Department of Homeland Security: Consolidation of Border and Transportation Security Agencies

Congressional research reportMay 22, 2003

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Order Code RL31549

Report for Congress

Received through the CRS Web

Department of Homeland Security: Consolidation

of Border and Transportation Security Agencies

Updated May 22, 2003

name redacted

Analyst in Social Legislation

Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Department of Homeland Security: Consolidation of

Border and Transportation Security Agencies

Summary

The Homeland Security Act of 2002 (P.L. 107-296) transferred several border

and transportation security agencies to the newly established Department of

Homeland Security (DHS), which became operational March 1, 2003, consolidating

some of them in a Directorate of Border and Transportation Security. The Act

charges this new directorate with securing the borders; territorial waters; terminals;

waterways; and air, land and sea transportation systems of the United States; and

managing the nation’s ports of entry. As in the past, the challenge for policymakers

is to provide a level of border and transportation security that is commensurate with

a multitude of threats, while facilitating legitimate travel and commerce, as well as

protecting civil liberties.

The success of the Directorate will depend in large measure on the effective and

expedited coordination of transferred agencies and programs; development of a

unified strategic vision for departmental and directorate operations; leverage of new

and existing technologies to improve threat detection, but facilitate legitimate cross

border travel and trade; adequate funding and staffing; efficient deployment of

resources; and successful implementation of recently enacted border, port, and

transportation security-related legislation.

The agencies transferred to the Directorate of Border and Transportation

Security include the U.S. Customs Service, the enforcement programs of the former

Immigration and Naturalization Service (INS), the border and inspection programs

of the Animal and Plant Health Inspection Service, the Transportation Security

Administration, the Federal Protective Service, the Federal Law Enforcement

Training Center, and the Office for Domestic Preparedness. The new Department

recently announced the realignment of border management and security functions by

establishing two bureaus in the directorate; unifying commercial operations,

inspections, and land border patrol functions in one; and investigations, alien

detention and removal, air/marine drug interdiction operations, and federal protective

services in the other. The Coast Guard and the citizenship/services programs of INS

have been transferred to the Department of Homeland Security as a stand-alone

agency and bureau, outside of the directorate. Nonetheless, their activities will need

to be closely coordinated with the new directorate.

This report includes conceptual definitions for “border management” and

“border security;” descriptions of the missions of the principal border management

agencies; brief discussion of seaport and transportation security, since both are

integral to border security; and a brief exploration of issues raised by transferring the

Federal Protective Service, the Office for Domestic Preparedness, and the Federal

Law Enforcement Training Center to this new directorate. The report concludes with

an analysis of issues concerning the consolidation of various border and

transportation security agencies in the new Department of Homeland Security. This

report is intended as an analysis of border and transportation security issues attached

to the creation of the Department of Homeland Security. While some of these issues

may persist, this report will not be updated.

Key Policy Staff

Agency

Staff

Phone #

Immigration and Naturalization Service

(INS)

Ruth Wasem

(name redacted)

707-7342

707-4669

Bureau of Consular Affairs (CA)

Susan Epstein

Ruth Wasem (visas only)

707-6678

707-7342

U.S. Customs Service

Jennifer Lake

707-0620

Animal and Plant Health Inspection

Service (APHIS)

(name redacted)

U.S. Coast Guard

Martin Lee

Ronald O’Rourke

Seaport Security

(name redacted)

Transportation Security Administration

(TSA)

(name redacted)

John Fischer

707-7771

707-7766

Federal Protective Service (FPS)

(name redacted)

707-0646

Federal Law Enforcement Training

Center (FLETC)

William Krouse

707-2225

Office for Domestic Preparedness

(ODP)

Ben Canada

(name redacted)

707-0632

707-8672

707-9664

707-7260

707-7610

707-7033

Contents

Most Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Border Management and Transportation Security . . . . . . . . . . . . . . . . . . . . . 3

Border Management and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Consolidating Border and Transportation Security Missions . . . . . . . . 4

Building Security, Law Enforcement Training,

and Terrorism Preparedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

INS, Consular Affairs, and Immigration Policy . . . . . . . . . . . . . . . . . . . . . . . 5

The Former Immigration and Naturalization Service (INS) . . . . . . . . . 6

Consular Affairs (CA): Visa and Passport Issuance . . . . . . . . . . . . . . . 9

Customs Service and International Trade . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Animal and Plant Health Inspection Service (APHIS) . . . . . . . . . . . . . . . . 13

Coast Guard and Maritime Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Background Information on the Coast Guard . . . . . . . . . . . . . . . . . . . 15

Seaport Security Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Transportation Security: An Evolving Federal Activity . . . . . . . . . . . . . . . 17

Federal Building Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Federal Law Enforcement Training Center . . . . . . . . . . . . . . . . . . . . . . . . . 19

Office for Domestic Preparedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Expeditious Consolidation of Agencies and Functions . . . . . . . . . . . . 21

Integration and Strategic Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Border Security and Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Adequate Funding and Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Efficient Deployment of Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Coast Guard and Inter-Departmental Coordination . . . . . . . . . . . . . . . 23

Transportation Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Federal Building Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Federal Law Enforcement Training . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Terrorism Preparedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Department of Homeland Security:

Consolidation of Border and Transportation

Security Agencies

This report examines the consolidation of certain federal agencies charged with

border and transportation security within the newly established Department of

Homeland Security, which became operational March 1, 2003. It also includes

conceptual definitions for “border management” and “border security;” descriptions

of the principal border management missions; brief discussions of seaport and

transportation security, since both are integral to border security; and a brief

exploration of issues raised by transferring the Federal Protective Service, the Office

for Domestic Preparedness, and the Federal Law Enforcement Training Center to this

new directorate. The report concludes with an analysis of issues concerning the

consolidation of various border and transportation security agencies in the new

Department of Homeland Security. This report is intended as an analysis of border

and transportation security issues attached to the creation of the Department of

Homeland Security. While some of these issues may persist, this report will not be

updated.1

Most Recent Developments

The Senate confirmed the nomination of former Congressman and head of the

Drug Enforcement Administration, Asa Hutchinson, as Under Secretary for the

Border and Transportation Security Directorate, the Department of Homeland

Security, on January 23, 2003.

The Department of Homeland Security released a fact sheet on January 30,

2003, outlining the establishment of two bureaus under the Border and

Transportation Security Directorate by realigning several border management and

security functions.2

The Bureau of Customs and Border Protection is to be established

by unifying the Customs Service’s commercial operations and

inspection programs, the immigration inspection and Border Patrol

programs, and the agricultural quarantine and inspection program.

The Bureau of Immigration and Customs Enforcement is to be

established by consolidating the Customs and immigration

This report was originally coordinated by (name redacted).

For further information on this realignment of border management and security functions,

click on [http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0073.xml].

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investigation programs, the Customs air and marine drug interdiction

program, the immigration detention and removal program, and the

Federal Protective Service.

The former will be headed by a Customs Commissioner, the latter by an Assistant

Secretary.3 As a result, the Border and Transportation Security Directorate will

include these bureaus, along with the Transportation Security Administration, the

Office for Domestic Preparedness, and the Federal Law Enforcement Training

Center. A more detailed discussion of these realigned border functions and other

related matters is included in the body of this report.

Overview

Congress has passed the Homeland Security Act of 2002,4 establishing a cabinet

level Department of Homeland Security (DHS),5 and within that department, a

Directorate of Border and Transportation Security (DBTS).6 The Homeland Security

Act charges the DBTS with securing the borders; territorial waters; terminals;

waterways; and air, land and sea transportation systems of the United States; and

managing the Nation’s ports of entry. As in the past, the challenge for policymakers

is to provide a level of border and transportation security that is commensurate with

a multitude of threats, while facilitating legitimate travel and commerce, as well as

protecting civil liberties. An immediate challenge for the 108th Congress will be to

work with the Administration to get the new department, including DBTS,

operational at a time when threats to borders and transportation systems are real and

arguably imminent.

