Border Security: Inspections Practices, Policies, and Issues

Congressional research reportJan 19, 2005

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Order Code RL32399

CRS Report for Congress

Received through the CRS Web

Border Security:

Inspections Practices, Policies, and Issues

Updated January 19, 2005

name redacted, Coordinator,

Jennifer Lake, and name redacted

Domestic Social Policy Division

James Monke

Resources, Sciences, and Industry Division

Stephen Vina

American Law Division

Congressional Research Service ˜ The Library of Congress

Border Security:

Inspections Practices, Policies, and Issues

Summary

The United States now has a unified inspections operation at the borders; a

single inspector is charged with examining people, animals, plants, goods, and cargo

upon entry to the country. The transfer of these functions to the Department of

Homeland Security (DHS) marks a significant policy shift for all of these functions,

clarifying that — although there are important commercial, economic, health,

humanitarian, and immigration responsibilities — ensuring the security of our

borders is the top priority. The decision by DHS officials to further integrate the

inspection duties so that there is “one face at the border” now means that Customs

and Border Protection (CBP) inspectors are essentially interchangeable and

responsible for all primary inspections. A range of legal, administrative, and policy

issues have emerged with unified border inspections. Legislation implementing the

9/11 Commission recommendations — the National Intelligence Reform Act of 2004

(P.L. 108-458) — had various provisions affecting border inspections.

CBP inspectors are charged with enforcing a host of laws. Immigration law

requires the inspection of all aliens who seek entry into the United States, and every

person is inspected to determine citizenship status and admissibility. All goods being

imported into the United States are subject to a customs inspection, but an actual

physical inspection of all goods is not required. There also are laws that subject

animals and plants to border inspections. This report provides a discussion of these

various laws and the procedural differences in what constitutes an “inspection.”

Border inspections conducted each year number in the hundreds of millions.

Prior to the creation of CBP, the Department of Justice’s immigration inspectors did

most passenger inspections — peaking at 534 million in FY2000 — since all foreign

nationals seeking entry into the United States must be inspected. In terms of customs

inspections, approximately 22.6% of rail containers; 5.2% of sea containers; and

15.1% of trucks entering the United States were physically inspected. Unlike

customs and immigration inspections data, animal and plant health inspections data

enumerate only those passengers referred to secondary inspections for the purpose

of an agricultural inspection. There were 44 million animal and plant inspections in

FY2002.

Border inspections are funded through a combination of federal discretionary

appropriations and user fees. In FY2004, CBP was given budget authority of $2,496

million for border security, inspections, and trade facilitation at ports of entry.

Historic funding data for inspections are not comparable across the “legacy” agencies

as the budget data often included activities in addition to the inspection functions.

Some argue that this reorganization of border inspections has been long needed

and is resulting in a more streamlined and efficient set of procedures at the border

with a clear, single, chain of command. Others warn that the different types of

inspections are quite complex in their own right and that the reorganization is

exacerbating the conflicting priorities at the border, ultimately resulting in many

more people and goods being sent to secondary inspections.

Key Policy Staff: Border Inspections

Subject area

Analyst

Phone

Coordinator

(name redacted)

Customs issues

Jennifer Lake

7-....

[redacted]@crs.loc.gov

Immigration issues

Lisa M. Seghetti

7-....

[redacted]@crs.loc.gov

(name redacted)

7-....

E-mail

7-....

[redacted]@crs.loc.gov

Legal issues

Stephen Viña

7-....

[redacted]@crs.loc.gov

Plant and animal issues

James Monke

7-....

[redacted]@crs.loc.gov

Contents

Overview on Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Parameters of the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ports of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Physical Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Legal Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Authority for Border Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Immigration Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Customs Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Agriculture Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Policies and Practices at the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Immigration Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Primary Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Primary Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Secondary Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Expedited Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Deferred Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Departure Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Electronic Passenger Manifest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Automated Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Differences Between the Northern and Southern Borders . . . . . . . . . . 13

Customs Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Primary Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Commercial Import Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cargo Targeting and Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Passenger Targeting and Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Smuggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Differences Between the Northern and Southern Border . . . . . . . . . . 21

Animal and Plant Health Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Primary Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Inspection Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Passenger Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Cargo Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Smuggling and Trade Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Difference Between Northern and Southern Borders . . . . . . . . . . . . . 25

Related Policies and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Aviation Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Agencies Conducting Agricultural Inspections . . . . . . . . . . . . . . . . . . 26

Visa Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Protection Against Communicable Diseases . . . . . . . . . . . . . . . . . . . . 28

Cargo and Supply Chain Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Border Inspection Trends by Ports and Modes of Entry . . . . . . . . . . . . . . . . . . . 29

