Issues in Homeland Security Policy for the 113th Congress
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Issues in Homeland Security Policy for the
113th Congress
(name redacted)
Analyst in Emergency Management and Homeland Security Policy
September 23, 2013
Congressional Research Service
7-....
www.crs.gov
R42985
CRS Report for Congress
Prepared for Members and Committees of Congress
Issues in Homeland Security Policy for the 113th Congress
Summary
With the 10th anniversary of the establishment of the Department of Homeland Security (DHS),
many observers have made a fresh assessment of where America’s homeland security enterprise
stands today. DHS is currently the third-largest department in the federal government, although it
does not incorporate all of the homeland security functions at the federal level. The definition of
homeland security remains unsettled, and questions about the effectiveness and efficiency of the
department have been raised since it was first proposed. Evolution of America’s response to
terrorist threats has continued under the leadership of different Administrations, Congresses, and
in a shifting environment of public opinion.
This report outlines an array of homeland security issues that may come before the 113th
Congress. After a brief discussion of the overall homeland security budget, the report divides the
specific issues into five broad categories:
•
Counterterrorism and Security Management,
•
Border Security and Trade,
•
Immigration,
•
Disaster Preparedness, Response, and Recovery, and
•
Departmental Management.
Each of those areas contains a survey of topics briefly analyzed by Congressional Research
Service experts. The information included only scratches the surface on most of these issues.
More detailed information can be obtained by consulting the CRS reports referenced herein, or by
contacting the relevant CRS expert.
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Issues in Homeland Security Policy for the 113th Congress
Contents
What Is Homeland Security? ........................................................................................................... 1
Homeland Security: Definitions and Security ........................................................................... 2
The Budget and Security ........................................................................................................... 3
DHS Appropriations ............................................................................................................ 4
Counterterrorism and Security Management ................................................................................... 5
The Transnational Trend of Terrorism ....................................................................................... 5
Homegrown Jihadist Terrorism ................................................................................................. 7
Cybersecurity........................................................................................................................... 10
Cyber Threats .................................................................................................................... 11
Legislative Branch Efforts to Address Cyber Threats ....................................................... 13
Executive Branch Actions to Address Cyber Threats........................................................ 13
Medical Countermeasures to Chemical, Biological, Radiological, and Nuclear
Terrorism .............................................................................................................................. 14
BioWatch: Detection of Aerosol Release of Biological Agents .............................................. 15
Continuity of Government Operations .................................................................................... 17
Federal Facility Security: Federal Protective Service ............................................................. 18
Food Defense ........................................................................................................................... 19
Security of Pipelines ................................................................................................................ 20
Security of Chemical Facilities................................................................................................ 22
Security of Wastewater and Water Utilities ............................................................................. 24
Transit Security .............................................................................................................................. 25
Border Security and Trade ............................................................................................................. 28
Southwest Border Issues.......................................................................................................... 28
Spillover Violence ............................................................................................................. 28
Illicit Proceeds and the Southwest Border ........................................................................ 30
Cross-Border Smuggling Tunnels ..................................................................................... 31
Cargo Security ......................................................................................................................... 32
Customs-Trade Partnership Against Terrorism (C-TPAT)................................................. 33
100% Scanning Requirement ............................................................................................ 34
Port of Entry (POE) Infrastructure and Personnel............................................................. 36
Domestic Nuclear Detection.................................................................................................... 37
Transportation Worker Identification Credential (TWIC) ....................................................... 38
Aviation Security ..................................................................................................................... 40
Explosives Screening Strategy for the Aviation Domain .................................................. 40
Risk-Based Passenger Screening ...................................................................................... 42
The Use of Terrorist Watchlists in the Aviation Domain ................................................... 43
Mitigating the Threat of Shoulder-Fired Missiles to Civilian Aircraft .............................. 44
Security Issues Regarding the Operation of Unmanned Aircraft ...................................... 45
Immigration ................................................................................................................................... 47
Immigration Inspections at Ports of Entry............................................................................... 47
Entry-Exit System ................................................................................................................... 49
Enforcement Between Ports of Entry ...................................................................................... 51
CBP Integrity ........................................................................................................................... 53
Disaster Preparedness, Response, and Recovery ........................................................................... 54
Disaster Assistance Funding .................................................................................................... 54
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Hurricane Sandy Recovery ...................................................................................................... 56
DHS State and Local Preparedness Grants .............................................................................. 58
Consolidation of DHS State and Local Programs ............................................................. 59
Firefighter Assistance Programs .............................................................................................. 60
Emergency Communications Infrastructure and Technology.................................................. 61
Presidential Policy Directive 8 and the National Preparedness System .................................. 62
Public Health and Medical Services ........................................................................................ 63
Potential Reauthorization of the Defense Production Act of 1950 .......................................... 64
Management Issues at DHS ........................................................................................................... 66
DHS Reorganization Authority ............................................................................................... 66
The Management Budget ........................................................................................................ 67
DHS Financial Management Reforms .............................................................................. 68
Headquarters Consolidation .............................................................................................. 70
Department of Homeland Security Personnel Issues............................................................... 71
Recruitment and Hiring of Highly Qualified Candidates .................................................. 71
Diversity of the Workforce ................................................................................................ 73
Employee Morale .............................................................................................................. 74
Acquisition .............................................................................................................................. 75
Acquisition Workforce ...................................................................................................... 75
Balanced Workforce Strategy (BWS)................................................................................ 76
Homeland Security Research and Development ..................................................................... 77
Tables
Table 1. Congressional Funding for Transit Security, FY2002-FY2012 ....................................... 27
Contacts
Author Contact Information........................................................................................................... 79
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What Is Homeland Security?
This question has dogged U.S. public policy debates for more than a decade. There is no statutory
definition of homeland security that reflects the breadth of the enterprise as currently understood.
Although there is a federal Department of Homeland Security, it is neither solely dedicated to
homeland security missions, nor is it the only part of the federal government with significant
responsibilities in this arena.
The Department of Homeland Security (DHS) was established by the Homeland Security Act of
2002 (P.L. 107-296), which was signed into law on November 25, 2002. The new department
was assembled from components pulled from 22 different government agencies and began
official operations on March 1, 2003. Since then, DHS has undergone a series of restructurings
and reorganizations to improve its effectiveness and efficiency.
Although DHS does include many of the homeland security functions of the federal government,
several of these functions or parts of these functions remain at their original executive branch
agencies and departments, including the Departments of Justice, State, Defense, and
Transportation. Not all of the missions of DHS are officially “homeland security” missions. Some
components have historical missions that do not directly relate to conventional homeland security
definitions, such as the Coast Guard’s environmental and boater safety missions, and Congress
has in the past debated whether FEMA and its disaster relief and recovery missions belong in the
department.
Some aspects of crime and justice could arguably be included in a broad definition of homeland
security. Issues such as the role of the military in law enforcement, monitoring and policing
transfers of money, human trafficking, explosives and weapons laws, and aspects of foreign
policy, trade, and economics have implications for homeland security policy.
Rather than trying to resolve the question of what is and is not homeland security, this report is
limited to topics that generally fall within the four mission study areas used to develop the
Quadrennial Homeland Security Review mandated by the Implementing Recommendations of the
9/11 Commission Act of 2007 (P.L. 110-53):
•
Counterterrorism and Security Management,
•
Border Security and Trade,
•
Immigration, and
•
Disaster Preparedness, Response, and Recovery.
A fifth section covering management issues at DHS rounds out the discussion. As each topic is
introduced, the lead expert and author of the section is listed, along with their contact
information. In many cases, a specific CRS report is highlighted as a source of more detailed
information.
The issues included in this report do not represent a comprehensive list of possible issues—they
represent a broad array of issues likely to be addressed by Congress in the coming months.
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Homeland Security: Definitions and Security
(name redacted), Analyst in Emergency Management and Homeland Security Policy
([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R42462, Defining Homeland Security: Analysis and
Congressional Considerations.
Twelve years after the 9/11 terrorist attacks, policy makers continue to debate the definition of
homeland security. Prior to 9/11, the United States addressed crises through the separate prisms of
national defense, law enforcement, and emergency management. 9/11 prompted a strategic
process that included a discussion about and the development of homeland security policy. Today,
this debate and development has resulted in numerous federal entities with homeland security
responsibilities. Presently, there are over 30 federal departments, agencies, and entities that have
homeland security responsibilities and receive annual appropriations to execute homeland
security missions.
Congress is responsible for appropriating funds for homeland security missions and priorities.
These priorities need to exist and to be clear in order for funding to be most effective. Presently,
homeland security is not funded based on clearly defined strategic priorities. In an ideal scenario,
there would be a consensus definition of homeland security, as well as prioritized missions, goals,
and activities. Policy makers could then use a process based on these defined priorities to
incorporate feedback and strategically respond to new facts and situations as they develop.
The debate over and development of homeland security definitions and priorities persists as the
federal government continues to issue and implement homeland security strategies. The first
homeland security strategy document issued by President George W. Bush’s Administration was
the 2003 National Strategy for Homeland Security, which was revised in 2007. In 2008, the
Department of Homeland Security (DHS) issued the Strategic Plan—One Team, One Mission,
Securing Our Homeland. The 2007 National Strategy for Homeland Security primarily focused
on terrorism, whereas the 2008 Strategic Plan included references to all-hazards and border
security. Arguably, the 2003 and 2007 National Strategies for Homeland Security addressed
terrorism due to such incidents as the 9/11 terrorist attacks and the attempted bombing of
American Airlines Flight 93 on December 22, 2001, whereas the 2008 Strategic Plan addressed
terrorism and all-hazards due to natural disasters such as Hurricane Katrina, which occurred in
2005. These documents have been superseded by several other documents which are now
considered the principal homeland security strategies.
The White House and DHS are the principle source of homeland security strategies. The current
primary national homeland security strategic document is the 2010 National Security Strategy,
which unlike the 2007 National Strategy for Homeland Security addresses all hazards and is not
primarily terrorism focused.1 DHS’s strategic documents are the 2010 Quadrennial Homeland
Security Review; the 2010 Bottom-Up Review; and the 2012 Strategic Plan. DHS states that these
documents are nested in the 2010 National Security Strategy and DHS is currently developing the
2014 Quadrennial Homeland Security Review.2 At the national level, the 2010 National Security
1
President Obama’s Administration specifically addresses terrorism and counterterrorism in the 2011 National
Strategy for Counterterrorism.
2
DHS states that it intends to issue the 2014 Quadrennial Homeland Security Review in late 2013 or early 2014.
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Strategy guides not just DHS’s activities, but also all federal government homeland security
activities. The development of national homeland security strategy will continue as the Obama
Administration and DHS develop and implement such strategies as the 2014 Quadrennial
Homeland Security Review and a potentially new National Security Strategy that the Obama
Administration may issue sometime in the next four years.
It has been argued that homeland security, at its core, is about coordination because of the
disparate stakeholders and risks.3 Many observers assert that homeland security is not only about
coordination of resources and actions to counter risks; it is also about the coordination of the
strategic process policy makers use in determining the risks, the stakeholders and their missions,
and the prioritization of those missions.
Without a general consensus on the literal and philosophical definition of homeland security,
achieved through a strategic process, some believe that there will continue to be the potential for
disjointed and disparate approaches to securing the nation. From this perspective, general
consensus on the homeland security concept necessarily starts with a consensus definition and an
accepted list of prioritized missions that are constantly reevaluated to meet risks of the homeland
security paradigm of the 21st century. The varied homeland security definitions and concepts
represented in the current national and homeland security strategy documents, however, may be
the result of a strategic process that has attempted to, in an ad hoc manner, adjust federal
homeland security policy to emerging threats and risks.
The Budget and Security
(name redacted), Analyst in Emergency Management and Homeland Security Policy
([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R43147, Department of Homeland Security: FY2014
Appropriations.
According to data from the Office of Management and Budget (OMB), the entire U.S.
government spent $564 billion (in nominal dollars) on “homeland security”—defined in law as
“those activities that detect, deter, protect against, and respond to terrorist attacks occurring
within the United States and its territories”4—in the 10 years after the 9/11 attacks. Such spending
peaked in FY2009 at $73.8 billion. The total budget request for homeland security activities for
FY2014 was $72.7 billion, a reduction of $1.1 billion from its high-water mark in nominal terms.5
By comparison, the budget for the Department of Homeland Security has grown from $31.2
billion in FY2003, when it did not have its own appropriations bill, to $59.9 billion in FY2012,
the last year for which we have complete budget data. Roughly $35.1 billion, or 58.6%, is
considered “homeland security” spending by OMB’s accounting under the above definition.
Some argue that the definition in law is too focused on explicit and directly attributable
counterterrorism activities compared to broader theories that have been part of the national
3
Donald F. Kettl, System Under Stress: Homeland Security and American Politics, 2nd ed, Washington, DC, CQPress,
2007, p. 82.
4
116 Stat. 2251. The law refers to a definition from OMB’s 2002 “Annual Report to Congress on Combatting
Terrorism.”
5
Office of Management and Budget, FY2014 Analytical Perspectives: Budget of the United States Government, p.415.
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discussion, which consider immigration and border control or disaster response as a part of
homeland security.
DHS Appropriations
In 2010, neither the House nor the Senate completed work on its version of a FY2011
appropriations bill for the Department of Homeland Security. For the first time, the department,
like the rest of the federal government that year, was funded through a long-term continuing
resolution. This resolution established funding levels for some components and activities, while
leaving others to be funded at FY2010 levels. The resolution overall gave the department much
less explicit direction from Congress than previous funding vehicles, in several cases leaving
decisions usually made by Congress about how to allocate limited funds in DHS’s hands.6 This
stood in contrast to previous years, when at least one body passed an appropriations bill funding
the department, and legislation providing specific appropriations was either passed on a standalone basis or as part of legislation including multiple bills. Just as importantly, in those years,
either a conference report or explanatory statement of the managers provided further direction to
the department on allocation of appropriated funds, oversight requirements, and other expressions
of congressional intent.
For both FY2012 and FY2013, DHS was funded through consolidated appropriations legislation,
which carried traditional levels of specific congressional direction for the department. The actual
level of budgetary resources available for the FY2013 budget year, however, was impacted by the
across-the-board cuts—known as sequestration—mandated by the Budget Control and Deficit
Reduction Act of 2011 (BCA). A combination of factors has therefore made the final funding
levels for FY2013 difficult to ascertain, including the facts that:
•
Some activities were legislatively exempt from sequestration;
•
Sequestration was implemented before the final appropriations legislation for
FY2013 was enacted, so the across-the-board reduction was taken against a
baseline determined by OMB, rather than the actual amount appropriated; and
•
Federal agencies have been encouraged to use the budgetary flexibility afforded
them—the ability to transfer funds between accounts and to reprogram funding
within accounts—to protect some activities deemed more important at the
expense of others.
Although an expenditure plan was submitted to Congress on April 26, 2013, which outlined the
post-sequester funding levels provided to DHS in the consolidated appropriations act for FY20137
before the exercise of budgetary flexibility, it did not include resources provided through
supplemental appropriations for disaster relief.8 No official statement of final FY2013 postsequester funding levels by program, project, and activity after the exercise of transfer and
6
For a fuller discussion of this issue, see CRS Report R41189, Homeland Security Department: FY2011
Appropriations, coordinated by (name redacted) and (name redacted).
7
P.L. 113-6. Analysis of the DHS appropriation in the act can be found in CRS Report R42644, Department of
Homeland Security: FY2013 Appropriations.
8
P.L. 113-2. Analysis of the supplemental appropriation for FY2013 can be found in CRS Report R42869, FY2013
Supplemental Funding for Disaster Relief.
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reprogramming authority has been made, and is not expected until the release of the FY2015
budget request.