To better position federal agencies to prevent terrorists from entering, and

smuggling “instruments of terror” into, the United States, and from attacking U.S.

transportation systems, the Homeland Security Act transfers to the Directorate of

Border and Transportation Security the following agencies and programs: (1) the

U.S. Customs Service, (2) the enforcement programs of the former Immigration and

Naturalization Service (INS), (3) the border-related inspection programs of the

Animal and Plant Health Inspection Service, (4) the Transportation Security

Administration, (5) the Federal Protective Service, (6) the Federal Law Enforcement

Training Center, and (7) the Office for Domestic Preparedness. The Act transfers to

the new department, but not to the new directorate, the Coast Guard and the

citizenship/services programs of INS as a stand-alone agency and bureau,

respectively. Nonetheless, the activities of the Coast Guard and Bureau of

For further information on departmental management structure, see CRS Report RL31492,

Homeland Security: Management Positions for The New Department, by (name redacted).

P.L. 107-296; 116 STAT. 2135.

For further information on departmental-wide considerations and issues, see CRS Report

RL31493, Homeland Security: Department Organization and Management, by (name red

acted).

For further information on departmental structure, see CRS Report RS21366, Department

of Homeland Security: Hypothetical Organization Chart, by (name redacted).

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Citizenship and Immigration Services will need to be closely coordinated with the

new directorate.

The success of the new Department of Homeland Security and its Border and

Transportation Security Directorate will depend in large measure on the development

of a unified strategic focus for directorate operations; effective and expedited

coordination of transferred agencies and programs; leverage of new and existing

technologies to improve threat detection; development of new inspection and

compliance processes with an eye on security and facilitation of legitimate travel and

trade; adequate funding and staffing; efficient deployment of resources; and

successful implementation of recently enacted border, port, and transportation

security-related legislation.

Border Management and Transportation Security

In the past, there have been many proposals to reorganize border management

agencies prompted by concerns about illegal immigration and international drug

trafficking.7 The threat of terrorism, however, prompted the establishment of a

Department of Homeland Security (DHS) and its Directorate of Border and

Transportation Security (DBTS) that integrates border management agencies. Today,

policy makers confront the real possibility that the World Trade Center and Pentagon

attacks were not “singular” events, and that international terrorists have planned, will

attempt, and may successfully carry out, attacks of similar magnitude against the

United States in the future. At the same time, trade experts emphasize that shutting

down borders in the event of a terrorist attack on the United States would have

detrimental and possibly catastrophic effects on the national and world economies.8

Hence, the security and livelihood of the United States depends more than ever upon

how efficiently federal agencies charged with border management achieve their

respective missions.

Border Management and Security. Border management entails regulating

the flow of people and goods into the United States and, in some instances, from the

United States. Border security is derived from how well border management

agencies perform their missions. That entails not only effective law enforcement in

some cases, but also prompt, efficient, and courteous service to the traveling public.

Over the past half-century, border management evolved as a balancing act between

facilitating legitimate cross border commerce and travel, and deterring illegal

immigration and the smuggling of drugs and other contraband.

Even before the September 11 terrorist attacks, border management was

emerging as a public policy area of growing concern for Congress. The Canadian

and North American free trade agreements created a perception, among some

observers, that some international borders were anachronistic, that they belonged to

an earlier era of nationalism, and that their usefulness was rapidly diminishing.

For further information on past attempt at border reorganizations, see CRS Report 97-974,

Reorganization Proposals for U.S. Border Management Agencies, by (name redacted).

Michael O’Hanlon, et al., Protecting the American Homeland, The Brookings Institution,

Washington, 2002, p. 25.

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While these agreements fostered international trade, they did not cause the borders

to disappear nor was that an intention. Instead, the borders became in some ways

more prominent as increased trade and travel outpaced the institutions and

infrastructures set up to accommodate and regulate those activities. From 1985 to

2000, for example, trade between the United States and Canada increased from

$116.3 to $409.8 billion, yet the number of Customs inspectors on the northern

border reportedly decreased by about 25%.9

Despite significant increases in resources (mostly deployed to the southern

border), particularly for INS’s Border Patrol, an unauthorized immigrant population

of an estimated 7 to 9 million people10 and the continuing availability of illegal drugs

of foreign origin11 were and continue to be clear indicators that current federal border

management efforts have had mixed results to date. Critics of the status quo pointed

to fragmented authorities, overlapping jurisdictions, duplicated efforts, and

interagency rivalries.

Consolidating Border and Transportation Security Missions. The

Homeland Security Act of 2002 (P.L. 107-296) in effect makes counterterrorism the

central mission for agencies tasked with border and transportation security. Prior to

the Homeland Security Act, no single government entity was charged with border

management and transportation security. Rather, a handful of agencies was charged

with what might be considered core border management missions. Those agencies

included: (1) the U.S. Customs Service in the Department of the Treasury, (2) the

former Immigration and Naturalization Service (INS) in the Department of Justice,

and (3) the U.S. Coast Guard in the Department of Transportation. Many other

agencies, like the Bureau of Consular Affairs in the Department of State and the

Animal and Plant Health Inspection Service (APHIS) in the Department of

Agriculture, play integral roles in border management as well. Reportedly, at least

40 federal agencies are involved in some aspect of border management, since

Customs and other border management agencies enforce over 400 laws on behalf of

those agencies.12

Examination of the activities of these agencies indicates that federal border

management missions can be broadly classified into five overarching areas: (1)

immigration and nationality, (2) international trade, (3) environmental and health

quarantine, (4) port security, and (5) border and coastal patrol. As a sixth category,

Stephen E. Flynn, America the Vulnerable, Foreign Affairs, Jan./Feb. 2002, p. 66.

Steven Camarota, Census Bureau: Eight Million Illegal Aliens in 2000 (Finding Raises

Concern Over Border Control in light of Terrorist Threat), Center for Immigration Studies,

Washington, Oct. 24, 2001. [http://www.cis.org/articles/2001/censusrelease1001.html].

According to Federal-wide Drug Seizure System, federal authorities seized between 100

to 130 tons of cocaine per year for the last 5 years. According to DEA estimates, federal

authorities seized approximately 20% to 25% of the cocaine in transit to the United States,

either at the border or on the high seas.

Leslie A. Glick, Guide to Customs and Trade Laws After the Customs Modernization Act,

2nd Edition, Boston, 1997, p. 17.

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transportation security is evolving as a federal mission that overlaps, and possibly

dovetails, with border management missions as well.

The creation of the new Department and its Directorate of Border and

Transportation Security has raised questions among some analysts as to whether

addressing border security from the angle of counter-terrorism alone, without

considering other federal objectives, like stemming drug trafficking or facilitating

legitimate cross border commerce, is practical or reasonable. Clearly, a key

challenge for policymakers charged with establishing the new department and its

Directorate of Border and Transportation Security will be to develop an integrated

strategic border management and transportation security focus that effectively weaves

counterterrorism into other federal border management- and transportation securityrelated goals and activities.13

Building Security, Law Enforcement Training, and Terrorism

Preparedness. The Homeland Security Act of 2002 also transfers several other

federal entities to the Directorate of Border and Transportation Security. They

include (1) the Federal Protective Service (FPS), formerly located in the General

Services Administration; (2) the Federal Law Enforcement Training Center (FLETC),

formerly located in the Department of the Treasury; and (3) the Office of Domestic

Preparedness (ODP), formerly located in the Office of Justice Programs at the

Department of Justice. The inclusion of FPS, FLETC, and ODP will increase the

new directorate’s responsibilities in the areas of federal building security, training

federal law enforcement officers, and providing state and local first responders with

training and assistance (with a special emphasis on terrorism preparedness). These

activities, however, are not viewed traditionally as falling under either border or

transportation security missions. On the other hand, locating them in the Directorate

of Border and Transportation Security gives that directorate a wider scope of

responsibility that may permit new approaches in the area of combating terrorism.