Immigration Inspections Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Land Ports of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Air Ports of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Sea Ports of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Inspection of Alien Crew Members . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Cargo Inspections Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Cargo Inspections at Airports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Cargo Inspections at Seaports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Cargo Inspections at Land Ports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Animal and Plant Health Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Inspection Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Passengers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Cargo and International Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Ships, Aircraft, Vehicles, and Railcars . . . . . . . . . . . . . . . . . . . . . . . . 39

Budget and Staffing for Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Immigration Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Customs Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Animal and Plant Health Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Issues and Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Policy Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Competing Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Targeting High-Risk Shipments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Screening Aliens at the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

9/11 Commission Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . 47

The National Intelligence Reform Act of 2004 (P.L. 108-458) . . . . . . 49

Administrative Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Adequacy of Infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Inter-Agency and Inter-Department Coordination . . . . . . . . . . . . . . . . 50

Training of Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Database Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Overarching Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

List of Figures

Figure 1. Passenger Inspections, FY1998-FY2002 . . . . . . . . . . . . . . . . . . . . . . . 30

Figure 2. Immigration Inspections: Secondary Referrals and Denials . . . . . . . . 31

Figure 3. Top Five Busiest Land Ports of Entry by State . . . . . . . . . . . . . . . . . . . 32

Figure 4. Top Five Busiest Immigration Airports of Entry by State . . . . . . . . . . 33

Figure 5. Top Five Busiest Sea Ports of Entry by State . . . . . . . . . . . . . . . . . . . 34

Figure 6. Customs Cargo Processed by Type of Conveyance . . . . . . . . . . . . . . . 35

Figure 7. Trucks Conveying Cargo, 2000-2002 . . . . . . . . . . . . . . . . . . . . . . . . . 36

Figure 8. Railcars Conveying Cargo, 2000-2002 . . . . . . . . . . . . . . . . . . . . . . . . 37

Figure 9. Agricultural Inspections, FY1998-FY2002 . . . . . . . . . . . . . . . . . . . . . 38

Figure 10. Agricultural Inspections by Type of Conveyance . . . . . . . . . . . . . . . 39

List of Tables

Table 1. Inspections Staff for All Locations, FY2001-FY2004 . . . . . . . . . . . . . 40

Table 2. Immigration Inspections Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Table 3. Budget Authority for Customs Commercial Activities . . . . . . . . . . . . . 42

Table 4. APHIS Agricultural Quarantine Inspection: Budget and Staffing . . . . 44

Appendix A: Immigration Inspection Workload, FY2002 . . . . . . . . . . . . . . . . . 56

Appendix B. Selected Immigration Inspections Data . . . . . . . . . . . . . . . . . . . . . 57

Appendix C. Top 10 U.S. Container Ports CY1998-CY2002 . . . . . . . . . . . . . . 58

Appendix D. Customs Workload Data FY1998-FY2002 . . . . . . . . . . . . . . . . . . 59

Appendix E. Customs Narcotics Seizures FY1998-FY2002 . . . . . . . . . . . . . . . 60

Appendix F. U.S.-Canada Land Border: Number of Truck or Railcar

Crossings (CY2000-CY2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Appendix G. U.S.-Mexico Land Border: Number of Truck or Railcar

Crossings CY2000-CY2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Appendix H. Agricultural Inspections of International Passengers, Cargo,

and Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Appendix I. Agricultural Inspections of International Modes of Conveyance . . 64

Border Security: Inspections Practices,

Policies, and Issues

Overview on Inspections

The United States now has a unified inspections operation at the borders; one

inspector is charged with examining people, animals, plants, goods, and cargo upon

entry to the country. This report delves into border inspections from the perspectives

of the three major types of inspections: immigration, customs, and animal and plant

health. The transfer of these functions to the Department of Homeland Security

(DHS) marks a significant policy shift concerning all of these functions, clarifying

that — although there are important commercial, economic, health, humanitarian,

and immigration responsibilities — ensuring the security of our borders is the top

priority. The decision by DHS officials to further integrate the inspection duties so

that there is “one face at the border” now means that Customs and Border Protection

(CBP) inspectors are essentially interchangeable and responsible for all primary

inspections.

Background

Laws pertaining to border inspections date back to the earliest days of the

United States federal government, and border inspections historically were organized

along functional responsibilities. The federal authority to assess and collect duties

on goods, wares, and merchandise imported into the country was established by the

second act that the 1st Congress enacted in 1789, and later that year the administrative

apparatus of the U.S. Customs Service was authorized as well. Although Congress’

exclusive role over naturalization and immigration is found in Article 1 of the U.S.