As of this writing, the FY2014 annual appropriation for DHS is unresolved, as are the other 11
annual appropriations bills. For FY2014, the Administration’s total discretionary appropriations
request for DHS was $44.7 billion, including funding for disaster relief and overseas contingency
operations (which do not count against the budget allocation of the bill). Comparable calculations
for House-passed and Senate-reported DHS appropriations legislation show similar total funding
levels, $44.6 billion and $44.7 billion, respectively. However, the appearance of general
agreement on the rough funding level for the department should not be interpreted as a clear path
forward for the legislation. The full Senate has not taken up its version of the bill as of this
writing. There are significant differences in the policy direction and proposed funding levels that
make up the bill’s overall total, and the resolution of these differences and the precise funding
level itself is linked to the resolution of the FY2014 budget and the other FY2014 appropriations
bills.
Some sort of resolution on the size of the overall FY2014 budget will be necessary in order to
complete the appropriations process, either through annual appropriations legislation, continuing
resolutions, or a combination. The debate in FY2014 hinges in part on whether to continue with
the automatic cuts mandated in the BCA as amended. These reductions in the overall
discretionary spending cap total $91.6 billion, or roughly 8.7% of the total discretionary budget.
The limit on discretionary defense spending described by current law is $497 million, and $469
million for non-defense discretionary spending.9 Homeland security activities as defined in law
are funded with both defense and non-defense budget authority, although most of the DHS budget
falls in the non-defense category.
The current budget environment will likely present challenges to homeland security programs and
the department going forward, as ongoing capital investment efforts and staffing needs will
compete with the budget demands of the rest of the government for limited funds. The potential
impact of the changed budget environment is discussed at various points throughout this report.
Counterterrorism and Security Management
The Transnational Trend of Terrorism
John Rollins, Specialist in Terrorism and National Security ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R41004, Terrorism and Transnational Crime: Foreign
Policy Issues for Congress.
Terrorism remains a transnational threat that entails risks to U.S. global interests emanating from
and manifested in both the international and domestic environment. Central to U.S. efforts to
address transnational terrorism are actions taken to detect, deter, and defeat Al Qaeda. While
recognizing that numerous other terrorist groups may wish to harm U.S. global security interests,
the Administration primarily focuses on addressing threats from Al Qaeda, its affiliated
9
CBO, Final Sequestration Report for Fiscal Year 2013, March 2013, p. 4.
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organizations, and adherents to its violence-based philosophy. Speaking before the United
Nations Counterterrorism Committee, Daniel Benjamin, the Coordinator of the Office of the
Counterterrorism at the State Department, said “Rather than trying to combat directly every single
terrorist organization regardless of whether they have the intent or capability to ever attack the
U.S. or our citizens, President Obama’s counterterrorism strategy is (focused on) Al Qaeda and its
affiliates and adherents.”10 Understanding how Al Qaeda continues to evolve into a global entity
with a diverse set of actors and capabilities is central to formulating sound strategic policy and
overseeing its effective implementation.
The past few years have witnessed an increase in terrorist actions by entities claiming some
affiliation with or philosophical connection to Al Qaeda. Many of the past year’s global terrorist
attacks were conducted by individuals or small terrorist cells that received support ranging from
resources and training to having minimal connections, if any, with the terrorist groups to which
they claim allegiance. Some argue that recent U.S. counterterrorism successes may be reducing
the level of terrorist threats to the nation emanating from core Al Qaeda. U.S. officials suggest
that the killing of Osama bin Laden in May 2011 coupled with continuous post-9/11 global
military and intelligence counterterrorism actions have significantly degraded Al Qaeda’s ability
to successfully launch a catastrophic terrorist attack against U.S. global interests. Others suggest
that Al Qaeda has changed from an organization to a philosophical movement, making it more
difficult to detect and defeat. These security experts suggest that Al Qaeda and associated
affiliates will remain viable, due in part to the prospective security implications related to the
nation’s budgetary situation. Noted author on counterterrorism issues Daveed Gartenstein-Ross
argues that “The U.S. will not be (defeated) by Al Qaeda. But one can see that as the national debt
increases, we (will) have to make spending cuts and as Al Qaeda gets stronger in multiple
countries simultaneously—Somalia, Yemen, Pakistan, maybe Mali—suddenly you’re looking at
multiple theaters from where catastrophic strikes can be launched.”11 In August 2013 the Director
of the Federal Bureau of Investigation noted concerns associated with Al Qaeda inspired entities
also migrating to the countries of Tunisia, Libya, Algeria, Egypt, and Syria.12
The balance between ensuring effective counterterrorism policies and being mindful of the
current budget environment is not lost on senior Administration officials. In recent years John
Brennan, in his former capacity as the Assistant to the President for Homeland Security, now the
Director of the Central Intelligence Agency, has spoken of Osama bin Laden’s often stated
objective of pursuing global acts of terrorism against the nation’s interests with the desire to
“bleed [the U.S.] financially by drawing us into long, costly wars that also inflame anti-American
sentiment.”13
The terrorist threat to U.S. global interests will likely remain an important issue for the
Administration and remainder of the 113th Congress. Over the past few years numerous
individuals were arrested in the homeland and abroad for conducting attacks and planning
10
Remarks by Daniel Benjamin, Coordinator, State Department, Office of the Coordinator for Counterterrorism,
Before the United Nations Counterterrorism Committees, July 20, 2011.
11
Spencer Ackerman, “Even Dead, Osama Has a Winning Strategy,” Wired, July 20, 2011, http://www.wired.com/
dangerroom/2011/07/even-dead-osama-has-a-winning-strategy-hint-its-muhammad-alis/.
12
Pierre Thomas, Jack Cloherty, and Mike Levine, “Outgoing FBI Director Warns of Americans Traveling to Syria and
Bringing Terrorist Tactics Home,” ABC News, Aug. 22, 2013, Outgoing FBI Director Warns of Americans Traveling
to Syria and Bringing Terrorist Tactics Home.
13
Remarks by the John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, before the
Paul H. Nitze School of Advanced International Studies, June 29, 2011.
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terrorism-related activities directed at U.S. national security interests. All of the attacks—
successful and unsuccessful—were of a transnational dimension and ranged from a lone shooter
who appears to have become radicalized over the Internet to terrorist organizations wishing to use
airliners as platforms for destruction to individuals attempting to detonate large quantities of
explosives in symbolic areas frequented by large groups of people.
Thus far the 113th Congress undertook efforts, largely through hearings, to better understand the
nature of terrorism in various geographic regions and assess the effectiveness of U.S. and
partnering nations’ counterterrorism efforts. Programs and policies that the 113th Congress have
reviewed include public diplomacy efforts; imposition of sanctions; terrorism financing rules; the
nexus between international crime, narcotics, and terrorism; and the relationship between
domestic and international terrorism activities. The 113th Congress may continue to assess the
Obama Administration’s counterterrorism-related strategies, policies, and programs to ascertain if
additional guidance or legislation is required. These assessments will likely entail considerations
of how best to balance perceived risks to U.S. global security interests with concerns about the
long-term fiscal challenges facing the nation.
Homegrown Jihadist Terrorism14
(name redacted), Specialist in Organized Crime and Terrorism ([redacted]@crs.loc.gov,
7-....)
For more information, see CRS Report R41416, American Jihadist Terrorism: Combating a
Complex Threat.
CRS estimates that, since May 2009, arrests have been made in 50 homegrown jihadist15 terrorist
plots by American citizens or legal permanent residents of the United States as part of a muchdiscussed apparent uptick in terrorist activity in the United States.16 Three of these plots resulted
in attacks—the bombing of the 2013 Boston Marathon allegedly committed by Tamerlan and
Dzhokhar Tsarnaev; U.S. Army Major Nidal Hasan’s assault at Fort Hood in Texas; and
Abdulhakim Muhammed’s shooting at the U.S. Army-Navy Career Center in Little Rock, AR—
that produced 17 deaths.17 By comparison, in more than seven years from the September 11,
2001, terrorist strikes (9/11) through May 2009, there were 21 such plots.18 Two resulted in
attacks, and never more than six occurred in a single year (2006).19 The apparent spike in such
14
CRS does not presume the guilt of indicted individuals in pending federal cases.
For this report, “homegrown” describes terrorist activity or plots perpetrated within the United States or abroad by
American citizens, legal permanent residents, or visitors radicalized largely within the United States. “Jihadist”
describes radicalized Muslims using Islam as an ideological and/or religious justification for belief in the establishment
of a global caliphate—a jurisdiction governed by a Muslim civil and religious leader known as a caliph—via violent
means. Jihadists largely adhere to a variant of Salafi Islam—the fundamentalist belief that society should be governed
by Islamic law based on the Quran and adhere to the model of the immediate followers and companions of the Prophet
Muhammad.
16
In a January 13, 2013, report, CRS listed 63 plots and attacks by homegrown jihadists that occurred between
September 11, 2001, and December 2012. The number has risen since then, as additional plots occurred after December
2012. See CRS Report R41416, American Jihadist Terrorism: Combating a Complex Threat, by (name redacted).
Hereinafter: Bjelopera, American Jihadist.
17
In addition, the Tsarnaevs also allegedly killed a police officer after the Boston Marathon bombing.
18
For more information on these attacks see Appendix A in Bjelopera, American Jihadist.
19
The two attacks between 9/11 and May 2009 involved Hasan Akbar and Mohammed Reza Taheri-Azar. On March
(continued...)
15
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activity after May 2009 suggests that at least some Americans—even if a tiny minority—are
susceptible to ideologies supporting a violent form of jihad. Most of the homegrown plots after
May 2009 likely reflect a trend in jihadist terrorist activity away from schemes directed by core
members of significant terrorist groups such as Al Qaeda.
The Threat: Four Key Themes
Homegrown violent jihadist activity since 9/11 defies easy categorization. CRS analysis of the
terrorist plots and attacks since 9/11 suggests four broad themes:
•
Various Endgames: Plots have involved individuals interested in a variety of
ways to harm U.S. interests. Some individuals focused on becoming foreign
fighters in conflict zones, such as Somalia. Others planned attacks using
explosives, incendiary devices, or firearms. Yet others incorporated multiple,
unspecific, or unique tactics. Finally, outside of the post-9/11 violent plots,
additional individuals intended only to fund or materially support jihadist
activities.
•
Little Interest in Martyrdom: A minority of homegrown jihadists clearly
exhibited interest in killing themselves while engaged in violent jihad.
•
Success of Lone Wolves: Individuals acting alone, so-called “lone wolves,”
conducted all four successful homegrown attacks since 9/11.
•
Divergent Capabilities: The operational capabilities of participants diverge
greatly. Some evinced terrorist tradecraft such as bomb-making skills. Others
appeared to be far less experienced.
Countering the Threat
The Obama Administration has acknowledged the significance of the homegrown jihadist threat
in two of its recent strategy documents. In June 2011 it announced its National Strategy for
Counterterrorism.20 The strategy focuses on Al Qaeda, its affiliates (groups aligned with it), and
its adherents (individuals linked to or inspired by the terrorist group).21 John Brennan, at the time
President Obama’s top counterterrorism advisor, publicly described the strategy as the first one
“that designates the homeland as a primary area of emphasis in our counterterrorism efforts.”22
(...continued)
23, 2003, two days after the U.S. invasion of Iraq, U.S. Army Sergeant Akbar killed two U.S. Army officers and
wounded 14 others at U.S. Army Camp Pennsylvania in Kuwait, 25 miles from the Iraq border. On March 3, 2006,
Taheri-Azar, a 22-year-old naturalized American citizen from Iran, drove his sport utility vehicle (SUV) into a crowd at
The Pit, a popular student gathering spot at the University of North Carolina at Chapel Hill. The SUV struck and
injured several people.
20
White House, National Strategy for Counterterrorism, June 2011, http://www.whitehouse.gov/sites/default/files/
counterterrorism_strategy.pdf. Hereinafter: National Strategy.
21
Ibid, p. 3.
22
Mathieu Rabechault, “U.S. Refocuses on Home-Grown Terror Threat,” AFP, June 29, 2011; Karen DeYoung,
“Brennan: Counterterrorism Strategy Focused on al-Qaeda’s Threat to Homeland,” Washington Post, June 29, 2011.
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In 2011, the Obama Administration also released a strategy for combating violent extremism.23 It
revolves around countering the radicalization of all types of potential terrorists. As such, the
radicalization of violent jihadists falls under its purview. The strategy’s domestic focus includes
philosophical statements about the importance of protecting civil rights, federal cooperation with
local leaders in the private and public sectors, and the insistence that the strategy does not center
solely on fighting one particular radical ideology.24
Radicalization
Radicalization has been described as the exposure of individuals to ideological messages and the movement of those
individuals from mainstream beliefs to extremist viewpoints.25 Others define it more simply, as changes in belief and
behavior to justify intergroup violence and personal or group sacrifice to forward specific closely held ideas.26 The
United Kingdom’s “Prevent” counter-radicalization strategy defines radicalization as “the process by which a person
comes to support terrorism and forms of extremism leading to terrorism.”27 The Obama Administration’s counterradicalization strategy frames its discussion around “violent extremists,” which it defines as “individuals who
support or commit ideologically-motivated violence to further political goals.”28
While the concept of “radicalization” and its possible end result of “terrorism” are certainly related, an important
distinction between the terms exists as they relate to the threshold of U.S. law enforcement interest and action.
This is because Americans have the right under the First Amendment to adopt, express, or disseminate ideas, even
hateful and radical ones. But when radicalized individuals mobilize their views (i.e., move from a radicalized
viewpoint to membership in a terrorist group, or to planning, materially supporting, or executing terrorist activity),
then the nation’s public safety and security interests are activated.
In the post-9/11 environment, the public expects law enforcement to disrupt terrorist plots before
an attack occurs. This has led authorities to adopt a preventive policing approach that focuses not
just on crime that has occurred, but on the possibility that a crime may be committed in the future.
In this context, a major challenge for federal law enforcement, particularly the Federal Bureau of
Investigation (FBI), is gauging how quickly and at what point individuals move from radicalized
beliefs to violence so that a terrorist plot can be detected and disrupted. A 2008 revision to the
Attorney General’s Guidelines for Domestic Federal Bureau of Investigation Operations was
intended to be helpful in this regard, streamlining FBI investigations and making them more
proactive. The revision permits the bureau to conduct assessments of individuals or groups
without factual predication.29 However, the new guidelines have generated some controversy.
23
White House, Empowering Local Partners to prevent Violent Extremism in the United States, August 2011,
http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf.
24
For more information on the strategy, see CRS Report R42553, Countering Violent Extremism in the United States,
by (name redacted). Eileen Sullivan, “New White House Strategy to Hit Violent Extremism,”
Associated Press,
August 3, 2011.
25
Royal Canadian Mounted Police, National Security Criminal Investigations, Radicalization: A Guide for the
Perplexed, Canada, June 2009, p. 1.
26
Clark McCauley and Sophia Moskalenko, “Mechanisms of Political Radicalization: Pathways Toward Terrorism,”
Terrorism and Political Violence, vol. 20, no. 3 (July 2008), p. 416.
27
Home Office, Prevent Strategy, June 2011, p. 108, http://www.homeoffice.gov.uk/publications/counter-terrorism/
prevent/prevent-strategy/prevent-strategy-review?view=Binary.
28
Empowering Local Partners to Prevent Violent Extremism in the United States, August 2011, p. 1,
http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf.
29
According to the FBI, “Although difficult to define, ‘no particular factual predication’ is less than ‘information or
allegation’ as required for the initiation of a preliminary investigation (PI). For example, an assessment may be
(continued...)