INS, Consular Affairs, and Immigration Policy14

U.S. immigration and nationality policy has historically balanced generous

principles with restrictive priorities. The generous principles emphasize the

reunification of families; the admission of immigrants with needed job skills; the

protection of refugees and asylees; the promotion of opportunities for cultural

exchange; the facilitation of trade, commerce, and diplomacy; and the diversity of

admissions by the country of origin. Another principle of immigration and

nationality policy is to provide immigrants an opportunity to integrate fully into

society. Along these lines, immigrants (legal permanent residents) usually have the

opportunity to become citizens through a process known as naturalization. The

restrictive priorities of U.S. immigration law focus on protecting public health and

welfare, national security, public safety, and labor markets.

U.S. Commission on National Security/21st Century. Roadmap for National Security:

Imperative for Change. (Washington, February 15, 2001). p. 156. Available at

[http://www.nssg.gov/].

This section was prepared by Ruth Wasem, (name redacted), Susan Epstein, and William

Krouse.

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These principles and priorities are embodied in the Immigration and Nationality

Act (INA), first codified in 1952. It is noteworthy that there is a tension between the

generous principles and restrictive priorities of immigration law. This tension was

difficult to reconcile in the day-to-day operations of the two lead agencies charged

with managing the migration of non-citizens across U.S. borders–Justice’s

Immigration and Naturalization Service and the State Department’s Bureau of

Consular Affairs. This was in evidence as Congress considered proposals to

establish a Department of Homeland Security. While the Homeland Security Act

does not alter the fundamental tenets of U.S. immigration and nationality policy, the

Act abolishes INS, creating separate bureaus for immigration enforcement and

services. It vests the Secretary of Homeland Security with responsibility for issuing

regulations and policies related to visa issuance.15

The Former Immigration and Naturalization Service (INS). The

Homeland Security Act of 2002 (P.L. 107-296) dismantles the INS and transfers

immigration enforcement and service functions to DHS as two separate and distinct

bureaus. Proposals to split INS had been considered by Congress prior to the

homeland security debate.16 For FY2002, Congress provided INS with $6.2 billion,

supporting 36,117 funded permanent positions.17 According to DOJ, the FY2002

budget included $4.0 billion (26,708 positions) for enforcement programs, over $1.4

billion (5,707 positions) for immigration services, and $730 million (3,702 positions)

for administration and support (shared services).18

The Homeland Security Act establishes a Bureau of Border Security (to be

headed by an Assistant Secretary) in the Directorate of Border and Transportation

Security; and it establishes a Bureau of Citizenship and Immigration Services (to be

headed by a Director) under the DHS Deputy Secretary’s office. The Act explicitly

prohibits the joining of these two bureaus into a single agency or the consolidation

For further analysis of the potential transfer of immigration functions and activities to a

new Department of Homeland Security, see CRS Report RL31560, Homeland Security

Proposals: Issues Regarding Transfer of Immigration Agencies and Functions, by Lisa M.

Seghetti and (name redacted); and CRS Report RL31512, Visa Issuances: Policy, Issues,

and Legislation, by (name redacted)..

Preceding the homeland security debate, the Administration supported a restructuring plan

to split the agency’s service and enforcement programs within INS. On April 25, 2002, the

House passed a measure (H.R. 3231) that would have dismantled INS. On May 2, a similar,

but competing, measure (S. 2444) was introduced in the Senate. Both bills would have

established separate immigration services and enforcement bureaus. The Senate bill,

however, would have created an immigration director with overall statutory authority for

immigration policy. The House bill would have established an Associate Attorney General

for Immigration, but the statutory authority for immigration services and enforcement would

have devolved to the respective bureau directors.

It should be noted that any FY2002 numbers quoted throughout the text of this paper are

not actual final amounts reported for FY2002. These numbers represent amounts pending

at the time of the creation of the Department of Homeland Security, and are used for

illustration purposes only.

U.S. Department of Justice, 2003 Budget Summary, (Washington, winter 2002), p. 105.

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of the functions or organizational units of these two bureaus.19 The Act also

establishes a Director of Shared Services under the Deputy Secretary’s Office.

Coordination and information sharing between these two separate bureaus will be

critical to the success of the Directorate’s management of border and transportation

security and the Department’s management of immigration and nationality policy.

Immigration Enforcement. Immigration enforcement functions – previously

carried out by INS – include the following: (1) patrol of the border between ports of

entry; (2) inspection of travelers seeking entry into the United States at ports of entry;

(3) investigation of violations of immigration law both at the border and within the

interior of the United States; (4) detention and removal of non-citizens found to be

in violation of immigration law; and (5) the collection of intelligence concerning

immigration-related illegal activities. The Homeland Security Act transfers all

former INS enforcement functions to the Bureau of Border Security, in the DHS

Directorate for Border and Transportation Security.

Between ports of entry, the U.S. Border Patrol, formerly a division of INS,

enforces U.S. immigration law and other federal laws at the border. Border Patrol

agents often apprehend drug smugglers and others engaged in criminal activities, but

the principal focus of the Border Patrol has been to stem illegal immigration,20 by

compelling border crossers to present themselves for inspection at a designated port

of entry. At ports of entry, immigration inspectors – formerly attached to INS –

examine and verify the travel documents of international travelers to determine their

eligibility to enter the United States.21 Unlike other immigration enforcement

functions, the inspections function includes service-related activities as well. For

example, immigration inspectors are often the first line of contact with the traveling

public, including non-citizens seeking to enter the United States for the first time.

On the other hand, immigration inspectors screen foreign travelers by checking

border lookout systems to determine whether they are listed as known terrorists or

supporters of terrorist organizations.22

Special agents investigate immigration violations at the border, since neither the

Border Patrol nor immigration inspections has a criminal investigations capability,

and in the interior of the United States, as well. Such investigations include

identifying criminal aliens for removal, immigration-related document and benefit

fraud, alien smuggling, and employer sanctions. Federal law prohibits employers

from knowingly hiring aliens who are unauthorized to work in the United States.

Section 471(b) of P.L. 107-296.

Over 90% of Border Patrol agents are deployed on the Southwest border.

According to the INS Statistics Office, INS inspectors screened about 511 million persons

for entry (approximately 36% citizens and 64% non-citizens) in FY2001. The non-citizens

they found inadmissible number in the hundreds of thousands, but represented less than

0.2% of all inspections annually.

In the INS budget, inspections was considered an enforcement program, but

organizationally inspections was considered an examinations or service program. The

Homeland Security Act transfers the immigration inspections program to the Bureau of

Border Security, in the DHS Directorate of Border and Transportation Security.

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Immigration special agents, inspectors, and Border Patrol agents participate in

interagency task forces, like the Joint Terrorism Task Forces, since only an

immigration officer can determine immigration and nationality status, as opposed to

a U.S. Marshal or FBI agent.23 In addition, a small number of immigration special

agents are stationed abroad.

Immigration officers also oversee the detention and removal of non-citizens –

many of whom cannot be released under the law until removed from the United

States. In recent years, INS had come under intense criticism for not expeditiously

deporting criminal aliens. Despite increased funding, INS officials had maintained

that the agency did not possess sufficient detention capacity to comply with the law.

Furthermore, immigration officers collect intelligence in regard to illegal

immigration-related activities, such as alien smuggling or large-scale document and

benefit fraud. Such intelligence is often useful to other federal law enforcement

agencies, as well.

