforcement Inspectors, in fiscal years 2006-2010. With regard to the authorized increasein Border Patrol agents, the IRTPA further stipulates that no less than 20% of the net increase inagents shall be assigned to the northern border in each fiscal year.

Appendix: Provisions Relating to Border and Transportation Security in the 9/11 Commission Report, Intelligence Reform Bill, and HSPD-11

This appendix provides summaries of the BTS -related provisions of the 9/11 Commissionrecommendations, (21) the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, and a summary ofHSPD-11. HSPD-11 is the Administration's response to one of the 9/11 Commissionrecommendations, and significant portions of the IRTPA similarly reflect these recommendations. Oversight of the changes made by the IRTPA, and legislative activity surrounding those 9/11Commission recommendations that were not included are likely to be of interest to the 109thCongress.

9/11 Commission Recommendations

The 9/11 commission made numerous recommendations relating to border and transportationsecurity. These recommendations include (but are not limited to the following):

the United States should combine terrorist travel intelligence, operations, andlaw enforcement in a strategy to intercept terrorists, find terrorist travel facilitators and constrainterrorist mobility;

the U.S. border security system should be integrated into a larger network ofscreening points that include our transportation system and access to vital facilities, such as nuclearreactors;

the President should direct the Department of Homeland Security to lead theeffort to design a comprehensive screening system, addressing common problems and settingcommon standards with systematic goals in mind (see the summary of HSPD-11below);

the Department of Homeland Security, properly supported by Congress, shouldcomplete, as quickly as possible, a biometric entry-exit system, including a single system forspeeding qualified travelers, [i]t should be integrated with the system that provides benefits toforeigners seeking to stay in the United States;

the U.S. government ... should do more to exchange terrorist information withtrusted allies, and raise U.S. and global border security standards for travel and border crossing overthe medium and long term through extensive international cooperation;

the federal government should set standards for the issuance of birthcertificates and sources of identification, such as drivers licenses;

the U.S. government should identify and evaluate the transportation assets thatneed to be protected, set risk-based priorities for defending them, select the most practical andcost-effective ways of doing so, and then develop a plan, budget, and funding to implement theeffort, [t]he plan should assign roles and missions to relevant authorities (federal, state, regional, andlocal) and to private stakeholders;

improved use of "no-fly" and "automatic selectee" lists should not be delayedwhile the argument about a successor to CAPPS continues, [t]his screening function should beperformed by TSA, and it should utilize the larger set of watchlists maintained by the federalgovernment, [a]ir carriers should be required to supply the information needed to test and implementthis new system;

the TSA and the Congress must give priority attention to improving the abilityof screening checkpoints to detect explosives on passengers, ... each individual selected for specialscreening should be screened for explosives; and

the TSA should conduct a human factor study ... to understand problems inscreener performance and set attainable objectives for individual screeners and for the checkpointswhere screening takes place.

HSPD-11

The President issued Homeland Security Presidential Directive (HSPD)-11 on August 27,2004. (22) This directivewas issued in response to one of the 9/11 Commission recommendations. HSPD-11 concerns"comprehensive terrorist-related screening procedures" which are defined in the directive to mean: "the collection, analysis, dissemination, and use of information related to people, cargo,conveyances, and other entities and objects that pose a threat to homeland security." HSPD-11 statesthat it is the policy of the U.S. to enhance terrorist-related screening through comprehensive,coordinated procedures; while safeguarding legal rights, freedoms, civil liberties, and informationprivacy; in a manner that facilitates the efficient movement of people, cargo, conveyances andassociated activities of commerce. HSPD-11 further states that this comprehensive and coordinatedapproach is to be implemented in "immigration, law enforcement, intelligence, counterintelligence,and protection of border, transportation systems, and critical infrastructure."

HSPD-11 required the Secretary of Homeland Security (in coordination with the heads of allthe appropriate departments) to submit to the President a report outlining a strategy to enhance theeffectiveness of terrorist-related screening activities, and developing comprehensive, coordinated,and systematic screening procedures. This report was submitted to the President on November 9,2004. (23) HSPD-11required an additional report (due November 24, 2004) describing a 'prioritized investment andimplementation plan' for the policies and activities outlined by the first report. Further, the Secretaryof DHS is required to provide a status report on the implementation of the plan six months after theissuance of the directive (February of 2005).