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Civil libertarians have questioned their impacts on privacy.30 Also, the bombing of the 2013
Boston Marathon has prompted some to ask whether the FBI appropriately shared information
with state and local officials regarding an assessment of Tamerlan Tsarnaev its agents conducted
in 2011.31
To counter violent jihadist plots, U.S. and foreign law enforcement have employed two sets of
innovative tactics. Using violations of civil laws to arrest and prosecute suspected terrorists and
their support networks is known as taking the “Al Capone” approach, in reference to the federal
government’s successful use of the mobster’s violations of tax law to incarcerate him. Law
enforcement has also successfully used “agents provocateurs”—people employed to associate
with suspects and incite them to commit acts that they can be arrested for. These tactics have long
been used in a wide variety of criminal cases but have particular utility in counterterrorism
investigations as they allow suspects to be arrested prior to the commission of a terrorist act rather
than after the damage has been done.
Cybersecurity
John Rollins, Specialist in Terrorism and National Security ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R40836, Cybersecurity: Current Legislation,
Executive Branch Initiatives, and Options for Congress.
Cyber threats to the United States are a current and growing concern to policy makers.
Technology is ubiquitous and relied upon in almost every facet of modern life, such as supporting
government services, corporate business processes, and individual professional and personal
pursuits. Many of these technologies are interdependent and the disruption to one piece of
equipment may have a negative cascading effect on other devices. A denial of service, theft or
manipulation of data, or damage to critical infrastructure through a cyber-based attack could have
significant impacts on national security, the economy, and the livelihood of individual citizens.
These concerns raise many questions for Congress, among them,
•
Who are the aggressors in cyberspace and what are their intentions and
capabilities?
•
What are the impacts and implications of cyberattacks?
•
What legislative and policy actions have the Congress and executive branch
taken to respond to threats from cyberspace? What further steps should be taken?
(...continued)
conducted when: (i) there is reason to collect information or facts to determine whether there is a criminal or national
security threat; and (ii) there is a rational and articulable relationship between the stated authorized purpose of the
assessment on the one hand and the information sought and the proposed means to obtain that information on the other.
An FBI employee must be able to explain the authorized purpose and the clearly defined objective(s), and reason the
particular investigative methods were used to conduct the Assessment.” See Federal Bureau of Investigation, Domestic
Investigations and Operations Guide, redacted, 2011 update, pp. 5-1 through 5-2.For more information see CRS Report
R41780, The Federal Bureau of Investigation and Terrorism Investigations, by (name redacted).
30
Charlie Savage, “F.B.I. Agents Get Leeway to Push Privacy Bounds,” New York Times, June 12, 2011.
31
Scott Shane and Michael S. Schmidt, “Boston Police Weren’t Told F.B.I. Got Warning on Brother,” New York
Times, May 9, 2013. FBI press release, “Statement by Special Agent in Charge Richard DesLauriers Regarding
Information Sharing,” May 9, 2013.
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Cyber Threats
Cyber-based technologies32 are now ubiquitous around the globe. The vast majority of their users
pursue lawful professional and personal objectives. However, criminals, terrorists, and spies also
rely heavily on cyber-based technologies to support organizational objectives. These malefactors
may access cyber-based technologies in order to deny service, steal or manipulate data, or use a
device to launch an attack. Entities using cyber-based technologies for illegal purposes take many
forms and pursue a variety of actions counter to U.S. global security and economic interests.
The threats posed by these cyber-aggressors and the examples of types of attacks they can pursue
are not mutually exclusive. For example, a hacker targeting the intellectual property of a
corporation may be categorized as both a cyberthief and a cyberspy. A cyberterrorist and
cyberwarrior may be employing different technological capabilities in support of a nation’s
security and political objectives. Commonly recognized cyber-aggressors and representative
examples of the harm they can inflict include the following:
Cyberterrorists are state-sponsored and non-state actors who engage in cyberattacks as a form of
terrorism. Transnational terrorist organizations, insurgents, and jihadists have used the Internet as
a tool for planning attacks, radicalization and recruitment, a method of propaganda distribution,
and a means of communication.33 While no unclassified reports have been published regarding a
cyberattack on a critical component of the nation’s infrastructure, the vulnerability of critical lifesustaining control systems being accessed and destroyed via the Internet has been demonstrated.
In 2009, the Department of Homeland Security (DHS) conducted an experiment that revealed
some of the vulnerabilities to the nation’s control systems that manage power generators and
grids. The experiment, known as the Aurora Project, entailed a computer-based attack on a power
generator’s control system that caused operations to cease and the equipment to be destroyed.34
Cyberspies are individuals who steal classified or proprietary information used by governments
or private corporations to gain a competitive strategic, security, financial, or political advantage.
These individuals often work at the behest of, and take direction from, foreign government
entities. For example, a 2011 FBI report noted, “a company was the victim of an intrusion and
had lost 10 years’ worth of research and development data—valued at $1 billion—virtually
overnight.”35 Likewise, in 2008 the Department of Defense’s (DOD’s) classified computer
network system was unlawfully accessed and “the computer code, placed there by a foreign
intelligence agency, uploaded itself undetected onto both classified and unclassified systems from
which data could be transferred to servers under foreign control.”36 Reportedly, the intelligence
community will soon complete a classified National Intelligence Estimate focused on
32
Defined as an electronic device that accesses or relies on the transfer of bytes of data to perform a mechanical
function. The device can access cyberspace (Internet) through the use of physical connections or wireless signals.
33
For additional information, see CRS Report RL33123, Terrorist Capabilities for Cyberattack: Overview and Policy
Issues, by (name redacted) and (name redacted).
34
See “Challenges Remain in DHS’ Efforts to Security Control Systems,” Department of Homeland Security, Office of
Inspector General, August 2009. For a discussion of how computer code may have caused the halting of operations at
an Iranian nuclear facility see CRS Report R41524, The Stuxnet Computer Worm: Harbinger of an Emerging Warfare
Capability, by (name redacted), (name redacted), and (name redacted).
35
Executive Assistant Director Shawn Henry, Responding to the Cyber Threat, Federal Bureau of Investigation,
Baltimore, MD, 2011.
36
Department of Defense Deputy Secretary of Defense William J. Lynn III, “Defending a New Domain,” Foreign
Affairs, October 2010.
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cyberspying against U.S. targets from abroad. Many cybersecurity experts expect this report to
address activities relating to the “Chinese government’s broad policy of encouraging theft of
intellectual property through cyberattacks.”37 Then-DOD Secretary Leon Panetta reportedly
stated, “it’s no secret that Russia and China have advanced cyber capabilities.”38
Cyberthieves are individuals who engage in illegal cyber-attacks for monetary gain.39 Examples
include an organization or individual who illegally accesses a technology system to steal and use
or sell credit card numbers and someone who deceives a victim into providing access to a
financial account. One estimate has placed the annual cost of cybercrime to individuals in 24
countries at $388 billion.40 However, given the complex and sometimes ambiguous nature of the
costs associated with cybercrime, and the reluctance in many cases of victims to admit to being
attacked, there does not appear to be any publicly available, comprehensive, reliable assessment
of the overall costs of cyberattacks.
Cyberwarriors are agents or quasi-agents of nation-states who develop capabilities and
undertake cyberattacks in support of a country’s strategic objectives.41 These entities may or may
not be acting on behalf of the government with respect to target selection, timing of the attack,
and type(s) of cyberattack and are often blamed by the host country when accusations are levied
by the nation that has been attacked. Often, when a foreign government is provided evidence that
a cyberattack is emanating from its country, the nation that has been attacked is informed that the
perpetrators acted of their own volition and not at the behest of the government. In August 2012 a
series of cyberattacks were directed against Saudi Aramco, the world’s largest oil and gas
producer and most valuable company, according to the New York Times. The attacks compromised
30,000 of the company’s computers and the code was apparently designed to disrupt or halt the
production of oil. Some security officials have suggested that Iran may have supported this attack.
However, numerous cyberwarrior groups, some with linkages to nations with objectives counter
to those of Saudi Arabia, have claimed credit for this incident.42
Cyberactivists are individuals who perform cyberattacks for pleasure, philosophical, or other
nonmonetary reasons. Examples include someone who attacks a technology system as a personal
challenge (who might be termed a “classic” hacker), and a “hacktivist” such as a member of a
group who undertakes an attack for political reasons. The activities of these groups can range
from simple nuisance-related denial of service attacks to disrupting government and private
corporation business processes.
37
Ken Dilanian, “U.S. Spy Agencies to Detail Cyberattacks from Abroad,” Los Angeles Times, December 6, 2012.
Ibid.
39
For discussions of federal law and issues relating to cybercrime, see CRS Report 97-1025, Cybercrime: An Overview
of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, by (name redacted), and CRS
Report R41927, The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law
Enforcement, by (name redacted).
40
Symantec, “Symantec Internet Security Threat Report: Trends for 2010,” Vol. 16, April 2011. Plain text summary
with calculations available at http://www.symantec.com/about/news/release/article.jsp?prid=20110907_02.
41
For additional information, see CRS Report RL31787, Information Operations, Cyberwarfare, and Cybersecurity:
Capabilities and Related Policy Issues, by (name redacted).
42
Perlroth, Nicole, “Cyberattack On Saudi Firm Disquiets U.S.,” New York Times, October 24, 2012, p. A1. Available
at http://www.nytimes.com/2012/10/24/business/global/cyberattack-on-saudi-oil-firm-disquiets-us.html?pagewanted=
all.
38
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Ascertaining information about the aggressor and their capabilities and intentions is very
difficult.43 The threats posed by these aggressors coupled with the United States’ proclivity to be
an early adopter of emerging technologies,44 which are often interdependent and contain
vulnerabilities, make for a complex environment when considering operational responses,
policies, and legislation designed to safeguard the nation’s strategic economic and security
interests.
Legislative Branch Efforts to Address Cyber Threats45
More than 50 federal statutes address various aspects of cybersecurity either directly or indirectly,
but there is no overarching framework legislation in place. While revisions to most of those laws
have been proposed over the past few years, no major cybersecurity legislation has been enacted
since 2002. Recent legislative proposals, including many bills introduced in the 111th and 112th
Congresses, have focused largely on issues in 10 broad areas: national strategy and the role of
government, reform of the Federal Information Security Management Act (FISMA), protection of
critical infrastructure (including the electricity grid and the chemical industry), information
sharing and cross-sector coordination, breaches resulting in theft or exposure of personal data
such as financial information, cybercrime, privacy in the context of electronic commerce,
international efforts, research and development, and the cybersecurity workforce.
For most of those topics, at least some of the bills addressing them have proposed changes to
current laws. Several of the bills specifically focused on cybersecurity received committee or
floor action, but none became law prior to the 113th Congress. Many observers believe that
enactment of cybersecurity legislation will be attempted again in the 113th Congress.
Executive Branch Actions to Address Cyber Threats46
In 2008, the George W. Bush Administration established the Comprehensive National
Cybersecurity Initiative (CNCI) through National Security Presidential Directive 54/Homeland
Security Presidential Directive 23 (NSPD-54/HSPD-23). Those documents are classified, but the
Obama Administration released a description of them in March 2010.47 Goals of the 12 initiatives
in that description include consolidating external access points to federal systems; deploying
43
The concept of attribution in the cyber world entails an attempt to identify with some degree of specificity and
confidence the geographic location, identity, capabilities, and intention of the cyber-aggressor. Mobile technologies and
sophisticated data routing processes and techniques often make attribution difficult for U.S. intelligence and law
enforcement communities.
44
Emerging cyber-based technologies that may be vulnerable to the actions of a cyber-aggressor include items that are
in use but not yet widely adopted or are currently being developed. For additional information on how the convergence
of inexpensive, highly sophisticated, and easily accessible technology is providing opportunities for cyber-aggressors to
exploit vulnerabilities found in a technologically laden society see Global Trends 2030: Alternative Worlds, National
Intelligence Council, Office of the Director of National Intelligence, December 10, 2012.
45
Information derived from a multi-authored CRS Report R42114, Federal Laws Relating to Cybersecurity: Overview
and Discussion of Proposed Revisions, by (name redacted), November 9, 2012.
46
Information contained in this section was derived from a multi-authored reports and memos produced by numerous
CRS analysts working on cybersecurity.
47
The White House, “The Comprehensive National Cybersecurity Initiative,” March 5, 2010. For additional
information about this Initiative and associated policy considerations, see CRS Report R40427, Comprehensive
National Cybersecurity Initiative: Legal Authorities and Policy Considerations, by (name redacted) and (name re
dacted).
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intrusion detection and prevention systems across those systems; improving research coordination
and prioritization and developing “next-generation” technology, information sharing, and
cybersecurity education and awareness; mitigating risks from the global supply chain for
information technology; and clarifying the federal role in protecting critical infrastructure.
In December 2009, the Obama Administration created the position of White House Cybersecurity
Coordinator. The responsibilities for this position include government-wide coordination of
cybersecurity-related issues, including overseeing the implementation of the CNCI. The
Coordinator works with both the National Security and Economic Councils in the White House.
However, the Coordinator does not have direct control over agency budgets, and some observers
argue that operational entities such as the DOD’s National Security Agency (NSA) have far
greater influence over federal cybersecurity issues.48 Reportedly, in October 2012 President
Obama signed a classified Presidential Decision Directive that “enables the military to act more
aggressively to thwart cyberattacks on the Nation’s web of government and private computer
networks.”49
The complex federal role in cybersecurity involves both securing federal systems, assisting in
protecting nonfederal systems, and pursuing military, intelligence, and law enforcement
community detection, surveillance, defensive, and offensive initiatives. Under current law, all
federal agencies have cybersecurity responsibilities relating to their own systems and dozens of
agencies have government-wide aggressor, issue, and critical infrastructure sector-specific
responsibilities and legislative authorities. The cybersecurity roles and responsibilities of these
agencies are often complementary but at times are overlapping or competing. In the absence of
enactment of cybersecurity legislation, the White House issued an executive order on February
12, 2013, “directing federal departments and agencies to use their existing authorities to provide
better cybersecurity for the Nation.”50
Medical Countermeasures to Chemical, Biological, Radiological,
and Nuclear Terrorism
(name redacted), Specialist, Science and Technology Policy ([redacted]@crs.loc.gov, 7-....)
The anthrax attacks of 2001 highlighted the nation’s vulnerability to biological terrorism. The
federal government responded to these attacks by increasing efforts to protect civilians against
chemical, biological, radiological, and nuclear (CBRN) terrorism. Successful deployment of
effective medical countermeasures, such as drugs or vaccines, could reduce the effects of a
CBRN attack. The federal government has created several programs over the last decade to
develop, procure, and distribute CBRN medical countermeasures. Despite these efforts, the
pharmaceutical industry has developed few new countermeasures, and many experts question the
government’s ability to quickly distribute countermeasures following an attack. The 113th
48
See, for example, Seymour M. Hersh, “Judging the Cyber War Terrorist Threat,” The New Yorker, November 1,
2010.
49
Nakashima, Ellen, “Obama Signs Secret Directive to Help Thwart Cyberattacks,” The Washington Post, Nov. 14,
2012.
50
Daniel, Michael, “Improving the Security of the Nation’s Critical Infrastructure,” The White House Blog, February
13, 2013. http://www.whitehouse.gov/blog/2013/02/13/improving-security-nation-s-critical-infrastructure.
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Congress will likely consider the effectiveness of the federal efforts and whether these programs
should be continued, modified, or ended.
In 2004, Congress passed the Project BioShield Act (P.L. 108-276) to encourage the private
sector to develop CBRN medical countermeasures by creating a guaranteed federal market.51
Congress advance appropriated $5.6 billion for Project BioShield acquisitions for FY2004FY2013. Through August 2013, the federal government had obligated $2.8 billion of this advance
appropriation to acquire CBRN countermeasures. Additionally, Congress removed $2.3 billion
from this account through rescission or transfers to other programs. The 113th Congress passed
the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (PAHPRA, P.L. 113-5)
that authorized $2.8 billion in advance funding for Project BioShield through FY2018. The 113th
Congress may still consider whether modifying the funding amount or providing appropriations
on an annual basis would improve the program’s efficiency or performance.