It is notable that immigration enforcement and service functions are linked. For

example, immigration inspectors routinely query application processing databases

maintained by former INS service programs in order to determine the immigration

status of applicants for admission at international ports of entry. Conversely,

immigration adjudicators routinely query immigration enforcement databases to

determine whether non-citizen applicants for certain immigration benefits have been

or are in violation of immigration law. In addition, immigration adjudicators are also

required to conduct criminal background and lookout system checks on certain

applicants by checking with the FBI and the Department of State. Along these lines,

moreover, Congress has recently mandated that all immigration databases, service

and enforcement systems, be made compatible (interoperable).24

Immigration Services. The Homeland Security Act transfers citizenship and

immigration services – previously administered by INS – to a Bureau for Citizenship

and Immigration Services, under the DHS Office of Deputy Secretary. The

transferred functions consist of two major activities: (1) the adjudication of

immigration- and naturalization-related benefits; and (2) the consideration of refugee

and asylum claims. As part of the former INS adjudications and nationality program,

immigration adjudication officers and clerks process family-sponsored and

employment-based immigrant petitions to determine the eligibility of relatives of

U.S. citizens and immigrants (legal permanent residents), and employees of U.S.

businesses, to be permanently admitted to the United States. Another significant

workload for immigration adjudications officers is that associated with applications

for adjustment of status to permanent residency for non-citizens who are already in

the United States, but who are otherwise eligible for immigrant status. Immigration

officers also process temporary (nonimmigrant) employment and fiancee visa

A term of art, “immigration officers” include special agents, immigration agents,

immigration inspectors, Border Patrol agents, deportation officers, detention enforcement

officers, Asylum Corps officers, and adjudications officers.

Section 202(a)(1) of the Enhanced Border Security and Visa Entry Reform Act of 2002

(P.L. 107-173; 116 Stat. 543).

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applications, nonimmigrant visa adjustments and extensions of stay, as well as many

other immigration- and naturalization-related applications.25

The former INS Office of International Affairs, among other things, oversaw the

consideration of refugee claims abroad, and asylum claims domestically. Essentially,

non-citizens are granted refugee and asylum status on the same basis. Under current

law, refugees and asylees are persons who are outside of their home country (or the

last country in which they habitually resided), and are unable to return to that country

because of a well founded fear of persecution on the basis of race, religion,

nationality, membership in a particular social group, or political opinion. Asylum

applicants apply in the United States; refugee applicants apply from abroad. Located

in eight offices around the country, the Asylum Corps – previously part of INS –

accounts for a small, but high profile portion of the immigration services workload.

In addition, immigration officers (often Asylum Corps officers) – previously attached

to INS – are assigned to many foreign locations to consider refugee claims.

Consular Affairs (CA): Visa and Passport Issuance. The Department

of State’s Bureau of Consular Affairs (CA) manages three functions, two of which

– visa and passport issuance – are related to border management and security. Of

these two functions, however, overseas visa issuance policy was the principal focus

of border security proposals acted upon by Congress. The third function, unrelated

to border security, includes services to U.S. citizens abroad.

The Homeland Security Act vests the Secretary of Homeland Security with

responsibility for issuing regulations related to the granting or refusal of visas, and

for providing homeland security training to consular officers, but limits that authority

in that the Secretary may not alter or reverse the decision of an individual consular

officer. To promote homeland security and provide training to consular staff, the Act

authorizes the Secretary to station DHS staff at consular posts abroad. By

comparison, the Administration’s proposal would have given the Secretary of

Homeland Security exclusive policy authority “through the Secretary of State” over

the granting or refusal of visas.

Under Section 104 of the INA (unamended by P.L. 107-296), the Secretary of

State continues to hold the primary responsibility for the administration and

enforcement of immigration law as it relates to the duties and functions of diplomatic

and consular officers.26 CA’s Visa Office carries out the Secretary of State’s

immigration responsibilities, processing immigrant and nonimmigrant visa

applications (as opposed to visa petitions, which are processed by INS). Section

211(a) of Title 22 of the United States Code charges the Secretary of State with

In FY2001, INS received about 7.8 million applications and completed a record 7 million,

but INS ended the year with nearly 4.9 million applications pending, a nearly 24% increase

over the previous year.

Among other things, Section 221 of the INA (8 U.S.C., § 1201) sets out that, subject to

limitations in the Act and relevant regulations, consular officers may issue immigrant and

nonimmigrant visas.

CRS-10

responsibilities related to issuing passports to U.S. citizens.27 CA’s Passport Office

oversees the issuance of U.S. passports. While CA provides for headquarters

management of all consular activities, these activities are conducted by the staff of

many different bureaus (regional and administrative) within the Department of State.

For FY2002, the department-wide budget for consular activities was about $574

million,28 supporting 3,756 positions.29

CA also maintains the Consolidated Lookout and Support System (CLASS), a

system that is used to screen persons known to be ineligible for visas. CLASS

lookout records, in turn, are downloaded into the Interagency Border Inspection

System (IBIS), a system that is maintained by Customs and used by both Customs

and INS inspectors to screen foreign travelers seeking to enter the United States.30

CLASS was developed under State’s Border Security Program, which is fully funded

through machine readable visa (MRV) application fees that are paid by persons

seeking nonimmigrant visas. For FY2002, under the Border Security Program, it was

estimated the MRV fees would generate an estimated $465 million,31 but this

estimate did not factor in the decline in travel due to the September 11 terrorist

attacks. In addition to funding CLASS, significant amounts of MRV fees are

allocated to passport issuance and systems, and to the Diplomatic Security Service

to conduct visa and passport fraud investigations.32

In regard to processing immigrant visas, CA works in tandem with immigration

service programs – formerly part of INS – in a two-step process. The immigration

service programs process the family-sponsored and employment-based immigrant

visa petitions and, if favorably adjudicated, CA contacts the prospective immigrants.

Then, CA processes their visa applications and, if favorably adjudicated, issues the

non-citizen beneficiaries immigrant visas. The burden of proof is on applicants to

establish eligibility. For denials of visa applications (immigrant or nonimmigrant),

there is only limited review, and no process for administrative or judicial appeal.

Following inspection at a U.S. port of entry, the immigrant visa holder becomes a

legal permanent resident. For the majority of nonimmigrant (temporary) visas, most

of which do not require a U.S. petitioner, CA handles the entire application process.

With certain exceptions, Section 215 of the INA prohibits any U.S. citizen from departing

from or entering the United States without a valid passport.

U.S. Department of State, Congressional Presentation Document, FY2003, (Washington,

winter 2002), p. 40. (Hereafter cited as Congressional Presentation Document, FY2003.)

Ibid., p. 41.

For further information, see CRS Report RL31019, Terrorism: Automated Lookout

Systems and Border Security Options and Issues, by (name redacted) and (name redacted).

Congressional Presentation Document, FY2003, p. 516.

Nearly all of this amount, for the border security program, $476 million, is allocated for

consular activities; therefore, it overlaps with the $574 million for consular activities.

CRS-11

In general, foreign nationals who wish to come to the United States must have

a visa to be admitted.33 A notable exception would be the visa waiver program under

which foreign nationals from certain countries seeking to enter the United States for

a temporary visit for business or pleasure may enter without a visa.34 In FY2001,

Consular Affairs issued over 406,000 immigrant visas,35 and nearly 7.6 million

nonimmigrant visas.36 Often described as a double check system, both State’s

consular officers at overseas posts (when aliens apply for a visa), and immigration

inspectors at international ports of entry (when aliens apply for admission) are

required to confirm that the alien is admissible and not subject to exclusion as

enumerated in the INA. Beside criminal and public health-related grounds, such

reasons for exclusion also include being a suspected terrorist or supporter of a

terrorist organization.

Customs Service and International Trade37

The Homeland Security Act of 2002 (P.L. 107-296) transfers the U.S. Customs

Service in its entirety to the DHS Directorate of Border and Transportation Security.

The Customs Service, formerly an agency of the Department of the Treasury, screens

goods and merchandise being imported into and, to a lesser extent, exported from,

the United States. Customs is the lead agency charged with administering the Tariff

Act of 1930, as amended. At international ports of entry, Customs officers represent

about 40 other federal agencies, administering and enforcing over 400 statutes and

regulations related to international trade and commerce, drug and crime control,

immigration, public health and safety, environmental protection, child welfare, and

national security.38

Customs processes goods being imported into the United States, including

collection of duties and tariffs. The agency plays a major role in federal efforts to

interdict illegal drugs and other contraband being smuggled into the United States.