Intelligence Reform and Terrorism Prevention Act of 2004

The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) has numerousBTS-related provisions, many of which embody some of the recommendations made by the 9/11Commission. Title IV of the act relates to Transportation Security. Subtitle A of Title IVimplements the 9/11 commission recommendations by requiring the Secretary of DHS, jointly withthe Secretary of Transportation, to develop and implement a national strategy for transportationsecurity.

Subtitle B of Title IV implements the 9/11 Commission recommendations to improvepassenger prescreening for both domestic and international flights, and improve the use of no-fly and automatic selectee lists while ensuring that the watchlists do not violate privacy or civil liberties. Subtitle B also contains a provision implementing the 9/11 Commission recommendation to givepriority attention to screening passengers and their baggage for explosives. Further, this subtitle alsocontains provisions: requiring TSA to develop a plan for implementing enhanced explosive detectionequipment; preserving the anonymity of federal air marshals; improving screener performance;enhancing in-line baggage screening; improving the security of pilot licenses; improving biometrictechnology and technology to protect against the threat of shoulder fired missiles.

Subtitle C of Title IV concerns air cargo security and: requires TSA to develop bettertechnologies for air cargo security; authorizes funding for equipment, research and development;requires DHS to finalize its air cargo requirements within eight months; and requires a pilot programusing blast-resistant containers. Subtitle D of Title IV concerns maritime security and requires TSAto begin screening cruise ship passengers and crew against consolidated terrorist databases within180 days, and requires maritime-security plans to be submitted in a timely fashion.

Title V contains provisions relating to border protection, immigration and visa matters. Subtitle A authorizes pilot programs on the northern and southern borders which would testadvanced technologies to increase border security between ports of entry. Subtitle B requires theSecretary of DHS to submit a plan to the President and the Congress to use remotely piloted aircraftto surveil the southwest border. This subtitle also authorizes funding to implement this plan as apilot program. Subtitle B also requires the Secretary of DHS to increase staffing each year duringfiscal years 2006-2010 (subject to the availability of appropriations) by the following amounts: thenumber of Border Patrol agents by not less than 2,000 each year; the number of Immigration andCustoms Enforcement agents by not less than 800 agents per year; and the number of detention bedspaces by not less than 8,000 per year. Subtitle C contains provisions: requiring in-personinterviews of certain applicants for nonimmigrant visas; requiring applicants for nonimmigrant visasto completely and accurately provide information requested in the application; and making therevocation of a nonimmigrant visa grounds for removal. Subtitle D contains provisions concerningthe smuggling and harboring aliens, the deportation of aliens who receive military training from oron behalf of designated terrorist organizations. Subtitle E contains provisions concerning theinadmissibility and deportation of aliens who commit acts of torture, extrajudicial killings, or otheratrocities abroad.

Title VII is entitled the 9/11 Commission Implementation Act of 2004, and Subtitle Bcontains a number of BTS-related provisions. Subtitle B establishes the Human Smuggling andTrafficking Center, and an interagency program devoted to countering terrorist travel; and requirestraining improvements for border, consular, and immigration officers so they can better detectterrorist travel indicators. The provisions in Subtitle B also authorize an additional 150 consularofficers in each of the fiscal years 2006-2010; requires the Secretary of DHS in consultation with theDirector of the National Counter-Terrorism Center (NCC) to establish a program overseeing DHS'sterrorist travel responsibilities; and establishes a Visa and Passport Security Program within theBureau of Diplomatic Security at the Department of State. Further Subtitle B provisions call for theaccelerated deployment of the biometric entry-exit system, and for individuals entering into the U.S.to bear a passport or other citizenship document (including U.S. citizens, and visitors from Canadaand other Western Hemisphere countries). Subtitle B, also requires DHS to issue regulations onminimum identification standards for passengers boarding domestic flights; includes placing moreU.S. immigration experts at foreign airports, and increases the number of airports where U.S.-boundpassengers will be pre-inspected.