In light of the current fiscal environment, Congress is likely to increase its scrutiny of the
planning, coordination, and accountability of federal efforts to research, develop, and procure
CBRN medical countermeasures. To this end, PAHPRA requires additional planning and
transparency by requiring detailed annual countermeasure strategy and implementation plans and
a coordinated multi-year budget. Congress may also consider nontraditional programs that may
improve the efficiency of existing efforts, such as the President’s request to create a nonprofit,
nongovernmental strategic investment corporation to provide capital and business advice to small
companies developing medical countermeasure-related technologies.52
Distribution of existing medical countermeasures during a CBRN emergency remains a challenge
for the federal government and its partners. The federal government maintains programs that
stockpile and distribute stores of medical countermeasures, including the Centers for Disease
Control and Prevention’s Strategic National Stockpile (SNS). Many experts question the
sufficiency of these federal programs, and whether state governments have sufficient plans,
organization, and resources to receive and effectively disseminate federal stockpiles.53 Congress
is likely to continue evaluating the effectiveness of federal programs and may also consider
whether to augment these efforts with other stockpiling and distribution methods. Such methods
include stockpiling countermeasures at homes or businesses and using the U.S. Postal Service to
distribute countermeasures. These proposals may raise some concerns regarding program costs,
unintended use of countermeasures, and local implementation.
BioWatch: Detection of Aerosol Release of Biological Agents
(name redacted), Specialist in Public Health and Epidemiology ([redacted]@crs.loc.gov, 7-....)
51
CRS Report R42349, The Project BioShield Act: Issues for the 112th Congress, by (name redacted).
52
U.S. Department of Health and Human Services, Public Health and Social Services Emergency Fund Justification of
Estimates for Appropriations Committees FY2013, p. 18.
53
See, for examples, Senator Bob Graham, Senator James Talent, and Randall Larsen, et al., Bio-Response Report
Card, The Bipartisan WMD Terrorism Research Center, Washington, DC, October 2011, pp. 45-49,
http://www.wmdcenter.org/wp-content/uploads/2011/10/bio-response-report-card-2011.pdf; and Christopher Nelson,
Andrew M. Parker, and Shoshana R. Shelton, et al., Analysis of the Cities Readiness Initiative (Santa Monica, CA:
RAND Corporation, 2012), pp. 31-34.
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The BioWatch program—launched in 2003—deploys sensors in more than 30 large U.S. cities to
detect the possible aerosol release of a bioterrorism pathogen, in order that medications can be
distributed to the population before exposed individuals become ill. Air filters in the sensors are
collected daily and tested for biological agents. The DHS Office of Health Affairs (OHA) is
responsible for system management, including operational costs and procurements. The Under
Secretary for Science and Technology advises the Secretary regarding research and development
efforts and priorities in general, in support of the department’s missions. The Centers for Disease
Control and Prevention (CDC) in the Department of Health and Human Services (HHS) is
responsible for some aspects of BioWatch laboratory testing. Local jurisdictions are responsible
for the public health response to a bioterrorism incident. BioWatch has not detected such an
incident since its inception, although it has detected pathogens of interest; scientists believe that
natural airborne “background” levels of these pathogens may exist in certain regions.
In July 2012, the Los Angeles Times published the first in a series of investigative articles
criticizing the performance of the current BioWatch system.54 The articles claimed that the system
is prone to “false alarms” and is also insufficiently sensitive to detect an actual incident. The DHS
Assistant Secretary for Health Affairs published a response disputing these claims.55 In addition,
some state and local health officials defended the program, saying, among other things, that it has
fostered collaboration among federal, state, and local officials, who would be called upon to work
together in response to an actual incident.56
Because prompt treatment may minimize casualties in a bioterrorism event, federal officials have
sought to reduce the inherent delay in daily BioWatch filter collection by developing so-called
autonomous sensors. These sensors would analyze filter deposits and transmit results in near-real
time. OHA has been pursuing procurement of this type of sensor, which it terms Generation 3, or
Gen-3, since 2007. However, according to the Government Accountability Office (GAO),
“BioWatch Gen-3 has a history of technical and management challenges.”57 In particular, “Gen3’s estimated life cycle cost, some $5.8 billion, makes it one of the largest DHS acquisitions. And
the question is, whether it justifies that level of investment.”58 GAO recommended that before
continuing the acquisition, “DHS reevaluate the mission need and alternatives and develop
performance, schedule, and cost information in accordance with guidance and good acquisition
54
David Willman, “The Biodefender That Cries Wolf,” Los Angeles Times, July 8, 2012.
Dr. Alexander Garza, Assistant Secretary for Health Affairs, DHS, “The Truth About BioWatch: The Importance of
Early Detection of a Potential Biological Attack,” July 12, 2012. Statistics cited in this blog posting were later reported
to be inaccurate by a DHS official. See comments of BioWatch Program Manager Dr. Mike Walter before the House
Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Continuing Concerns Over
BioWatch and the Surveillance of Bioterrorism, 113th Cong., 1st sess., June 18, 2013, CQ transcription.
56
See for example Robert Roos, “Public Health Officials Respond to Critique of BioWatch,” CIDRAP News, August
17, 2012, http://www.cidrap.umn.edu/cidrap/content/bt/bioprep/news/aug1712biowatch.html.
57
GAO, Biosurveillance: DHS Should Reevaluate Mission Need and Alternatives before Proceeding with BioWatch
Generation-3 Acquisition, GAO-12-810, September 10, 2012, p. 3, http://www.gao.gov/products/GAO-12-810.
58
Testimony of William Jenkins, Director, Homeland Security and Justice Issues, GAO, before the House Homeland
Security Committee, Subcommittee on Emergency Preparedness, Response and Communications, and Subcommittee
on Cybersecurity, Infrastructure Protection and Security Technologies, BioWatch Present and Future: Meeting Mission
Needs for Effective Biosurveillance?, joint hearing, 112th Cong., 2nd sess., September 13, 2012, CQ transcription.
According to GAO, the estimated Gen-3 life cycle costs are based on DHS’s June 2011 Life-Cycle Cost Estimate,
which estimates costs through FY2028.
55
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practices.”59 In June 2013, DHS announced that it had paused Gen-3 deployment to conduct an
analysis of alternatives in response to GAO’s recommendation.60
The performance of the BioWatch program has attracted the attention of Members of Congress
since the program’s inception. Congressional appropriators have at times sought to limit funding
for program expansion and/or called for program reviews.61 Authorizing committees in each
Congress since the 108th have held hearings on the program. In the 112th Congress, the House
Committee on Energy and Commerce began an investigation of the program, which it has
continued in the 113th Congress.62 In August 2013, committee leadership asked GAO for a new
study of the technical capabilities of the Gen-3 system intended for deployment.63
Continuity of Government Operations
(name redacted), Specialist in American National Government, Government and Finance
Division ([redacted]@crs.loc.gov, 7-....)
Continuity of government operations refers to programs and initiatives to ensure that governing
entities are able to recover from a wide range of potential operational interruptions. Government
continuity planning may be viewed as a process that incorporates preparedness capacities,
including agency response plans, employee training, recovery plans, and the resumption of
normal operations. These activities are established in part to ensure the maintenance of civil
authority, provision of support for those affected by an incident, infrastructure repair, and other
actions in support of recovery. Arguably, any emergency response presumes the existence of an
ongoing, functional government to fund, support, and oversee recovery efforts. Interruptions for
which contingency plans might be activated include localized acts of nature, accidents,
technological emergencies, and military or terrorist attack-related incidents.
Current authority for executive branch continuity programs is provided in a 2007 National
Security Presidential Directive (NSPD) 51 on National Continuity Policy.64 To support the
provision of essential government activities, NSPD 51 sets out a policy “to maintain a
comprehensive and effective continuity capability composed of continuity of operations65 and
59
GAO, Biosurveillance: DHS Should Reevaluate Mission Need and Alternatives before Proceeding with BioWatch
Generation-3 Acquisition, GAO-12-810, September 10, 2012, highlights page.
60
Testimony of BioWatch Program Manager Dr. Mike Walter before the House Committee on Energy and Commerce,
Subcommittee on Oversight and Investigations, Continuing Concerns over BioWatch and the Surveillance of
Bioterrorism, 113th Cong., 1st sess., June 18, 2013.
61
See BioWatch discussions in CRS Reports on annual DHS appropriations, http://www.crs.gov/pages/subissue.aspx?
cliid=2345.
62
House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, “Oversight and
Investigations Subcommittee Continues Investigation of BioWatch and Surveillance of Bioterrorism,” press release,
June 18, 2013, with links to committee report and other documents, http://energycommerce.house.gov/press-releases.
63
House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, “Bipartisan Committee
Leadership Requests GAO Study of BioWatch,” press release, Aug. 20, 2013, http://energycommerce.house.gov/pressreleases.
64
White House, Office of the Press Secretary, National Security and Homeland Security Presidential Directive, May 9,
2007, HSPD 51 is also identified as Homeland Security Presidential Directive (HSPD) 20 A more detailed discussion
of national continuity policy is available in CRS Report RS22674, National Continuity Policy: A Brief Overview, by (na
me redacted).
65
NSPD 51 identifies continuity of operations (COOP) as “an effort within individual executive departments and
(continued...)
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continuity of government66 programs in order to ensure the preservation of our form of
government67 under the Constitution and the continuing performance of national essential
functions (NEF) under all conditions.”
Executive Order (E.O.) 12656, Assignment of Emergency Preparedness Responsibilities, was
issued in 1988,68 and assigns national security emergency preparedness responsibilities to federal
executive departments and agencies. E.O. 12656 requires the head of each federal department and
agency to “ensure the continuity of essential functions in any national security emergency by
providing for:succession to office and emergency delegation of authority in accordance with
applicable law; safekeeping of essential resources, facilities, and records; and establishment of
emergency operating capabilities.” Subsequent sections require each department to carry out
specific contingency planning activities in its areas of policy responsibility.
Although contingency planning authorities are chiefly based on presidential directives, Congress
could consider whether current authorities accurately reflect current government organization and
goals, the costs of these programs, potential conflicts that might result from departments and
agencies complying with different authorities, and the extent to which government contingency
planning ensures that the federal executive branch will be able to carry out its responsibilities
under challenging circumstances.
Federal Facility Security: Federal Protective Service
(name redacted), Analyst in Emergency Management and Homeland Security Policy
([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R41138, Federal Building, Courthouse, and Facility
Security.
The federal government’s real property69 is comprised over 900,000 assets.70 The security of this
federal property affects not only the daily operations of the federal government but the safety of
federal employees and the public. A number of these properties are multi-tenant federal buildings
that house federal courthouses, and some congressional state and district offices. Security of
federal facilities includes physical security assets such as closed-circuit television cameras,
barrier material, and security personnel.
(...continued)
agencies to ensure that Primary Mission-Essential Functions continue to be performed during a wide range of
emergencies, including localized acts of nature, accidents, and technological or attack-related emergencies.”
66
NSPD 51 identifies continuity of government (COG) as “a coordinated effort within the federal government’s
executive branch to ensure that national essential functions continue to be performed during a catastrophic emergency.”
67
The directive notes “that each branch of the federal government is responsible for its own continuity programs,” and
requires an executive branch official to “ensure that the executive branch’s COOP and COG policies ... are
appropriately coordinated with those of the legislative and judicial branches in order to … maintain a functioning
federal government.” The legislative branch and the federal judiciary maintain continuity programs consonant with
their positions as coequal branches of government. NSPD 51 does not specify the nature of appropriate coordination
with continuity planners in the legislative and judicial branch.
68
53 FR 47491; November 23, 1988.
69
Real property is defined as property that is leased or owned by the General Services Administration.
70
U.S. Government Accountability Office, Federal Real Property: Overreliance on Leasing Contributed to High-Risk
Designation, GAO-11-879T, August 4, 2011, p. 1, http://www.gao.gov/new.items/d11879t.pdf.
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The Federal Protective Service (FPS) is designated as the lead “Government Facilities Sector
Agency” for the National Infrastructure Protection Plan, and as such is responsible for the
protection and security of federally owned and leased buildings, property, and personnel. In
general, FPS undertakes security and law enforcement activities that reduce vulnerability to
criminal and terrorist threats, which include all-hazards based risk assessments; emplacement of
criminal and terrorist countermeasures, such as vehicle barriers and closed-circuit video cameras;
law enforcement response; assistance to federal agencies through facility security committees;
and emergency and safety education programs. FPS also assists other federal agencies, such as
the U.S. Secret Service at National Special Security Events. FPS employs approximately 1,225
law enforcement officers, investigators, and administrative personnel; and it administers the
services of approximately 15,000 contract security guards.71 Federal agencies protected by FPS
pay fees that are established by the Office of Management and Budget. FPS’s funding is derived
from those fees.
Federal facility security practices have been subject to criticism by government auditors and
security experts, and have been the topic of congressional oversight hearings. Elements that have
received criticism include the use of private security guards, FPS management and security
practices, and the coordination of federal facility security. According to FPS, it plans to (1)
improve the strategic methods used in identifying and reducing actual and potential threats
directed at FPS-protected facilities; (2) restore proactive monitoring activities to mitigate the
increased risk to these facilities; (3) improve the service provided by contract security guard
forces through acquisition strategies and “intensive” monitoring and training; (4) develop riskbased security standards tied to intelligence and risk-assessments; (5) refine business practices
through stakeholder interface; and (6) implement a capital plan that will improve security and
customer service.72 Congress will likely continue oversight of FPS management and operations in
the 113th Congress to ensure that it has the necessary staffing, resources, and funding to carry out
its mission.
Food Defense
(name redacted), Specialist in Public Health and Epidemiology ([redacted]@crs.loc.gov, 7-....)
Foods may be intentionally contaminated for purposes of terrorism, fraud (e.g., the dilution of a
valuable commodity), or other harmful intent. Food safety efforts have long focused on protecting
against unintentional contaminants, such as infectious pathogens or pesticide residues. Since the
2001 terrorist attacks, regulators and others have added a focus on food defense, the protection of
the food supply from deliberate or intentional acts of contamination or tampering.73 Large-scale
foodborne outbreaks can sicken hundreds of people. Sales of affected commodities—as well as
unaffected commodities that the consuming public perceives to be involved—can suffer. An
intentional incident of food contamination, especially if it were an act of terrorism, could have
serious economic consequences, in addition to any illnesses it caused.
71
U.S. Department of Homeland Security, National Protection and Programs Directorate, Federal Protective Service:
Fiscal Year 2012 Congressional Justification, Washington, DC, February 2011, p. FPS-1.
72
U.S. Department of Homeland Security, National Protection and Programs Directorate, Federal Protective Service:
Strategic Plan, Secure Facilities, Safe Occupants, Washington, DC, 2011, pp. 3-5.
73
Food and Drug Administration (FDA), “Food Defense,” http://www.fda.gov/Food/FoodDefense.