Customs administers U.S. export law, in part, by interdicting the export of unreported

currency from narcotics trafficking and other illicit activities, preventing international

terrorist groups and rogue nations from obtaining sensitive and controlled

commodities, and interdicting stolen vehicles and other stolen property. Like other

Authorities to except or to waive visa requirements are specified in law, such as the broad

parole authority of the Attorney General under §212(d)(5) of INA and the specific authority

of the Visa Waiver Program in §217 of INA.

See CRS Report RS21205, Immigration: Visa Waiver Program, by (name redacted).

In FY2001, over 1 million people gained immigrant status (legal permanent residency).

Well over half were already in the United States and, therefore, processed by INS and their

status adjusted to legal permanent residency in the United States under section 245 of the

INA. As a result, they were not issued immigrant visas by the Department of State.

In FY2001, according to INS, about 325 million nonimmigrants were admitted to the

United States (including multiple entries by the same visitors). Of those nonimmigrants, an

estimated 17 million were admitted under the visa waiver program.

This section was prepared by William Krouse.

Provided they have the requisite training, certain Immigration Inspectors and Border

Patrol agents are authorized to act as Customs officers at the border.

CRS-12

federal law enforcement agencies, Customs has also engaged in efforts to identify and

investigate trans-border crimes committed through the Internet. Those various

responsibilities comprise Customs’ dual mission of enforcing the laws of the United

States, while fostering legitimate international commerce and travel. All of Customs’

activities are related to border management and security.

In FY2001, Customs collected over $22 billion in trade-related duties, taxes, and

fees.39 Total imports for that year reached an estimated value of $1.2 trillion.40 A

large percentage of these imports arrived in more than 16 million cargo containers,

and about 5.7 million of these containers arrived by ship (most of the rest come by

rail or commercial trucks).41 In FY2001, Customs processed more than 214,000

ships.42 In addition, Customs processed over 472 million pedestrians and passengers

(nearly 66 million arrived by aircraft, 11 million by ship, 307 million by automobile,

53 million pedestrians, and 35 million by some other means of conveyance).43 For

FY2002, Congress appropriated $3.1 billion for Customs,44 supporting 18,595 full

time equivalent staff positions. This was a 35% increase over the agency’s FY2001

appropriation, most of which was provided to improve border security.45

A number of Customs-related provisions included in the Homeland Security Act

address concerns among the “importing community”46 that Customs’ transfer to DHS

– a department exclusively focused on counterterrorism – may result in less emphasis

U.S. Customs Service, U.S. Customs Service: America’s Frontline, FY2001 Annual

Report. Washington, July 2002, p. 70.

Ibid., p. 16.

U.S. Customs Service, U.S. Customs Container Security Initiative to Safeguard U.S.,

Global Economy, Fact Sheet, Washington, Feb. 2002, p. 1. Available online from the

[http://www.cbp.gov/xp/cgov/newsroom/press_releases/22002/02222002.xml]

Ibid., p. 1.

Customs FY2001 Annual Report, p. 16.

This amount includes the FY2002 emergency supplemental appropriation of $393 million

allocated in the Department of Defense Appropriations Act (P.L. 107-117). It also includes

monies appropriated into four accounts: 1) $2.501 billion in the salaries and expenses

account, 2) $185 million in the air and marine interdiction program account, 3) $428 million

in the automation modernization account, and 4) $3 million in the harbor maintenance fee

account.

From FY1992 to FY2001, Congress increased direct appropriations for the U.S. Customs

Service from $1.5 to $2.3 billion, a 59% increase. To cover the costs of commercial

operations and as directed by Congress, Customs offsets its direct appropriation by the

balance of merchandise processing fees in the Customs User Fee Account ($930 million in

FY2001). In addition to appropriated funding, the Customs Service collects Consolidated

Omnibus Budget Reconciliation Act (COBRA) fee receipts that are available to the agency

for expenditure ($305 million in FY2001).

Possibly not all inclusive, the concept of “importing community” would include importers,

exporters, customs brokers, shippers, freight forwarders, carriers, international trade

attorneys and consultants, and foreign trade zones.

CRS-13

on facilitating legitimate international commerce and travel.47 For example, the Act

gives the Secretary of the Treasury continued authority over “customs revenue

functions.”48 It also includes several other provisions, which were recommended by

the House Committee on Ways and Means, that:

establish the Customs Service as a stand-alone agency vested with

largely the same revenue-related responsibilities as the agency

currently holds;

! require that the Customs Service be headed by a Commissioner (as

is the case today), who would be appointed with advice and consent

of the Senate;

! leave the statutory revenue collecting authority with the Secretary of

the Treasury, but allow the Secretary to delegate revenue collecting

responsibilities to the proposed DHS;

! prohibit the use of Customs user fees for non-Customs-related

activities;

! require the Administration to submit a separate budget on Customs’

revenue functions within the proposed DHS;

! define “customs revenue function” and related activities;

! require the GAO to report on all trade functions performed by the

executive branch;

! direct the DHS Secretary to maintain adequate staffing to assure that

the agency’s revenue services are maintained;

! establish reporting requirements to ensure that the level of revenue

services provided by Customs prior to enactment are maintained;

and

! dedicate a portion of merchandise processing fees for the continued

development, establishment, and implementation of an Automated

Commercial Environment (a computer system to track imports).

Animal and Plant Health Inspection Service (APHIS)49

While the INS and Customs Service are the principal border management and

inspection agencies, they are assisted in this endeavor by other federal inspection

agencies that are charged with protecting the environment, food supply, and public

Ann Saccomano, One Agency, Many Questions: Department of Homeland Security Will

Have Impact on Trade System, Journal Commerce, Nov. 25-Dec. 1, 2002, p. 13. R. G.

Edmonson, Trade Facilitation in Peril? Some Wonder if Customs Trade Role Will Be

Diminished or Lost within Proposed Department of Homeland Security, Journal of

Commerce, June 17, 2002, p. 39.

Some Members of Congress explored the possibility of splitting Customs enforcement and

trade compliance activities (loosely equivalent to those activities that would fall under

“customs revenue functions”) along the same lines as splitting INS enforcement and services

activities. Others observed, however, that Customs’ enforcement activities are derived

largely from its regulatory activities, and that all these activities are part of managing

international trade at the borders.

This section was prepared by Jean Rawson and William Krouse.

CRS-14

health.50 The Department of Agriculture’s Animal and Plant Health Inspection

Service (APHIS), following INS and Customs, has the largest presence at the border.

As a lead inspections agency, nearly 60% of APHIS’s staff and 30% of its $1.2

billion FY2001 budget were dedicated to border inspection-related duties. As such,

APHIS has been included in recent proposals to consolidate border management

agencies.

The Homeland Security Act of 2002 (P.L. 107-296) transfers APHIS import and

entry inspection functions to the DHS Directorate for Border and Transportation

Security, but explicitly exempts the agency’s plant and animal quarantine operations,

reflecting recommendations made by the House Committee on Agriculture. The Act

requires the DHS Secretary to follow APHIS regulations, policies, and procedures

concerning border inspections, and the USDA Secretary retains the authority to make

changes in the same, with the requirement to coordinate with the DHS Secretary. By

comparison, the Administration’s original plan would have transferred APHIS in its

entirety to the proposed DHS.

Agriculture’s APHIS conducts inspection and quarantine activities at

international ports of entry to minimize the risk that agricultural pests and exotic

animal and plant diseases will be introduced into the United States. APHIS is also

charged with several non-border management responsibilities that include nationwide

monitoring of animal and plant health; pest and disease management; animal care;

and controlling and eradicating pests and diseases that are harmful to agriculture,

wildlife, or public safety. These functions, for the most part, will remain in the

Department of Agriculture.

The Homeland Security Act gives the DHS Secretary the authority to issue

directives and guidelines to ensure the effective use of the transferred personnel,

pursuant to consultation with USDA. It effectively transfers 3,200 APHIS employees

to the new department, and requires USDA to transfer – from the fees it collects from

importers for inspection services – sufficient funds to cover the costs incurred by

DHS in carrying out agricultural inspection activities at borders and ports of entry.