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Federal food safety responsibility rests primarily with the U.S. Department of Agriculture
(USDA) and the Food and Drug Administration (FDA). USDA’s Food Safety and Inspection
Service (FSIS) regulates most meat and poultry and some egg products; FDA is responsible for
the safety of most other foods.74 State and local authorities assist with inspection, outbreak
response, and other food safety functions, and regulate retail establishments. Noting the
complexity of the nation’s food and agriculture sector, which accounts for about one-fifth of the
nation’s economy, DHS says that “FDA is responsible for the safety of 80 percent of the food
consumed in the United States ... FDA regulates $240 billion of domestic food and $15 billion of
imported food. In addition, roughly 600,000 restaurants and institutional food service providers,
an estimated 235,000 grocery stores, and other food outlets are regulated by State and local
authorities that receive guidance and other technical assistance from FDA.”75
The 111th Congress enacted a comprehensive food safety law, the Food Safety Modernization Act
(FSMA, P.L. 111-353), focused mainly on foods regulated by FDA.76 FSMA attempts to prevent
both intentional and unintentional contamination of foods through a variety of strategies to
prevent food contamination and through enhanced regulatory authorities. However, FDA has not
yet implemented some of the law’s provisions.77 In addition, FSMA requires the Secretaries of
Health and Human Services and Agriculture to develop a National Agriculture and Food Defense
Strategy, implementation plan, and research agenda. This strategy and the accompanying
documents have not yet been published.78
GAO has named food safety as a high-risk issue, citing the fragmentation of federal oversight,
among other concerns.79 GAO specifically noted delays in the implementation of the nation’s
food and agriculture defense policy, Homeland Security Presidential Directive 9 (HSPD-9). This
directive, issued by the George W. Bush Administration in 2004, assigns various emergency
response and recovery responsibilities to USDA, FDA, DHS, and other agencies. GAO found that
there is no centralized coordination of HSPD-9 implementation efforts, and recommended that
DHS take on this role to assure that the nation’s food and agriculture defense policy is fully in
place. In addition, GAO recommended that the executive branch develop a government-wide
performance plan for all of its food safety activities.
Security of Pipelines
Paul Parfomak, Specialist in Energy and Infrastructure Policy, Resources, Science and
Industry Division ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R41536, Keeping America’s Pipelines Safe and
Secure: Key Issues for Congress.
74
CRS Report RS22600, The Federal Food Safety System: A Primer, by (name redacted).
DHS, National Infrastructure Protection Plan: Agriculture and Food Sector Snapshot, http://www.dhs.gov/foodand-agriculture-sector.
76
CRS Report R40443, The FDA Food Safety Modernization Act (P.L. 111-353), coordinated by (name redacted).
77
FDA FSMA implementation information, http://www.fda.gov/Food/GuidanceRegulation/FSMA/default.htm.
78
FDA, FSMA Reports and Studies, http://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm271961.htm.
79
GAO, “Revamping Federal Oversight of Food Safety,” http://www.gao.gov/highrisk/revamping_food_safety/.
75
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Nearly a half-million miles of high-volume pipeline transport natural gas, oil, and other
hazardous liquids across the United States.80 These pipelines are integral to U.S. energy supply
and link to other critical infrastructure, such as power plants, airports, and military bases. While a
fundamentally safe means of transport, gas and oil pipelines, globally, have been a favored target
of terrorists, militants, and organized crime. Since September 11, 2001, U.S. officials have foiled
plots to attack jet fuel pipelines at the John F. Kennedy International Airport and to attack the
Trans Alaska Pipeline System and a major natural gas pipeline in the eastern United States.81
Although Al Qaeda attacks on U.S. pipelines are perceived as unlikely, attacks by individuals
unaffiliated with organized or terrorist groups may be a growing concern. For example, in August
2011, federal agents arrested a U.S. citizen—acting alone—who confessed to planting an
explosive device under a natural gas pipeline in Oklahoma.82 In June 2012, a man was critically
injured attempting to plant an explosive device along a natural gas pipeline in Plano, TX.83 One
specific area of pipeline security that has recently come to the fore is cybersecurity. In March
2012, the Industrial Control Systems Cyber Emergency Response Team within DHS identified an
ongoing series of cyber intrusions among U.S. natural gas pipeline operators dating back to
December 2011 “positively identified … as related to a single campaign.”84
Federal pipeline security activities are led by the Pipeline Security Division within the
Transportation Security Administration (TSA). Although the TSA has statutory authority to
regulate pipeline security, to date, these activities have relied upon voluntary industry compliance
with federal security guidance and TSA security best practices. TSA has been engaged in a
number of specific pipeline security initiatives since 2003, including developing security
standards; implementing measures to mitigate security risk; building and maintaining stakeholder
relations, coordination, education, and outreach; and monitoring compliance with voluntary
pipeline security standards. The cornerstone of TSA’s pipeline activities is its Corporate Security
Review (CSR) program, wherein the agency visits the largest pipeline and natural gas distribution
operators to review their security plans and inspect their facilities. TSA has completed CSRs
covering the largest 100 pipeline systems (84% of total U.S. energy pipeline throughput) and is in
the process of conducting second CSRs of these systems.85 In 2008, the TSA initiated its Critical
Facility Inspection Program (CFI) to conduct in-depth inspections of all the critical facilities of
the 125 largest pipeline systems in the United States. TSA concluded the CFI program in May
2011, having completed a total of 347 facility inspections throughout the United States.86
While TSA is generally credited with significantly strengthening U.S. pipeline security, Congress
has had ongoing concerns about the adequacy of the agency’s pipeline security standards, its
80
Hazardous liquids primarily include crude oil, gasoline, jet fuel, diesel fuel, home heating oil, propane, and butane.
Other hazardous liquids transported by pipeline include anhydrous ammonia, carbon dioxide, kerosene, liquefied
ethylene, and some petrochemical feedstocks.
81
U.S. Attorney’s Office, Middle District of Pennsylvania, “Man Convicted of Attempting to Provide Material Support
to Al-Qaeda Sentenced to 30 Years’ Imprisonment,” Press release, November 6, 2007; U.S. Dept. of Justice, “Four
Individuals Charged in Plot to Bomb John F. Kennedy International Airport,” Press release, June 2, 2007.
82
Carol Cratty, “Man Accused in Attempted Bombing of Oklahoma Gas Pipeline,” CNN, August 12, 2011.
83
“Grand Jury Indicts Plano Gas Pipeline Bomb Suspect on Weapons Charge,” Associated Press, July 11, 2012.
84
Industrial Control Systems Cyber Emergency Response Team (ICS-CERT), “Gas Pipeline Cyber Intrusion
Campaign,” ICS-CERT Monthly Monitor, April 2012, p.1, http://www.us-cert.gov/control_systems/pdf/ICSCERT_Monthly_Monitor_Apr2012.pdf.
85
Government Accountability Office (GAO), Pipeline Security: TSA Has Taken Actions to Help Strengthen Security,
but Could Improve Priority-Setting and Assessment Processes, GAO-10-867, August, 2010, Executive Summary.
86
Transportation Security Administration, personal communication with section author, February 24, 2012.
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overall level of resources, and certain aspects of its CSR program. Because the TSA believes the
most critical U.S. pipeline systems generally meet or exceed industry security guidance, the
agency believes it achieves better security with voluntary guidelines, and maintains a more
cooperative and collaborative relationship with its industry partners as well.87 But some Members
of Congress, as well as the Department of Transportation’s Office of Inspector General, have
questioned the adequacy of voluntary, rather than mandatory, federal pipeline security
requirements.88 In 2010, a Member expressed concern that TSA’s pipeline division—with 13 fulltime equivalent staff—did not have sufficient staff to carry out a federal pipeline security program
on a national scale.89 In a 2010 report, the Government Accountability Office recommended a
number of specific actions to improve TSA’s pipeline security priority-setting and CSR
assessment processes, such as transmitting CSR recommendations in writing to pipeline
operators.90 To date, there has been no federal legislation directly addressing these concerns, but
they may receive additional attention in the 113th Congress. In addition to these specific issues,
the next Congress may assess how pipeline security fits together with the U.S. pipeline safety
program, administered by the DOT, in the nation’s overall strategy to protect transportation
infrastructure. While the DOT and TSA have distinct missions, pipeline safety and security are
intertwined.
Security of Chemical Facilities
(name redacted), Specialist in Science and Technology Policy ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R42918, Chemical Facility Security: Issues and
Options for the 113th Congress and CRS Report R43070, Regulation of Fertilizers:
Ammonium Nitrate and Anhydrous Ammonia.
Congress provided DHS authority to regulate security at chemical facilities in the Homeland
Security Appropriations Act, 2007 (P.L. 109-295, §550). This authority expires on October 4,
2013. Congressional policy makers are considering a range of actions in the 113th Congress,
including an extension or revision of this authority. Even before the explosion of the West
Fertilizer Company in West, TX, various stakeholders had criticized the content of DHS
regulation and the effectiveness and pace of its implementation and recommended changes to the
underlying statute. Recommended statutory changes include broadening the regulated
community,91 enabling the federal government to require adoption of particular security measures
at facilities,92 and increasing access to currently confidential vulnerability information. Other
87
Jack Fox, General Manager, Pipeline Security Division, Transportation Security Administration (TSA), remarks
before the Louisiana Gas Association Pipeline Safety Conference, New Orleans, LA, July 25, 2012.
88
U.S. Dept. of Transportation, Office of Inspector General, Actions Needed to Enhance Pipeline Security, Pipeline
and Hazardous Materials Safety Administration, Report No. AV-2008-053, May 21, 2008, p. 6.
89
The Honorable Gus M. Billirakis, Remarks before the House Committee on Homeland Security, Subcommittee on
Management, Investigations, and Oversight hearing on “Unclogging Pipeline Security: Are the Lines of Responsibility
Clear?,” Plant City, FL, April 19, 2010.
90
U.S. Government Accountability Office, Pipeline Security: TSA Has Taken Actions to Help Strengthen Security, but
Could Improve Priority-Setting and Assessment Processes, GAO-10-867 August 4, 2010, pp. 56-57.
91
See, for example, Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate,
Department of Homeland Security, before the Senate Committee on Homeland Security and Governmental Affairs,
March 3, 2010.
92
See, for example, Testimony by Paul Orum, Blue Green Chemical Security Coalition/ Independent Consultant to
Center for American Progress, before the House Committee on Energy and Commerce, Subcommittee on Environment
(continued...)
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stakeholders, including many industry representatives, support an extension of the existing
authority without any changes.93
DHS regulates chemical facilities for security purposes. The Obama Administration and other
stakeholders have determined that existing regulatory exemptions, such as for community water
systems and wastewater treatment facilities, pose potential risks. Environmental and “right-toknow” groups additionally advocate that Congress include requirements for facilities to adopt or
identify “inherently safer technologies” and widely disseminate security-related information to
first responders and employees. The regulated industry generally opposes granting DHS the
ability to require implementation of inherently safer technologies or other specific security
measures. They question the maturity and applicability of the inherently safer technology concept
as a security measure and cite the need to tailor security approaches for each facility. The Obama
Administration has identified potential security concerns if chemical security-related information
is more broadly disseminated, but the discovery that information about the chemical inventory of
the West Fertilizer Company was not effectively shared between federal agencies has led to
reconsideration of existing information sharing policies. The Obama Administration issued
Executive Order 13650, Improving Chemical Facility Safety and Security, to begin a multiagency
effort to coordinate federal efforts. Challenges facing policy makers include whether to extend or
change the existing statutory authority, whether to mandate consideration or implementation of
inherently safer technologies, what the appropriate balance is between protecting security
information and releasing information to non-governmental stakeholders, and how to assess and
potentially ameliorate costs associated with implementing required security measures.
While the DHS regulatory program is still in its early stages, it has experienced significant
implementation challenges and delays. Few of the thousands of regulated chemical facilities have
fully complied with the DHS chemical security regulations,94 the Government Accountability
Office estimates that it will be seven to nine years before DHS has completed review and
approval of information submitted by regulated facilities,95 and congressional policy makers have
questioned the efficacy of DHS regulatory activities.96 Policy makers performing oversight of the
program face critical decisions regarding program changes. Significant changes could increase
implementation delays, but such changes may be most effective if made early in the program’s
implementation, rather than later after companies have invested in specific security measures.
(...continued)
and the Economy, September 11, 2012.
93
See, for example, Testimony of Matthew J. Leary, Pilot Chemical Company, on behalf of the Society of Chemical
Manufacturers and Affiliates, before the House Committee on Energy and Commerce, Subcommittee on Environment
and the Economy, September 11, 2012.
94
Testimony of David Wulf, Director, Infrastructure Security Compliance Division, National Programs and Protection
Directorate, Department of Homeland Security, before the House Committee on Homeland Security, Subcommittee on
Cybersecurity, Infrastructure Protection, and Security Technologies, on August 1, 2013.
95
Government Accountability Office, Critical Infrastructure Protection: DHS Efforts to Assess Chemical Security Risk
and Gather Feedback on Facility Outreach Can Be Strengthened, GAO-13-353, April 2013.
96
See, for example, Representative Robert Aderholt, Chairman, Subcommittee on Homeland Security, House
Committee on Appropriations, Opening Statement as Prepared for Delivery at Hearing on Chemical Security AntiTerrorism Standards Program, July 26, 2012.
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Security of Wastewater and Water Utilities
(name redacted), Specialist in Resources and Environmental Policy,
([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report RL32189, Terrorism and Security Issues Facing the
Water Infrastructure Sector.
The systems that comprise the nation’s water supply and water quality infrastructure have long
been recognized as being potentially vulnerable to terrorist attacks of various types, including
physical disruption, bioterrorism/chemical contamination, and cyber attack. Across the country,
these systems consist of 16,000 publicly owned wastewater treatment facilities and 168,000
public drinking water facilities, plus thousands of miles of pipes, aqueducts, water distribution,
and sewer lines. Damage or destruction could disrupt the delivery of vital human services,
threatening public health and the environment, or possibly causing loss of life. In recognition,
Congress and other policy makers have considered a number of initiatives in this area, including
enhanced physical security of water infrastructure facilities, improved communication and
coordination, and research. Recent policy interest has focused on two issues: (1) security of
wastewater utilities, and (2) whether to include wastewater and water utilities in chemical plant
security regulations implemented by DHS.
When Congress created DHS in 2002,97 it gave DHS responsibility to coordinate information to
secure the nation’s critical infrastructure, including the water sector, through partnerships with the
public and private sectors. Under Homeland Security Presidential Directive 7, the Environmental
Protection Agency (EPA) is the lead federal agency for protecting wastewater and drinking water
utility systems, because EPA has regulatory authority over both types of water utilities under the
Clean Water Act and the Safe Drinking Water Act, respectively. Separately, in P.L. 107-188,98
Congress required drinking water systems serving more than 3,300 persons to conduct
vulnerability analyses and to submit the assessments to EPA. Congressional committees have on
several occasions considered legislation to encourage or require wastewater treatment facilities to
similarly conduct vulnerability assessments and develop site security plans (such as H.R. 2883 in
the 111th Congress), but no bill has been enacted.
Congress also has been considering requirements for wastewater and drinking water utilities in
connection with legislation to establish risk-based and performance-based security standards at
the nation’s chemical plants (see discussion of “Security of Chemical Facilities”). Issues debated
for some time include (1) whether to preserve an existing exemption for water utilities from
chemical facility standards or include them in the scope of DHS rules under the Chemical Facility
Anti-Terrorism Standards program (CFATS); and (2) whether water utilities that store or use
extremely hazardous substances, such as chlorine gas, should be required to consider the use of
different chemicals or safer processes (so-called “inherently safer technology”). A third issue is
what roles EPA and DHS should play in implementing such requirements and generally in
overseeing homeland security at wastewater and drinking water utilities. There has been
considerable debate about coordination between EPA and DHS and whether EPA’s lead role for
the water utility sector should be altered. Water utilities have urged Congress not to create a dual
or split regulatory arrangement between two agencies, arguing that EPA has long-standing
97
98
P.L. 107-297; 116 Stat. 2322.
The Public Health Security and Bioterrorism Preparedness and Response Act, 116 Stat. 594.
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expertise in wastewater and water regulatory and security issues. Others have argued that DHS
should have overall responsibility.