In addition, the Act transfers the Plum Island Foreign Animal Disease Diagnostics

Laboratory to the DHS Directorate of Science and Technology. This lab was

formerly operated jointly by APHIS and USDA’s in-house research agency, the

Agricultural Research Service (ARS). It also directs the USDA and DHS Secretaries

to create an agreement of understanding so that ARS personnel would continue to be

able to use the facility.

Other agencies bring their expertise to bear at the border, as well, supporting the federal

inspection services in carrying out their responsibilities related to the environmental and

public health quarantine function. They include the Environmental Protection Agency; the

Fish and Wildlife Service in the Department of the Interior; the Food Safety Inspection

Service in the Department of Agriculture; and the Food and Drug Administration, the Public

Health Service’s Commissioned Officer Corps, and the Centers for Disease Control and

Prevention in the Department of Health and Human Services.

CRS-15

Coast Guard and Maritime Security51

In recent years, many analysts have identified U.S. vessels, ports, shoreside

facilities, and infrastructure as vulnerable to terrorist attacks. To address these

vulnerabilities in part, the Homeland Security Act of 2002 (P.L. 107-296) transfers

the U.S. Coast Guard to the DHS. In addition, Congress passed the Maritime

Transportation Security Act of 2002 (P.L. 107-295), an Act that includes many

border security-related provisions as well.

Background Information on the Coast Guard. The Homeland Security

Act of 2002 transfers all Coast Guard authorities, functions, personnel, and assets to

the DHS. The Act also requires the Commandant of the Coast Guard to report

directly to the Secretary of Homeland Security. Hence, the Coast Guard is

transferred to DHS as a stand-alone agency, outside of the Directorate of Border and

Transportation Security. Nonetheless, the activities of the Coast Guard will need to

be closely coordinated with the new Directorate, particularly in the area of seaport

security.

Formerly located in the Department of Transportation, the Coast Guard is one

of five military services. The Coast Guard contributes to border security in the areas

of maritime intervention and seaports and coastal waterways security. Charged with

federal law enforcement in both U.S. territorial waters and on the high seas, border

security-related missions include multi-agency maritime drug interdiction; illegal

migrant interdiction; and regulating foreign fishing vessel transits into the 200-mile

U.S. Exclusive Economic Zone (EEZ). In addition, the Coast Guard is responsible

for the search and rescue of those who find themselves in distress in all waters, and

icebreaking operations in areas like the Great Lakes to maintain year-round access

to those waterways and the polar regions in support of scientific and national security

operations. The Coast Guard, with its ports and waterways security mandate, is the

federal agency that coordinates the inspection and security activities of other federal

agencies and local port authorities.52

There has been continuing concern over the adequacy of Coast Guard operating

resources and the condition of some of its vessels and equipment. The

Administration and Congress have significantly increased these resources. For

FY2002, Congress appropriated $5.7 billion for the Coast Guard (including a $209

million counterterrorism supplemental). This amount funds about 37,000 active-duty

personnel, about 6,000 civilian employees, and about 8,000 reserve uniformed

personnel. Later in the year, Congress appropriated for the Coast Guard an additional

This section was prepared by Martin Lee and Ronald O’Rourke (Coast Guard), and (nam

e redacted) (seaport security).

For further information, see CRS Report RS20924, Homeland Security: Coast Guard

Legislation in the 107th Congress, by Martin Lee, and CRS Report RS21125, Homeland

Security: Coast Guard Operations-Background and Issues for Congress, by Ronald ORourke.

CRS-16

$255 million in a supplemental spending measure53 for further recovery and response

to the September 11 terrorist attacks, bringing total FY2002 Coast Guard funding to

over $6.0 billion.54

As with other agencies, some Members of Congress voiced concern that, if the

Coast Guard were transferred to the proposed DHS, certain non-security functions

such as boating safety, search and rescue, and fishing regulation could be deemphasized.55 To address these concerns, the Act defines “non-homeland security”

and “homeland security” Coast Guard missions. The Act, moreover, requires these

missions remain intact after the agency’s transfer, and prohibits substantially or

significantly reducing those missions or the Agency’s capabilities to perform them.

It further requires the DHS Inspector General to assess annually how all missions of

the Coast Guard are being performed. And the Act requires that a study be conducted

to assess the feasibility of accelerating the Integrated Deepwater System program

from the planned 20-year period to a 10-year period.56

Seaport Security Legislation. While the transfer of the Coast Guard to

DHS may address some aspects of security at U.S. seaports, on November 14, 2002

the Congress passed a separate measure, the Maritime Transportation Security Act

of 2002 (P.L. 107-295) addressing this issue in further detail. Even before the

September 11 terrorist attacks, an interagency commission issued a report that found,

with few exceptions, the level of security at seaports was poor to fair.57 Today, there

is heightened concern that a cargo container or ship’s hull could be used to transport

a weapon of mass destruction to the United States that might be detonated in a major

seaport.58 The Act creates a U.S. maritime security system and requires federal

agencies, ports, and vessel owners to take numerous steps to upgrade security. The

Act requires the Coast Guard to develop national and regional area maritime

transportation security plans. It requires further that ports, waterfront terminals, and

certain types of vessels to develop and submit to the Coast Guard for approval

security and incident response plans.

The Act authorizes the Customs Service to require that cargo manifest

information for inbound or outbound shipments be provided to the agency

electronically prior to the arrival or departure of the cargo. This information may be

P.L. 107-206; 116 STAT. 820.

From FY1992 to FY2001, the Coast Guard budget increased from about $3.6 to $5.1

billion

The House Committee on Transportation and Infrastructure recommended that the Coast

Guard remain in DOT, a new Coast Guard Vice Commandant for Homeland Security be

created, and all core missions be performed at adequate levels, but this proposal failed to

pass.

See CRS Report RS21019, Coast Guard Deepwater Program: Background and Issues for

Congress, by Ronald O’Rourke.

Report of The Interagency Commission on Crime and Security in U.S. Seaports.

Washington, fall 2000, p. 169.

For further information, see CRS Report RS21293, Terrorist Nuclear Attacks on Seaports:

Threat and Response, by Jon Medalia.

CRS-17

shared with other appropriate federal agencies. The DHS Secretary is required to

assess the security measures of foreign ports engaged in trade with the United States.

If a foreign port does not maintain effective antiterrorism measures, the United States

may prescribe conditions for vessels arriving in U.S. waters from those ports or deny

their entry. The Act also tasks the Department of Transportation with determining

the level of funding needed to finance a grant program for security upgrades, and

charges the Maritime Administration with allocating such grants in a “fair and

equitable” manner to port authorities, terminal operators, and state and local

governments. It also authorizes $90 million in grants for research and development

to improve cargo inspection, nuclear materials detection, and the physical security

of marine shipping containers.

Transportation Security: An Evolving Federal Activity59

The Homeland Security Act of 2002 (P.L. 107-296) transfers the Transportation

Security Administration (TSA) to the DHS Directorate of Border and Transportation

Security, and requires that TSA be maintained as a distinct entity within the DHS for

2 years after enactment. TSA, founded by the Aviation and Transportation Security

Act (ATSA),60 is responsible for the security of all modes of transportation. Because

aircraft were used as weapons in the September 11, 2001, attacks and ATSA’s tight

aviation security deadlines for programs initiated in the wake of the attacks, TSA’s

early efforts have focused on aviation security.61 Notwithstanding the need to secure

other modes of transportation, the rising TSA budget and estimates of the agency’s

eventual size have sparked controversy.

According to TSA, the agency’s total appropriation for FY2002 was $5.8

billion. 62 Early estimates of TSA’s personnel needs were in the range of 28,000 to

33,000 employees. More recent estimates have been in the range of 60,000 to 70,000

employees. The agency asserts that this increase in funding and personnel is largely

an outgrowth of ATSA’s tight implementation guidelines and especially the

This section was prepared by Robert Kirk.

P.L. 107-71; 115 STAT. 597.