Legislative proposals addressing these issues that received committee approval in the 112th
Congress differed in a number of respects but reflected apparent consensus regarding water utility
issues: they would have preserved the existing exemption from the DHS CFATS program, and
none would have mandated inherently safer technology. Further, none would have altered EPA’s
lead role for the water utility sector. None of these bills was enacted by the 112th Congress. A
provision of the Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6),
extended authority for the existing CFATS program through October 4, 2013. In addition,
legislation that would extend statutory authority for the CFATS program for another year, through
October 4, 2014 (H.R. 2217), has passed the House and been reported by the Senate
Appropriations Committee.99
Other legislation introduced in the 113th Congress (S. 67, the Secure Water Facilities Act) would
add coverage of wastewater and drinking water facilities in the CFATS program and would
require certain facilities in the water sector that handle chemicals to take action to reduce the
consequences of a terrorist attack, such as using different chemicals, or changing to inherently
safer technology (IST). The bill would not alter EPA’s lead role in regulating wastewater facilities
and community water systems for security purposes.
Since the terrorist attacks of 2001, wastewater and water utilities have been engaged in numerous
activities to assess potential vulnerabilities and strengthen facility and system protections.
Congressional oversight of this sector’s homeland security activities has been limited but could
be of interest in the 113th Congress.
Transit Security
(name redacted), Analyst in Transportation Policy ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report RL33512, Transportation Security: Issues for the
113th Congress.
Bombings of passenger trains in Europe and Asia in the past several years illustrate the
vulnerability of passenger rail systems to terrorist attacks. Passenger rail systems—primarily
subway systems—in the United States carry about five times as many passengers each day as do
airlines, over many thousands of miles of track, serving stations that are designed primarily for
easy access. The increased security efforts around air travel have led to concerns that terrorists
may turn their attention to “softer” targets, such as transit or passenger rail. A key challenge
Congress faces is balancing the desire for increased rail passenger security with the efficient
functioning of transit systems, with the potential costs and damages of an attack, and with other
federal priorities.
99
The CFATS anti-terrorism standards were mandated in DHS funding legislation enacted in 2006 (P.L. 109-295).
They were initially established on an interim basis for three years, but Congress has been extending them on a year-toyear basis.
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The volume of ridership and number of access points make it impractical to subject all rail
passengers to the type of screening airline passengers undergo. Consequently, transit security
measures tend to emphasize managing the consequences of an attack. Nevertheless, steps have
been taken to try to reduce the risks, as well as the consequences, of an attack. These include
vulnerability assessments; emergency planning; emergency response training and drilling of
transit personnel (ideally in coordination with police, fire, and emergency medical personnel);
increasing the number of transit security personnel; installing video surveillance equipment in
vehicles and stations; and conducting random inspections of bags, platforms, and trains.
The challenges of securing rail passengers are dwarfed by the challenge of securing bus
passengers. There are some 76,000 buses carrying 19 million passengers each weekday in the
United States. Some transit systems have installed video cameras on their buses, and Congress
has provided grants for security improvements to intercity buses. But the number and operation
characteristics of transit buses make them all but impossible to secure.
The Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53), passed
by Congress on July 27, 2007, included provisions on passenger rail and transit security and
authorized $3.5 billion for FY2008-FY2011 for grants for public transportation security. The act
required public transportation agencies and railroads considered to be high-risk targets by DHS to
have security plans approved by DHS (§§1405 and 1512). Other provisions required DHS to
conduct a name-based security background check and an immigration status check on all public
transportation and railroad frontline employees (§§1414 and 1522), and gave DHS the authority
to regulate rail and transit employee security training standards (§§1408 and 1517).
In 2010 TSA completed a national threat assessment for transit and passenger rail, and in 2011
completed an updated transportation systems-sector specific plan, which established goals and
objectives for a secure transportation system. The three primary objectives for reducing risk in
transit are to:
•
mitigate risks to high-risk/high-consequence assets;
•
expand operational deterrence activities; and
•
enhance information sharing.100
TSA surface transportation security inspectors conduct assessments of transit systems (and other
surface modes) through the agency’s Baseline Assessment for Security Enhancement (BASE)
program. The agency has also developed a security training and security exercise program for
transit (I-STEP), and its Visible Intermodal Prevention and Response (VIPR) teams conduct
operations with local law enforcement officials, including periodic patrols of transit and
passenger rail systems, to create “unpredictable visual deterrents.”
The House Committee on Homeland Security’s Subcommittee on Transportation Security held a
hearing in May 2012 to examine the surface transportation security inspector program. As
discussed at the hearing, the number of inspectors had increased from 175 in FY2008 to 404 in
FY2011 (full-time equivalents). Issues considered at the hearing included the lack of surface
transportation expertise among the inspectors, many of whom were promoted from screening
passengers at airports; the administrative challenge of having the surface inspectors managed by
100
Department of Homeland Security, Transportation Security Administration, Surface Transportation Security
FY2013 Congressional [Budget] Justification, p. 14.
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federal security directors who are located at airports, and who themselves typically have no
surface transportation experience; and the security value of the tasks performed by surface
inspectors.101
The Department of Homeland Security (DHS) provides grants for security improvements for
public transit, passenger rail, and occasionally other surface transportation modes under the
Urban Area Security Initiative program (see Table 1). The vast majority of the funding goes to
public transit providers. The Transit Security Grant Program (TSGP) did not receive a specified
amount of funding in FY2012, as Congress left program funding allocations to the discretion of
DHS.
Table 1. Congressional Funding for Transit Security, FY2002-FY2012
Fiscal year
Appropriation
(millions of dollars)
2002
$63a
2003
65
2004
50
2005
108
2006
131
2007
251
2008
356
2009
498b
2010
253
2011
200
2012
88c
2013
84
Total
$2,063
Source: FY2002: Department of Defense FY2002 Appropriations Act, P.L. 107-117; FY2003: FY2003 Emergency
Wartime Supplemental Appropriations Act, P.L. 108-11; FY2004: Department of Homeland Security FY2004
Appropriations Act, P.L. 108-90; FY2005-FY2011: United States Government Accountability Office, Homeland
Security: DHS Needs Better Project Information and Coordination among Four Overlapping Grant Programs, GAO-12303, February 2012, Table 1; FY2012: DHS, Transit Security Grant Program FY2012 Funding Opportunity
Announcement; FY2013: DHS, FY2013 Transit Security Grant Program FY2013 Funding Opportunity Announcement
Notes: The Transit Security Grant Program was formally established in FY2005; in FY2003-FY2004, grants were
made through the Urban Areas Security Initiative. Does not include funding provided for security grants for
intercity passenger rail (Amtrak), intercity bus service, and commercial trucking.
a.
Appropriated to Washington Metropolitan Area Transit Authority and the Federal Transit Administration.
b.
Includes $150 million provided in the American Recovery and Reinvestment Act.
c.
Congress did not specify an amount for transit security grants, leaving funding to the discretion of DHS.
101
United States House of Representatives, Committee on Homeland Security, Subcommittee on Transportation
Security, Hearing on TSA’s Surface Inspection Program: Strengthening Security or Squandering Resources?, May 31,
2012, http://homeland.house.gov/hearing/subcommittee-hearing-tsa%E2%80%99s-surface-inspection-programstrengthening-security-or-squandering.
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In a February 2012 report, the Government Accountability Office found opportunity for
duplication among four DHS state and local security grant programs with similar goals, one of
which was the public transportation security grant program.102 The Obama Administration
proposed consolidating several of these programs in the FY2013 budget. This proposal was not
supported by congressional appropriators, though appropriators have expressed concerns that
grant programs have not focused on areas of highest risk and that significant amounts of
previously appropriated funds have not yet been awarded to recipients.103
Border Security and Trade
Southwest Border Issues
Spillover Violence
Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R41075, Southwest Border Violence: Issues in
Identifying and Measuring Spillover Violence.
There has been an elevated level of drug trafficking-related violence within and between the drug
trafficking organizations (DTOs) in Mexico, and some estimates have placed the number of drug
trafficking-related deaths in Mexico between December 2006 (when Mexican President Felipe
Calderón began his campaign against the DTOs) and December 2012 (when the Calderón
administration ended) at somewhere between 45,000 and 55,000.104 Mexican DTOs have been at
war with each other as well as with the Mexican police and military personnel who are attempting
to enforce the drug laws in northern Mexico along the U.S. border. Further, in an illegal
marketplace, such as that of illicit drugs, where prices and profits are elevated due to the risks of
operating outside the law, violence or the threat of violence becomes the primary means for
settling disputes.105 This has generated concern among U.S. policy makers that the violence in
Mexico might spill over into the United States. U.S. officials deny that the drug traffickingrelated violence in Mexico has resulted in a spillover into the United States, but they
acknowledge that the prospect is a concern.106
102
United States Governmental Accountability Office, Homeland Security: DHS Needs Better Project Information and
Coordination among Four Overlapping Grant Programs, GAO-12-303, February 2012.
103
For additional information on preparedness grant consolidation, see “Consolidation of DHS State and Local
Programs” in this report.
104
Homicide levels in Mexico—"largely attributable to drug trafficking and organized crime”—began an escalated
climb after 2007. There is debate as to whether this violence leveled off or slightly decreased in 2012; nonetheless,
researchers have noted that the violence remains “elevated.” University of San Diego, Trans-Border Institute, Drug
Violence in Mexico: Data and Analysis Through 2012, February 2013, pp. 1, 11.
105
Jeffrey A. Roth, “Psychoactive Substances and Violence,” National Institute of Justice (Research in Brief Series),
February 1994 (Washington, DC: U.S. Department of Justice).
106
Ramon Bracamontes, “CBP Chief Assesses the Border: Alan Bersin, in El Paso, Assures Safety, Backs Mexico’s
Fight,” El Paso Times, January 6, 2011.
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Mexican DTOs are reportedly the greatest drug trafficking threat to the United States.107 Mexican
DTOs either (1) transport or (2) produce and transport drugs north across the United StatesMexico border. After being smuggled across the border by DTOs, the drugs are distributed and
sold within the United States. The illicit proceeds may then be laundered or smuggled south
across the border. The proceeds may also be used to purchase weapons in the United States that
are then smuggled into Mexico. The United States is the largest marketplace for illegal drugs and
sustains a multi-billion dollar market in illegal drugs—thus partially fueling the threat posed by
the DTOs.108 While drugs are the primary goods trafficked by the DTOs, they also generate
income from other illegal activities, such as the smuggling of humans and weapons,
counterfeiting and piracy, kidnapping for ransom, and extortion. Reports of these crimes in the
United States have contributed to the fear of spillover violence.109
One issue that may be of concern to Congress involves determining exactly what constitutes
spillover violence above and beyond the level of drug trafficking-related violence that has
previously existed in the United States. The interagency community has defined “spillover
violence” as violence targeted primarily at civilians and government entities—excluding
trafficker-on-trafficker violence110—while other experts and scholars have maintained that
trafficker-on-trafficker violence is central to spillover.111 A clear definition of spillover that can be
used to track and analyze trends is central to debating policy options to prevent or mitigate such
violence.112 A related issue that Congress may consider is how to prevent drug trafficking-related
violence in Mexico from spilling into the United States. Potential options that experts have
presented include increasing border enforcement efforts; providing additional aid to Mexico to
support the disruption of organized crime, implementation of judicial reform, enhancement of a
21st century border, and strengthening communities;113 reducing drug demand in the United
States; and decriminalizing or legalizing certain drugs.
107
U.S. Department of Justice, National Drug Intelligence Center, National Drug Threat Assessment 2010, Product No.
2010-Q0317-001, February 2010, http://www.justice.gov/ndic/pubs38/38661/38661p.pdf.
108
Oriana Zill and Lowell Bergman, “Do the Math: Why the Illegal Drug Business is Thriving,” PBS Frontline,
http://www.pbs.org/wgbh/pages/frontline/shows/drugs/.
109
Elyssa Pachio, “Trial of Rogue Tijuana Gang Raises Question of Violence Spilling Over to San Diego,” InSight
Crime, March 5, 2012.
110
According to the DEA, “[S]pillover violence entails deliberate, planned attacks by the cartels on U.S. assets,
including civilian, military, or law enforcement officials, innocent U.S. citizens, or physical institutions such as
government buildings, consulates, or businesses. This definition does not include trafficker on trafficker violence,
whether perpetrated in Mexico or the U.S.” See Drug Enforcement Administration, Statement of Joseph M. Arabit
Special Agent in Charge, El Paso Division, Regarding “Violence Along the Southwest Border” Before the House
Appropriations Committee, Subcommittee on Commerce, Justice, Science and Related Agencies, March 24, 2009,
http://www.usdoj.gov/dea/speeches/s032409.pdf.
111
Testimony by David Shirk, Director, Trans-Border Institute, University of San Diego, before the U.S. Congress,
House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies, Federal
Law Enforcement Response to US-Mexico Border Violence, 111th Cong., 1st sess., March 24, 2009.
112
See CRS Report R41075, Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence by
Kristin M. Finklea. See also U.S. Government Accountability Office, Southwest Border Security: Data Are Limited and
Concerns Vary About Spillover Crime Along the Southwest Border, GAO-13-175, February 2013.
113
For more information on U.S. assistance to Mexico and on bilateral security cooperation, see CRS Report R41349,
U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond, by (name redacted) and (name redacted).
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Illicit Proceeds and the Southwest Border
Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov, 7-....)
The flow of money outside legal channels not only presents challenges to law enforcement, but it
also has a significant nexus with homeland security policy. Proceeds from illegal enterprises are
sometimes used to fund broader destabilizing activities, such as smuggling, illegal border
crossings, or more violent activities, such as the operations of the FARC (Revolutionary Armed
Forces of Colombia) and right-wing paramilitary groups in Colombia.114 While this is an issue
with a global scope, this section focuses specifically on the policies affected by movement of
illicit funds across the Southwest border.
The sale of illegal drugs in the United States generates somewhere between $18 billion and $39
billion in annual wholesale proceeds for Mexican and Colombian drug trafficking organizations
(DTOs).115 Money from the DTOs’ illegal sale of drugs in the United States is moved south across
the border into Mexico. Moving these funds from the United States into Mexico fuels the drug
traffickers’ criminal activities. This money is not directly deposited into the U.S. financial system,
but rather is illegally laundered through mechanisms such as bulk cash smuggling and the Black
Market Peso Exchange,116 or placed in financial institutions, cash-intensive front businesses,
prepaid or stored value cards, or money services businesses.117
The development of new technologies has provided outlets through which DTOs may conceal
their illicit proceeds.118 Increasingly, the use of stored value cards,119 mobile banking systems, and
other technologies allows traffickers to move profits more quickly and stealthily. In addition,
profits that the Mexican DTOs generate from the sale of Colombian cocaine can be moved
directly from the United States to the source country without traversing through middlemen.120
114
Office of the Coordinator for Counterterrorism, Country Reports on Terrorism 2009, U.S. Department of State,
Washington, DC, August 5, 2010, http://www.state.gov/s/ct/rls/crt/2009/140888.htm.
115
U.S. Department of Justice, National Drug Intelligence Center (NDIC), National Drug Threat Assessment 2009,
Product No. 2008-Q0317-005, December 2008, p.49, http://www.usdoj.gov/ndic/pubs31/31379/31379p.pdf. This is the
most recent estimate of total annual proceeds. With respect to bulk cash, the most recent NDIC threat assessment
(2010) indicates that from 2003 to 2004, an estimated $17.2 billion was smuggled from the United States to Mexico in
the form of bulk cash alone. See U.S. Department of Justice, National Drug Intelligence Center, National Drug Threat
Assessment 2010, Product No. 2010-Q0317-001, February 2010, p. 47, http://www.justice.gov/ndic/pubs38/38661/
38661p.pdf. (Hereinafter NDTA, 2010).
116
The Department of the Treasury defines the BPME as “a large-scale money laundering system used to launder
proceeds of narcotic sales in the United States by Latin American drug cartels by facilitating swaps of dollars in the
U.S. for pesos in Colombia through the sale of dollars to Latin America businessmen seeking to buy U.S. goods to
export,” http://www.fincen.gov/statutes_regs/guidance/html/advis04282006.html.