On Nov. 18, 2002, Secretary of Transportation, Norman Mineta, announced that TSA had

met ATSA’s 1 year after enactment deadline for deploying federal screeners at all screening

stations at all 429 commercial service airports. This was one of the two exceptionally

demanding ATSA deadlines that many observers predicted that ATSA would fail to meet.

The second exceptionally demanding deadline is the upcoming Dec. 31, 2002 deadline for

100% Explosive Detection Systems (EDS) screening of checked baggage. Currently, TSA’s

goal is to have EDS screening of all baggage at more than 400 airports by the deadline. A

combination of electronic screening, in some cases augmented by other congressionally

authorized techniques, are to be used at these airports, until 100% EDS baggage screening

can be in place and operating.

Of this amount, $5.2 billion was for aviation security, including: $2.3 billion for

passenger screening; $1.9 billion for baggage screening; and $944 million for security

direction and enforcement. In addition, for FY2002, the TSA budget included: $261 million

for maritime and land security; $1.5 million for intelligence; $164 million for research and

development; and $244 million for headquarters staff, start-up costs, administrative

contracts, and information technology projects.

CRS-18

requirement that all checked baggage be screened by explosive detection systems

(EDS) by December 31, 2002.63 The Homeland Security Act provides for a process

whereby airports may request and the Under Secretary for Transportation Security

may extend by one year the ATSA December 31, 2002, deadline that all checked

baggage be screened by explosive detection systems (EDS). In addition, the bill

prohibits the new department from receiving any funding from the various

transportation trust funds.64

Under ATSA, the design of TSA was influenced significantly by the decision

to put the proposed agency in the Department of Transportation. While TSA’s

security mandate covers both domestic and international transportation, its

international transportation security role overlaps with border security. For example,

when TSA baggage screeners prevent someone with ill intent from boarding an

international flight, this could be viewed as a border security activity. Also, when

TSA sky marshals provide security on international flights departing from airports

abroad, this could also be viewed as a border security activity. Nonetheless, how

TSA’s security functions will be merged or coordinated with border management

agencies, like the new Bureau of Border Security (formerly INS enforcement

programs), Customs, and the Coast Guard, has yet to be specified.

Federal Building Security65

The Homeland Security Act of 2002 (P.L. 107-296) transfers the Office of

Federal Protective Service (FPS) to the DHS Directorate for Border and

Transportation Security. FPS was formerly part of the Public Buildings Service

(PBS) at the General Services Administration (GSA). Under PBS, approximately

7,000 contract security personnel supplement nearly 1,400 FPS employees.66 FPS

delivers integrated security and law enforcement services to all federal buildings that

GSA owns, controls, or leases, providing protection to federal employees and visitors

in about 8,300 properties within the United States. Services provided by FPS

include:67

Providing a visible uniformed presence in major federal facilities

Responding to criminal incidents and other emergencies

Installing and monitoring security devices and systems

Investigating criminal incidents

Conducting physical security surveys

Checked baggage screeners were not included in the early personnel estimates.

The latter TSA provisions emerged from a contentious mark up meeting of the House

Select Committee on Homeland Security on July 22, 2002 on H.R. 5005.

This section was prepared by (name redacted).

Information provided in a facsimile by the Office of Federal Protective Service, May 9,

2002.

General Services Administration. Security and Law Enforcement Services – Frequently

Asked Questions. Available at [http://www.gsa.gov/]. Last visited on May 22, 2003. Under

“Key Information” click on “Security and Law Enforcement Services - Frequently Asked

Questions.”

CRS-19

Coordinating a comprehensive program for occupant agencies’

emergency plans

! Providing formal crime prevention and security awareness programs

! Providing police emergency and special security services during

natural disasters, major civil disturbances, and other incidents and

emergencies

It is notable that many agencies are responsible for securing their buildings and

protecting their personnel. These include agencies and associated facilities that: (1)

are exempted statutorily from GSA’s authority; (2) have requested and received a

delegation of security authority from GSA; or (3) have independent real property

authority.68 At the same time, any federal agency may contract with FPS for security

services. Provisions in the Homeland Security Act allow the GSA Administrator to

retain the authority to collect such fees and authorize the transfer of funds from the

rents and fees collected by GSA to DHS. The Act also requires that these funds be

used solely for the protection of buildings and grounds owned or occupied by federal

government entities. Furthermore, it would prohibit the DHS Secretary from

obligating amounts in the Federal Buildings Fund.

Federal Law Enforcement Training Center69

The Homeland Security Act of 2002 (P.L. 107-296) transfers the Federal Law

Enforcement Training Center (FLETC) to the DHS Directorate of Border and

Transportation Security. FLETC was formerly part of the Department of Treasury.

While federal law enforcement agencies have different training needs and federal law

enforcement officers (police, inspectors, and investigators) receive training from

many sources, federal agencies often send their personnel to FLETC for various

levels of training, ranging from basic training to more advanced investigative

techniques on such topics as financial or computer crime. The main FLETC campus

is located in Glynco, Georgia. For FY2002, Congress provided $132 million for

FLETC. An additional $46 million in offsetting fee collections was available for

center operations, bringing the FLETC net budget authority to $178 million.

The Homeland Security Act also includes provisions stating that the enactment

would not affect law enforcement training agreements already entered into, and all

FLETC activities would be continued in the same locations as prior to enactment.

One rationale for transferring FLETC to the DHS Directorate of Border and

Transportation Security is that the new directorate will be hiring additional staff in

the coming years. In addition, with the Customs Services being transferred to the

new directorate, the Secret Service to DHS, and the Bureau of Alcohol, Tobacco, and

Firearms to the Department of Justice, FLETC would have been the lone law

enforcement entity within the Department of the Treasury.

Twenty-six agencies have independent real property authority. The list includes, for

example, all 13 executive departments, the Federal Emergency Management Agency, the

General Services Administration, and the U.S. Postal Service. (U.S. Department of Justice,

Vulnerability Assessment of Federal Facilities. Washington, DC, U.S. Department of

Justice, 1995, p. H-2.)

This section was prepared by William Krouse.

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Office for Domestic Preparedness70

The Homeland Security Act of 2002 (P.L. 107-296) transfers the Office for

Domestic Preparedness to the DHS Directorate of Border and Transportation

Security. ODP, formerly part of the Office of Justice Programs at the Department of

Justice,71 provides federal training, equipment grants, and technical assistance to state

and local first responders.72 ODP’s activities focus exclusively on preparedness for

terrorist attacks – particularly those involving weapons of mass destruction (WMDs).

For FY2002, Congress provided $651 million for ODP.

While ODP offers assistance in a law enforcement context and provides most

of its assistance to law enforcement officers, it also offers assistance to fire and

rescue personnel, and public health officials. This approach, with an emphasis on

law enforcement, was outlined in the Interagency Domestic Terrorism Concept of

Operations Plan (CONPLAN), which divides terrorism response into two categories:

consequence management – responding to and recovering from attacks; and crisis

management – investigating crime scenes and pursuing terrorists.73 The Bush

Administration, however, does not support the distinction between consequence and

crisis management, calling it an “artificial distinction.”74 In its FY2003 proposed

budget, the Administration proposed transferring ODP to FEMA, and consolidating

about $3.5 billion in existing and proposed preparedness assistance programs for

state and local first responders in a single formula grant program to be administered

by FEMA.75

The Homeland Security Act expands ODP’s mission from supervising terrorism

preparedness training and assistance programs to also include coordinating state and

local preparedness efforts on a national basis. Other agencies charged with

consequence management functions, like FEMA and the HHS Office for Emergency

This section was prepared by Ben Canada. For more information on domestic

preparedness issues, see CRS Report RL31490, Department of Homeland Security: State

and Local Preparedness Issues, by Ben Canada.

The ODP web site is: [http://www.ojp.usdoj.gov/odp/].

Other federal agencies offer preparedness assistance with a consequence management

focus: (1) FEMA’s Office for National Preparedness, for example, provides grants for

planning, equipment, and exercises, and provides technical assistance; (2) the U.S. Fire

Administration and the Emergency Management Institute, also located within FEMA,

provides a wide array of training to state and local responders; and (3) the Department of

Health and Human Services (HHS), through its Office of Emergency Preparedness, seeks

to coordinate the resources of local governments to prepare for weapons of mass destruction

incidents. For further information, see CRS Report RL31227, Terrorism Preparedness:

Catalog of Selected Federal Assistance Programs, coordinated by Ben Canada.

The CONPLAN is available from the Federal Bureau of Investigation’s web site at

[http://www.fbi.gov/publications/conplan/conplan.pdf].

Office of Homeland Security, Department of Homeland Security (Washington: GPO,

June 2002), pp. 13-14.

For further information on the formula grant proposal, see CRS Report RL31475, First

Responder Initiative: Policy Issues and Options, by Ben Canada.

CRS-21

Preparedness are transferred to the Emergency Preparedness and Response

Directorate, along with the FBI’s National Domestic Preparedness Office and

Domestic Emergency Support Team. These transfers effectively split responsibility

for preparedness assistance programs between the Directorate of Border and

Transportation Security and the Directorate of Emergency Preparedness and

Response.76 In part, this split reflects the concern of key policy makers that ODP

would lose its focus and expertise on crisis management and law enforcement

training if wholly transferred to the Directorate of Emergency Preparedness and

Response, the cornerstone of which is FEMA.77

Issues for Congress

To more effectively address the increased threat of terrorism, Congress passed

legislation that establishes the cabinet-level Department of Homeland Security

(DHS). To DHS were transferred several federal agencies charged with overseeing

elements of border, transportation, federal building security, law enforcement

training, and domestic preparedness. The establishment of the new department and

its Directorate of Border and Transportation Security raises new issues for Congress.

The most immediate issue for the 108th Congress will be to work with the

Administration to make the new department operational – up and running–at a time

when threats to borders and transportation systems are real and arguably imminent.

Other corollary issues, listed below, may arise as well.

Expeditious Consolidation of Agencies and Functions. In the short

run, there is a real risk that the reorganization will make the country more vulnerable

to terrorist attacks by disrupting these agencies, dispersing their resources, and

distracting their attention from more immediate threat responses and related

initiatives. What steps can be taken to maintain the desired expanded focus on

counterterrorism and border security while consolidating these agencies? How can

any disruption to legitimate travel and commerce caused by an expanded focus on

counterterrorism be mitigated?

Integration and Strategic Focus. In the long run, after the physical

consolidation of these agencies has been completed, many integrative and

harmonization of operations steps may still be necessary. How will these agencies

(within and without the Directorate) share information needed for border security?

How will agreements be struck to more effectively integrate the border inspection

activities? How will coordination be improved with the multiple agencies that are

left out of the consolidation? Finally, can the activities of the transferred agencies

and functions be conducted under a single and unified strategic vision that is built

around the central mission – counterterrorism – while also incorporating the

transferred agencies’ other border management- and transportation security-related

missions and activities?

For further information, see CRS Report RS21367, Emergency Preparedness and

Response Directorate of the Department of Homeland Security, by (name redacted),

et al.

See generally Jason Peckenpaugh, “Homeland Security Bill Would Reorganize Federal

First Responder Programs,” Government Executive, Nov. 14, 2002.

CRS-22

Border Security and Technology. Congress has explored, and in many

cases adopted, other border and transportation security-related provisions. Many of

these provisions center on the concept of extending our border-related activities

outward by identifying threats and preventing their arrival at U.S. borders through

increased intelligence, preinspection, port security, and leverage of 21st Century

technologies. With regard to technology, Congress has passed legislation to require

(1) greater information sharing across agencies and departments through

interoperable computer systems; (2) greater use of biometrics to verify the identity

of travelers, and (3) the submission of electronic manifests from airlines and shippers

prior to arrival. In addition, the Administration, with Congressional support, has

explored new inspection and compliance processes that are designed not only to

increase security, but also to facilitate legitimate cross border travel and commerce.

How quickly and effectively can these provisions be implemented and these new

technologies be brought online to improve threat detection, while keeping borders

open to legitimate cross-border travel and commerce moving?

Adequate Funding and Staffing. Outside observers, including the

Congressional Budget Office78 and General Accounting Office,79 cautioned that

establishing the Department of Homeland Security would increase costs. Several

questions arise here. How can costs be reduced through eliminating redundancies,

or will it be necessary to increase spending to more fully integrate disparate systems

and operations? Should funding be increased for other more specific border securityand transportation-related initiatives, such as continuing the development and

implementation of automated interoperable information systems that track persons

and merchandise (possibly international terrorists and instruments of terror) entering

the United States, or by putting additional inspectors and agents on the border?

Efficient Deployment of Resources. In response to narcotics trafficking

and illegal immigration, Congress increased resources for the Customs Service and

INS. The lion’s share of these increased resources were deployed to the southern tier

of the United States, the Caribbean and the Southwest border with Mexico. How will

existing resources and future supplemental resources be deployed to all the U.S.

borders and preinspection sites abroad to most effectively prevent future terrorist

attacks while simultaneously deterring other illegal activities and facilitating

legitimate cross-border trade and travel?

Based on the assumption that the necessary amounts were appropriated, CBO estimates

that implementing the Homeland Security Act (H.R. 5005, as introduced) would cost about

$4.5 billion over the FY2003 to FY2007 period, and estimated that implementing the

National Homeland Security and Combating Terrorism Act (S. 2452, as introduced) would

cost about $10.6 billion over the same time period. These amounts were in addition to the

funding necessary to maintain the ongoing activities of the transferred agencies. Neither

estimate separated out costs associated with establishing the Border and Transportation

Security division/directorate.

U.S. General Accounting Office, GAO-02-957T, Homeland Security: Critical Design and

Implementation Issues, Statement of David Walker Comptroller General of the United

States, (Washington: July 17, 2002), p. 20. [http://www.gao.gov/new.items/d02957t.pdf]

CRS-23

Coast Guard and Inter-Departmental Coordination. There is growing

recognition that U.S. seaports and maritime traffic are vulnerable to terrorist attacks.

How will the efforts and activities of the Coast Guard and the Directorate of Border

and Transportation Security be coordinated within the Department of Homeland

Security?

Transportation Security. Congress created and charged the Transportation

Security Administration with securing all modes of transportation. In addition, the

vast majority of TSA’s counterterrorism efforts will be directed toward protecting

domestic transportation. How and when will TSA provide increased security for nonaviation modes of transportation? What mechanisms will be necessary to coordinate

the activities of TSA with border agencies, like the new Bureau of Border Security,

Customs, and the Coast Guard?

Federal Building Security. The Federal Protective Service (FPS) is a

relatively small agency charged with providing law enforcement services in GSA

buildings. Located in the Border and Transportation Security Directorate, will FPS

continue to provide the same level of security services to federal agencies? Or will

those services be increased? Will FPS’s mission change to encompass a wider range

of activities related to homeland security?

Federal Law Enforcement Training. The Federal Law Enforcement

Training Center (FLETC) provides various levels of training to federal police,

inspectors, and investigators on levels ranging from basic training to advanced

investigative techniques. It is likely that the new department and directorate will

receive many new law enforcement positions for which recruits will need to be

trained at FLETC, but the center also provides training for numerous other nonhomeland security agencies. Will FLETC continue to provide the same level of

training to non-homeland security agencies, or will it focus on directorate and

departmental needs in the future?

Terrorism Preparedness. Transferred to the Directorate of Border and

Transportation Security, the Office for Domestic Preparedness (ODP) is charged with

coordinating state and local preparedness efforts and supervising terrorism

preparedness grant programs. Will ODP’s activities complement those of the

transferred border and transportation security agencies that were also transferred to

the Directorate? Will ODP’s new responsibilities constitute a major new mission for

the directorate on par with border and transportation security? To what extent will

ODP’s efforts to coordinate state and local terrorism preparedness overlap with those

of the DHS Directorate of Emergency Preparedness and Response

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