117
According to the Department of the Treasury, a money services business is any person or entity engaging in
activities including exchanging currency; cashing checks; issuing, selling, or redeeming travelers’ checks, money
orders, or stored value cards; and transmitting money. For more information, see http://www.fincen.gov/
financial_institutions/msb/definitions/msb.html.
118
See NDTA, 2010, pp. 47-50 for more information on developments in illicit finance.
119
According to the Code of Federal Regulations, stored value are “funds or monetary value represented in digital
electronics format (whether or not specially encrypted) and stored or capable of storage on electronic media in such a
way as to be retrievable and transferable electronically,” 31 C.F.R. §103.11(vv).
120
Douglas Farah, “Money Laundering and Bulk Cash Smuggling: Challenges for the Mérida Initiative,” in Shared
Responsibility: U.S.-Mexico Policy Options for Confronting Organized Crime, ed. Eric L. Olson, David A. Shirk, and
Andrew D. Selee (2010), p. 144.
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While bulk cash smuggling has been an important means by which criminals have moved illegal
profits from the United States into Mexico, traffickers have also turned to stored value cards to
move money. With these cards, criminals are able to avoid the reporting requirement under which
they would have to declare any amount over $10,000 in cash moving across the border. Current
federal regulations regarding international transportation only apply to monetary instruments as
defined under the Bank Secrecy Act (BSA).121 A stored value card is not, however, considered a
monetary instrument under current law, and thus is not subject to these international
transportation regulations. The Financial Crimes Enforcement Network (FinCEN) has issued a
proposed rule that would amend the definition of “monetary instrument,” for the purposes of BSA
international monetary transport regulations, to include prepaid access devices.122 Policy makers
may debate the proper balance between providing for the ease of legitimate monetary transactions
and inhibiting the movement of proceeds from illegal activities.
Various departments and agencies—including the Drug Enforcement Administration, Federal
Bureau of Investigation, U.S. Immigration and Customs Enforcement, U.S. Customs and Border
Protection, and FinCEN—share responsibility for combating drug-related activity and the flow of
illicit proceeds both along the Southwest border and throughout the United States. Many of these
agencies are also represented in Mexico, increasing U.S.-Mexican bilateral cooperation. Further,
while some efforts explicitly target money laundering and bulk cash smuggling, other efforts are
more tangentially related. For instance, operations targeting southbound firearms smuggling may
intercept individuals smuggling not only weapons, but cash proceeds from illicit drug sales as
well.
Cross-Border Smuggling Tunnels
Kristin M. Finklea, Specialist in Domestic Security ([redacted]@crs.loc.gov, 7-....)
Mexican traffickers rely on cross-border tunnels to smuggle persons and drugs, as well as other
contraband, from Mexico into the United States. The use of smuggling tunnels has increased not
only in frequency but in the sophistication of the tunnels themselves.123 More than 150 tunnels
have been discovered along the Southwest border since the 1990s;124 notably, there has been an
80% uptick in tunnels detected since 2008.125 Early tunnels were rudimentary “gopher hole”
tunnels dug on the Mexican side of the border, traveling just below the surface, and popping out
121
31 U.S.C. §5312(a)(3) defines a monetary instrument as “(A) United States coins and currency; (B) as the Secretary
may prescribe by regulation, coins and currency of a foreign country, travelers’ checks, bearer negotiable instruments,
bearer investment securities, bearer securities, stock on which title is passed on delivery, and similar material; and
(C) as the Secretary of the Treasury shall provide by regulation for purposes of sections 5316 and 5331, checks, drafts,
notes, money orders, and other similar instruments which are drawn on or by a foreign financial institution and are not
in bearer form.”
122
Department of the Treasury, “Bank Secrecy Act Regulations Definition of “Monetary Instrument,” 76 Federal
Register 64049, October 17, 2011. Entities such as the Senate Caucus on International Narcotics Control have urged the
Administration to finalize this rule. See, for instance, Senate Caucus on International Narcotics Control, The Buck
Stops Here: Improving U.S. Anti-Money Laundering Practices, April 2013.
123
Ken Stier, “Underground Threat: Tunnels Pose Trouble from Mexico to Middle East,” Time, May 2, 2009.
124
Statement of James A. Dinkins, Executive Associate Director, Homeland Security Investigations, U.S. Immigration
and Customs Enforcement, before the U.S. Congress, Senate United States Senate Caucus on International Narcotics
Control, Illegal Tunnels on the Southwest Border, 112th Cong., 1st sess., June 15, 2011.
125
Department of Homeland Security, Office of Inspector General, “CBP’s Strategy to Adress Illicit Cross-Border
Tunnels,” http://www.oig.dhs.gov/assets/Mgmt/2012/OIG_12-132_Sep12.pdf.
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on the U.S. side as close as 100 feet from the border. Slightly more advanced tunnels relied on
existing infrastructure, which may be shared by neighboring border cities such as Nogales, AZ, in
the United States and Nogales, Sonora, in Mexico. These interconnecting tunnels may tap into
storm drains or sewage systems, allowing smugglers to move drugs further and more easily than
in tunnels they dug themselves. The most sophisticated tunnels can have rail, ventilation, and
electrical systems. One of the most elaborate and sophisticated of such tunnels discovered to date
was found in November 2011 in San Diego, CA. It stretched 612 yards in length, boasted electric
rail cars, lighting, reinforced walls, and wooden floors, and its discovery resulted in the seizure of
32 tons of marijuana.126 In July 2012, three sophisticated drug smuggling tunnels were uncovered
along the Southwest border in less than a week.127
U.S. law enforcement uses various tactics to detect these cross-border tunnels. Law enforcement
may use sonic equipment to detect the sounds of digging and tunnel construction and seismic
technology to detect blasts that may be linked to tunnel excavation. Another tool for tunnel
detection is ground penetrating radar.128 However, factors including soil conditions, tunnel
diameter, and tunnel depth can limit the effectiveness of this technology.
Despite these tools, U.S. officials have acknowledged that law enforcement currently does not
have technology that is reliably able to detect sophisticated tunnels.129 Rather, tunnels are more
effectively discovered as a result of human intelligence and tips. U.S. officials have noted the
value of U.S.-Mexican law enforcement cooperation in detecting, investigating, and prosecuting
the criminals who create and use the cross-border tunnels.130 As a result, the 113th Congress may
not only consider how to best help U.S. law enforcement develop technologies that can keep pace
with tunneling organizations, but also examine whether existing bi-national law enforcement
partnerships are effective and whether they may be improved to enhance investigations of
transnational criminals.
Cargo Security
(name redacted), Specialist in Immigration Policy ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report R43014, U.S. Customs and Border Protection: Trade
Facilitation, Enforcement, and Security.
Approximately 25 million cargo containers arrived at U.S. ports of entry (POE) in FY2012, down
from a high point of 26 million in 2006, but up 4% over FY2011.131 U.S. Customs and Border
126
U.S. Drug Enforcement Administration, “Second Major Cross-Border Drug Tunnel Discovered South of San Diego
This Month: Investigators Seize 32 Tons of Marijuana, Arrest 6 Suspects,” press release, November 30, 2011,
http://www.justice.gov/dea/divisions/sd/2011/sd113011.shtml.
127
Elliot Spagat and Jacques Billeaud, “Drug Tunnels Discovered Between U.S.-Mexico Border Contained Railcar
System, Tons Of Pot,” Huffington Post, July 13, 2012.
128
For more information, see http://www.geophysical.com/militarysecurity.htm.
129
Statement of Laura E. Duffy, U.S. Attorney, Southern District of California, U.S. Department of Justice, before the
U.S. Congress, Senate United States Senate Caucus on International Narcotics Control, Illegal Tunnels on the
Southwest Border, 112th Cong., 1st sess., June 15, 2011.
130
Ibid.
131
CRS analysis of data provided by U.S. Customs and Border Security (CBP) Office of Legislative Affairs, August
23, 2012 and from U.S. Customs and Border Protection (CBP), “CBP’s 2012 Fiscal Year in Review,” February 1,
2013, http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/02012013_3.xml.
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Protection (CBP), within the Department of Homeland Security (DHS), is America’s primary
trade enforcement agency, and CBP seeks to balance the benefits of efficient trade flows against
the demand for cargo security and the enforcement of U.S. trade laws. Thus, the overarching
policy question with respect to incoming cargo is how to minimize the risk that weapons of mass
destruction (WMD), illegal drugs, and other contraband will enter through a U.S. port of entry
(POE), while limiting the costs and delays associated with such enforcement. Six laws enacted
between 2002 and 2007 included provisions related to the trade process and cargo security.132
CBP’s current trade strategy emphasizes “risk management” and a “multi-layered” approach to
enforcement.133 With respect to cargo security, risk management means that CBP segments
importers into higher and lower risk pools and focuses security procedures on higher-risk flows,
while expediting lower-risk flows. CBP’s “multi-layered approach” means that enforcement
occurs at multiple points in the import process, beginning before goods are loaded in foreign ports
and continuing months or years after the time goods have been admitted into the United States. In
recent years, congressional attention to cargo security has focused on one of CBP’s primary tools
for risk management, the Customs-Trade Partnership Against Terrorism (C-TPAT) trusted trader
program, and on the statutory requirement that 100% of incoming maritime cargo containers be
scanned abroad prior to being loaded on U.S.-bound ships. Congress also faces perennial
questions about spending levels on POE infrastructure and personnel.
Customs-Trade Partnership Against Terrorism (C-TPAT)
The Customs-Trade Partnership Against Terrorism (C-TPAT) is a voluntary public-private and
international partnership that permits certain import-related businesses to register with CBP and
perform security tasks prescribed by the agency. In return C-TPAT members are recognized as
low-risk actors and are eligible for expedited import processing and other benefits.134 CBP
established C-TPAT in November 2001 following the September 11, 2001 (9/11), terrorist attacks,
and the program was authorized as part of the Security and Accountability for Every Port Act of
2006 (SAFE Port Act, P.L. 109-347).
Some Members of Congress and some CBP officials favor increased participation in C-TPAT and
related programs as a way to facilitate legal trade flows.135 Yet some businesses have criticized
the program for providing inadequate membership benefits, especially in light of the time and
132
The Trade Act of 2002 (P.L. 107-210), the Maritime Transportation Security Act of 2002 (P.L. 107-295), the
Homeland Security Act of 2002 (P.L. 107-296), the Coast Guard and Maritime Transportation Act of 2004 (P.L. 108293), the Security and Accountability for Every Port Act of 2006 (SAFE Port Act, P.L. 109-347), and the
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act, P.L. 110-53).
133
See CBP, CBP Trade Strategy: Fiscal Years 2009-2013, Washington, DC, 2009, http://www.cbp.gov/linkhandler/
cgov/trade/trade_outreach/trade_strategy/cbp_trade_strategy.ctt/cbp_trade_strategy.pdf.
134
See U.S. CBP, “C-TPAT: Program Overview,” http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/
ctpat_program_information/what_is_ctpat/ctpat_overview.ctt/ctpat_overview.pdf. Commercial truck drivers who are
Customs-Trade Partnership Against Terrorism (C-TPAT) members also are eligible to join the Free and Secure Trade
System (FAST), which permits expedited processing at land ports of entry; and C-TPAT members who are residents of
the United States and are known importers that have businesses physically established, located, and managed within the
United States may be eligible for the Importer Self-Assessment Program (ISA), which exempts importers from certain
post-entry enforcement audits. See ibid., and U.S. Customs and Border Protection, “Fact Sheet: Fast and Secure
Trade,” http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/travel/fast/fast_fact.ctt/fast_fact.pdf.
135
See for example, U.S. Congress, House Committee on Ways and Means, Subcommittee on Trade, Supporting
Economic Growth and Job Creation through Customs Trade Modernization, Facilitation, and Enforcement, 112th
Cong., 2nd sess.. May 17, 2012.
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financial investments required to become certified as C-TPAT members.136 In particular, even
with expedited processing, C-TPAT members may face delays during the import process as a
result of limited coordination between CBP and the other 46 government agencies that play a role
in trade enforcement. Thus, while many large import-related businesses have joined C-TPAT, the
Congressional Research Service (CRS) estimates that only about 6% of all eligible import-related
businesses and about 8% of eligible customs brokers have joined the program.137 Congress may
consider legislation to increase C-TPAT benefits or take other steps to encourage C-TPAT
participation and thereby facilitate lawful trade flows.138
Yet there may be no easy way to substantially expand C-TPAT benefits. In the case of land ports,
the primary trusted trader benefit is access to dedicated lanes where wait times may be shorter
and more predictable. But adding lanes at land ports is difficult because many of them are located
in urban areas with limited space for expansion and with limited ingress and egress
infrastructure.139 In the case of maritime imports, the primary trusted trader benefit is a reduced
likelihood of secondary inspection.140 But only about 4% of all maritime containers currently are
selected for such an inspection,141 so C-TPAT membership may offer little practical advantage in
this regard. In addition, some CBP officials have told CRS that further reduction in C-TPAT
inspections may raise security risks because smugglers may establish clean companies and join
the program in order to game the system.142
100% Scanning Requirement
Section 231 of the SAFE Port Act directed the Department of Homeland Security (DHS), in
coordination with the Department of Energy (DOE), the private sector, and foreign governments,
to pilot an integrated system in three foreign ports to scan 100% of cargo containers destined for
the United States from those ports.143 Section 232 of the law required that 100% of cargo
136
Ibid.
As of August 22, 2012, 10,337 businesses had joined C-TPAT, including 845 customs brokers, according to data
provided by CBP Office of Legislative Affairs, August 24, 2012. By comparison, U.S. Census data indicates that there
were 181,648 U.S. importers in 2010 and CBP data indicate that there were 11,000 customs brokers; see U.S. Census,
“A Profile of U.S. Importing and Exporting Companies, 2009-2010,” http://www.census.gov/foreign-trade/PressRelease/edb/2010/edbrel.pdf; and CBP, “Becoming a Customs Broker,” http://www.cbp.gov/xp/cgov/trade/
trade_programs/broker/brokers.xml. Nonetheless, data from the CBP Office of Legislative Affairs also indicate that CTPAT members account for 50-56% of all imports by value.
138
See for example, §§201-202 of the Trade Facilitation and Trade Enforcement Reauthorization Act of 2013 (S.
662/H.R. 3004), which would direct CBP to consult with private sector entities and coordinate with other federal
agencies to ensure that participants in trusted trader programs “receive commercially significant and measurable trade
benefits.” Certain C-TPAT benefits are described in statute under §§213-216 of the SAFE Port Act of 2006.
139
See U.S. Department of Commerce, Draft Report: Improving Economic Outcomes by Reducing Border Delays,
Facilitating the Vital Flow of Commercial Traffic Across the US-Mexican Border, Washington, DC, 2008,
http://grijalva.house.gov/uploads/
Draft%20Commerce%20Department%20Report%20on%20Reducing%20Border%20Delays%20Findings%20and%20
Options%20March%202008.pdf.
140
Secondary inspection may include both non-intrusive imaging (NII) scans and/or physical inspection, in which the
container may be opened and unpacked so that materials can be examined.
141
CRS analysis of data provided by U.S. Customs and Border Security (CBP) Office of Legislative Affairs, August
23, 2012.
142
Also see Tony Payan, The Three U.S.-Mexico Border Wars: Drugs, Immigration, and Homeland Security
(Westport, CT: Praeger, 2006), pp. 34-36.
143
The 100% scanning pilot program is known as the Secure Freight Initiative (SFI). Following DHS’s evaluation of
(continued...)
137
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containers imported into the United States be screened by DHS to identify high-risk containers,
and that 100% of containers identified as high risk also be scanned through non-intrusive
inspection (NII) and radiation detection equipment before arriving in the United States.144 In
2007, Section 1701 of the Implementing Recommendations of the 9/11 Commission Act of 2007
(9/11 Act) (P.L. 110-53) amended the SAFE Port Act to require that by July 1, 2012, 100% of
maritime containers imported to the United States—that is, from all ports, whether or not they are
identified as high-risk—be scanned by NII and radiation detection equipment before being loaded
onto a U.S.-bound vessel in a foreign port. Nonetheless, as of August 2012, just 1% of cargo was
scanned with NII before being loaded on U.S.-bound ships—and only about 5% of cargo was
subject to NII scanning at any point prior to entering the United States.145
On May 2, 2012, DHS Secretary Janet Napolitano notified Members of Congress that she would
exercise her authority under the 9/11 Act to extend the deadline for 100% scanning.146 The
decision to delay implementation of the 100% scanning program partly reflects the department’s
findings from its evaluation of the pilot program. In its final report to Congress on the program,
CBP identified three main obstacles to implementing 100% scanning at all foreign ports.147 First,
100% scanning requires significant host state and private sector cooperation, but some foreign
governments and business groups do not support 100% scanning. Second, 100% scanning would
be logistically difficult. Initial pilots were deployed in relatively low-volume ports with natural
chokepoints, but many cargo containers pass through large volume ports with more varied port
architectures. Third, 100% scanning would be costly. In February 2012, the Congressional Budget
Office (CBO) estimated that 100% scanning at foreign ports would cost an average of $8 million
per shipping lane to implement, or a total of about $16.8 billion for all 2,100 shipping lanes.148
Port operators and foreign partners also absorb additional costs associated with fuel and utilities,
staffing, and related expenses. More generally, 100% scanning conflicts with DHS’s overall
(...continued)
the SFI in 2012, the program was scaled back to a single port, Port Qasim, in Pakistan.
144
The risk-based scanning program is known as the Container Security Initiative (CSI).
145
CRS analysis of data provided by U.S. Customs and Border Security (CBP) Office of Legislative Affairs, August
23, 2012.
146
Letter from Janet Napolitano, Secretary of Homeland Security, to Hon. Joseph I. Lieberman, Senator, May 2, 2012.
The 9/11 Act permits the Secretary to extend the deadline by two years and in additional two-year increments by
certifying that two of the following conditions exist: that scanning systems are not available, are insufficiently accurate,
cannot be installed, cannot be integrated with existing systems, will significantly impact trade and the flow of cargo,
and/or do not provide adequate notification of questionable or high-risk cargo. In her notification to Congress,
Secretary Napolitano certified that the use of systems to scan containers would have a significant and negative impact
on trade capacity and cargo flows, and that systems to scan containers cannot be purchased, deployed, or operated at
overseas ports due to limited physical infrastructure.
147
See U.S. CBP, Report to Congress on Integrated Scanning System Pilots (Security and Accountability for Every
Port Act of 2006, §231). Also see U.S. GAO, Supply Chain Security: Container Secuirty Programs Have Matured, but
Uncertainty Persists over the Future of 100 Percent Scanning, GAO-12-422T, February 7, 2012, http://www.gao.gov/
assets/590/588253.pdf. Also see letter from Janet Napolitano, Secretary of Homeland Security, to Hon. Joseph I.
Lieberman, Senator, May 2, 2012.
148
Spoken response by Kevin McAleenan, Acting Assistant Commissioner, Office of Field Operations, U.S. CBP, U.S.
Department of Homeland Security, before the Border and Maritime Security Subcommittee of the Homeland Security
Committee, U.S. House, hearing “Balancing Maritime Security and Trade Facilitation: Protecting our Ports, Increasing
Commerce and Securing the Supply Chain - Part I,” February 7, 2012. CBP reports that the U.S. government spent a
total of about $120 million during the first three years of the Secure Freight Initiative; CBP, Report to Congress on
Integrated Scanning System Pilots, p. 13.
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approach to risk management, which seeks to focus scarce inspection resources on the highestrisk containers.149
Some Members of Congress have expressed frustration that DHS has made little progress toward
implementing 100% scanning.150 Congress may continue to monitor the 100% scanning
requirement and encourage DHS to scan a higher proportion of inbound cargo. On the other hand,
in light of the difficulties DHS has identified, Congress may consider changes to the 100%
scanning requirement, potentially including provisions to allow DHS to scan less than 100% of
U.S.-bound cargo or to allow certain scanning to occur within U.S. ports rather than abroad. In its
report to accompany the Department of Homeland Security Appropriations Bill, 2014 (H.R.
2217), the House Appropriations Committee directed DHS, in light of the department’s finding
that 100% scanning is cost-prohibitive, to submit an alternative strategy for cargo scanning to
Congress by January 1, 2014.151
Port of Entry (POE) Infrastructure and Personnel
In light of the substantial flow of cargo and travelers at ports of entry (also see “Immigration
Inspections at Ports of Entry”), one perennial issue for Congress is how to allocate resources for
CBP Office of Field Operations (OFO) personnel and for port infrastructure. Some in Congress
have argued that inadequate personnel and infrastructure have contributed to costly delays and
unpredictable wait times at ports of entry, particularly at land ports on the U.S.-Mexico border.152
In general, Congress has invested more heavily since 2011 in enforcement personnel between
ports of entry (i.e., U.S. Border Patrol agents) than in OFO officers (also see “Enforcement
Between Ports of Entry”).153 The Obama Administration’s FY2014 budget request proposed to
increase OFO personnel by 3,477 officers (on top of 21,775 officers deployed in FY2013)
through a combination of appropriations and increased user fees, but the House-passed DHS
appropriations act (H.R. 2217) included funding for only about 800 new officers, while the
Senate-reported version of the bill would support 1,850 officers.154 Other legislation under
consideration in both chambers also would require CBP to deploy additional officers at POEs.155
DHS also has proposed to expand POE inspection services while controlling costs by forming
public-private partnerships (PPPs) with private sector and/or sub-federal government agencies to
support customs and immigration services at certain ports of entry. Current law generally
prohibits Customs and Border Protection from receiving reimbursement for POE services or from
149
See U.S. CBP, “CBP Trade Strategy: Fiscal Years 2009-2013,” Washington, DC: 2009.
See for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime
Security, Balancing Maritime Security and Trade Facilitation: Protecting Our Ports, Increasing Commerce, and
Securing the Supply Chain - Part I, 112th Cong., 2nd sess., February 7, 2012.
151
H.Rept. 113-91, p. 32.
152
See, for example, U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime
Security, Using Technology to Facilitate Trade and Enhance Security at Our Ports of Entry, 112th Cong., 2nd sess.,
May 1, 2012. On border wait times, also see GAO, CBP Action Needed to Improve Wait Time Data and Measure
Outcomes of Trade Facilitation Effort, GAO-13-603, July 24, 2013.
153
According to a CRS analysis of data provided by CBP Office of Congressional Affairs in January 2013, staffing for
enforcement between ports of entry more than doubled between FY2004 and FY2012 (increasing from 10,819 to
21,394), while staffing at ports of entry increased just 20% during this period (from 18,110 to 21,790).
154
H.Rept. 113-91, pp. 30-31; S.Rept. 113-77, p. 33.
155
See for example the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), as
passed by the Senate, and the Putting Our Resources Toward Security (PORTS) Act (H.R. 583).
150
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collecting extra fees as compensation for providing services outside of normal business hours,
and so limits CBP’s authority to form such partnerships.156 But pursuant to the Administration’s
FY2013 budget request, Section 560 of the FY2013 DHS appropriations act (Division D of P.L.
113-6) established a pilot program to permit CBP to enter into up to five PPPs to support customs
and immigration services at certain ports of entry. The Administration’s FY2014 request included
similar language regarding five pilot projects, and requested authority to expand the partnerships
program by permitting DHS to accept donations of real and personal property (including
monetary donations) from private parties and state and local government entities for the purpose
of constructing or expanding POE facilities. The House-passed Department of Homeland Security
Appropriations Act, 2014 (H.R. 2217) does not include language supporting the Administration’s
request, and the Trade Facilitation and Trade Enforcement Reauthorization Act of 2013 (S.
662/H.R. 3004) would strike the existing pilot program. On the other hand, the Senate-reported
version of H.R. 2217 would reauthorize the PPP pilot program, and also would meet the
Administration’s request to authorize CBP to accept donations for the purpose of constructing or
operating POEs.157
Domestic Nuclear Detection
(name redacted), Specialist in Science and Technology Policy ([redacted]@crs.loc.gov, 7-....)
Congress has emphasized the need to detect and interdict smuggled nuclear and radiological
material before it enters the United States, funding investment in nuclear detection domestically
and abroad. DHS has adopted a strategy of securing the border through emplacement of radiation
portal monitors and non-intrusive imaging equipment. Some experts have criticized this
combined system as insufficient to detect all smuggled special nuclear material. DHS has spent
several years developing, testing, and evaluating next-generation detection equipment. Several of
these next-generation systems, the Advanced Spectroscopic Portal and the Cargo Advanced
Automated Radiography System, did not meet testing and evaluation milestones, lagged
performance and timeline expectations, and ultimately were not procured.158
DHS has deployed radiation portal monitors and other nuclear and radiological material detection
equipment since its establishment. In 2005, DHS established a new office, the Domestic Nuclear
Detection Office (DNDO), to research, develop, and procure needed necessary detection
equipment and coordinate DHS nuclear detection activities located mainly in Customs and Border
Protection, U.S. Coast Guard, and the Transportation Security Administration. The Government
Accountability Office (GAO) and other groups have questioned the efficacy of DNDO’s efforts to
develop a next-generation radiation detection system.
156
19 U.S.C. §58b restricts CBP’s authority to receive reimbursement to cases in which the volume or value of
business cleared through the port is too low to justify the availability of customs services and if the governor of the
state in which the port is located approves the arrangement; and 19 U.S.C. §1451 restricts CBP’s ability to collect extra
fees as compensation for providing services outside of normal business hours.
157
Also see CRS Report R43147, Department of Homeland Security: FY2014 Appropriations, coordinated by (name re
dacted).
158
For a brief overview of challenges with the Advanced Spectroscopic Portal and the Cargo Advanced Automated
Radiography System, see Government Accountability Office, Combating Nuclear Smuggling: DHS Has Developed a
Strategic Plan for Its Global Nuclear Detection Architecture, but Gaps Remain, GAO-11-869T, July 26, 2011.
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As mentioned in the preceding section, Congress also has required DHS to scan all containerized
cargo entering the United States for nuclear and radiological material. DHS has not yet met this
requirement, and stakeholders question whether the DHS approach will meet this requirement in
the future. In addition, a shortfall of a key neutron detection material, helium-3, has forced a
reconsideration of the current nuclear detection approach.159 DHS has invested in testing new
neutron-detection materials and refitting deployed systems with alternative neutron-detection
capabilities. As currently deployed systems approach their design lifetime, DHS and
congressional decision-makers face questions whether to recapitalize these systems or further
invest in next-generation technology.
DHS activities to detect smuggled radiological and nuclear materials at the U.S. border are part of
a large interagency effort to develop a global nuclear detection architecture (GNDA). Congress
made DHS, through DNDO, responsible for coordinating federal efforts within the GNDA and
implementing this architecture domestically. A GNDA strategic plan has been released, and DHS
has developed an implementation plan for its portion of the GNDA.160 Other agencies have not
yet developed equivalent implementation plans. While GAO has identified weaknesses in the
GNDA strategic plan, it has also generally supported DHS’s development of an implementation
plan.
The 113th Congress may continue its oversight over the development, testing, and procurement of
current and next-generation nuclear detection equipment, interagency coordination in nuclear
detection, the sufficiency of the global nuclear detection architecture that links this equipment
together, and DHS’s approach to the helium-3 shortage.
Transportation Worker Identification Credential (TWIC)
(name redacted), Specialist in Transportation Policy ([redacted]@crs.loc.gov, 7-....)
For more information, see CRS Report RL33512, Transportation Security: Issues for the
113th Congress.
On January 25, 2007, TSA and the Coast Guard issued a final rule implementing the TWIC at
U.S. ports.161 Longshoremen, port truck drivers, railroad workers, merchant mariners, and other
workers at a port must apply for a TWIC card to obtain unescorted access to secure areas of port
facilities or vessels. The card was authorized under the Maritime Transportation Security Act of
2002 (MTSA, §102 of P.L. 107-295). Since October 2007, when TSA began issuing TWICs,
about 2.3 million maritime workers have obtained a card. The card must be renewed every five
years, so many workers must renew their cards for the first time.
TSA conducts a security threat assessment of each worker before issuing a card. The security
threat assessment uses the same procedures and standards established by TSA for truck drivers
159
See CRS Report R41419, The Helium-3 Shortage: Supply, Demand, and Options for Congress, by (name redacted)
and (name redacted) for background.
160
See Gowadia, Dr. Huban, written testimony in his capacity as Acting Director, Domestic Nuclear Detection Office,
before the House Committee on Homeland Security, Subcommittee on Infrastructure Protection, and Security
Technologies, “Preventing Nuclear Terrorism: Does DHS have an Effective and Efficient Nuclear Strategy,” July 26,
2012.
161
Federal Register, v. 72, no. 16, January 25, 2007, pp. 3492 - 3604. Codified at 49 CFR 1572.
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carrying hazardous materials, including examination of the applicant’s criminal history,
immigration status, and possible links to terrorist activity to determine whether a worker poses a
security threat. A worker pays a fee of about $130 that is intended to cover the cost of
administering the cards. A worker must visit an enrollment site twice, once to apply for the card
and provide biometric information and a second time to pick up the card and confirm
identification with biometric information.162
The card uses biometric technology for positive identification. Terminal operators are to deploy
card readers at the gates to their facilities, so that a worker’s fingerprint template will be scanned
each time he enters the port area and matched to the data on the card. However, despite a
statutory deadline of 2009 for issuance of a final rule on card reader deployment, TSA has not yet
determined what kind of card reader technology to require.163 In the absence of card readers, the
card is currently being used as a “flash pass,” and the biometric data on the card are not being
used to positively identify the worker.
In March 2013, the Coast Guard issued a notice of proposed rulemaking (NPRM)164 in which it
proposed requiring card readers only for facilities or vessels handling dangerous bulk
commodities (including barge fleeting areas) or facilities handling more than 1,000 passengers at
a time—maritime sectors the Coast Guard considers to be of higher risk. The Coast Guard
estimates that 38 U.S.-flag vessels and 352 facilities would be required to have card readers,
which equates to about 0.3% of the vessels and 16% of the facilities it regulates under MTSA.
Other vessels and facilities, including those handling containerized cargo, will continue to use the
TWIC as a “flash pass,” unless the Coast Guard amends the rulemaking at a future date. The
comment period for the NPRM closed on June 20, 2013; the Coast Guard plans to take a year to
review the comments.165
Recent GAO audits have been highly critical of how TWIC is being implemented. A 2013 audit
found that the results of a pilot test of card readers should not be relied upon for developing
regulations on card reader requirements because they were incomplete, inaccurate, and
unreliable.166 This audit was discussed at a hearing by the House Subcommittee on Government
Operations on May 9, 2013,167 and by the House Subcommittee on Border and Maritime Security
on June 18, 2013.168 Another 2013 GAO audit examined TSA’s Adjudication Center (which
162
Many workers have objected to the second visit, asking why the card could not be mailed to them. GAO has
reported that mailing the card would not meet government standards for issuing security credentials. GAO,
Transportation Worker Identification Credential: Mailing Credentials to Applicants’ Residence Would Not Be
Consistent with DHS Policy, GAO-11-542R, April 13, 2011. §709 of the Coast Guard and Maritime Transportation Act
of 2012 (P.L. 112-213) changes the process to require only one in-person visit by the applicant.
163
§104 of the SAFE Port Act (P.L. 109-347) set a deadline of April 13, 2009, for the issuance of a final rule on card
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