Constitution, the formal inspection of aliens entering the United States came later in

our history. In 1882, Congress enacted a law providing for an examination of all

aliens who arrive in the United States and in 1891 established the Bureau of

Immigration, which later became the Immigration and Naturalization Service (INS).

Laws regarding plant quarantine and inspection date back to 1912.

For many years, the INS and Customs Service inspectors were “cross

designated” so that they could perform initial examinations in each other’s functional

responsibilities. In practice this division of labor reportedly resulted in INS

inspectors being the lead at land ports of entry and Customs Service inspectors being

the lead at air and sea ports of entry. The U.S. Department of Agriculture (USDA)

had always handled the inspection of plants and animals independently.

Today, the Department of Homeland Security (DHS) is charged with overseeing

most of the border inspections functions. The Bureau of Customs and Border

Protection (CBP) includes customs inspectors, immigration inspectors, agricultural

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inspectors, and the border patrol. CBP is located in the Directorate of Border and

Transportation Security in DHS.1

Some argue that this reorganization of border inspections has been long needed

and will result in a more streamlined and efficient set of procedures at the border

with a clear, single, chain of command. Others warn that the different types of

inspections are quite complex in their own right and that the reorganization will serve

to exacerbate competing priorities, ultimately resulting in many more people and

goods being sent to secondary inspections.

This report opens with an overview of the parameters of the border, both

physical and legal. It then presents the statutory basis for border inspections in the

three major areas. At the crux of the report is the third section that explains the

policies and procedures for immigration, customs, and agricultural inspections. A

section on trends by ports and modes of entry analyzes the volume and types of

inspections in recent years leading up to the establishment of DHS. The fifth section

of this report summarizes budget and staffing over the past five years for these three

functions. The report concludes with a discussion of the issues and concerns that are

emerging with the implementation of the unified border inspections policies and

procedures.

Parameters of the Border

Ports of Entry. For the past several years, there have been 317 official ports

of entry (POE) into the United States. At a given port, inspectors may be responsible

for more than one mode of transportation, even processing all three conveyance types

of air, land, and sea. Buffalo and Detroit, for example, have air, sea, and land POEs,

but the likelihood of inspectors having multiple responsibilities are greater at the

smaller POEs. CBP acknowledges that “the merging of agencies into one port of

entry definition is currently a work in progress,” and the POE numbers do not neatly

add up across categories. CBP currently reports that there 216 airports that are

international POEs, 143 seaports, and 115 land POEs. Two locations are inland

POEs.2

Physical Boundaries. The land border with Canada spans 5,525 miles and

is the longest non-militarized border in the world. There are 84 land POEs along the

northern border, which include but are not limited to three in Idaho, 13 in Maine,

three in Michigan, five in Minnesota, 10 in Montana, 12 in New York, 18 in North

Dakota, seven in Vermont, and 12 in Washington. On a daily basis, reportedly over

The Homeland Security Act (P.L. 107-296) placed immigration inspections, investigations,

detention, removal, and the border patrol functions into a Bureau of Border Security, kept

the U.S. Customs Service intact, and placed both in the Directorate of Border and

Transportation Security. As it established the Department of Homeland Security in 2003,

the Bush Administration split up the U.S. Customs Service and the proposed Bureau of

Border Security and reconfigured them into two bureaus: one that pertains to border

activities known as Customs and Border Protection, and one that pertains to interior

enforcement known as Immigration and Customs Enforcement.

Data provided by CBP Office of Congressional Affairs, in e-mail dated Apr. 22, 2004.

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250,000 people enter the United States from Canada. Canada is the single largest

trading partner of the United States, with total merchandise trade (exports and

imports) exceeding $372 billion in 2003. Indeed, the largest trade link in the world

is the Ambassador Bridge (connecting Detroit, Michigan and Windsor, Ontario) that

has more than 7,000 trucks crossing daily transporting goods worth more than $120

billion per year.

The southern land border with Mexico is 1,933 miles across and has 25 land

POEs, which include but are not limited to six in California, six in Arizona, two in

New Mexico, and 11 in Texas. Over 800,000 people arrive from Mexico daily.

Mexico is our second largest trading partner, with total merchandise trade at $220.3

billion in 2003, down from $247.2 billion in 2000 . The POE at Laredo/Nuevo

Laredo reportedly has the highest volume of trade on the southern border.

The coast line of the United States is 12,479 miles long, and there are 143 sea

POEs. Some sea and river POEs are principally commercial ports while others

receive passengers.

Legal Boundaries. From a legal perspective, the parameters of the border

for inspection purposes are generally given a flexible reading by courts and often vary

from the geographical confines mentioned above. “Border searches”3 may occur

when entry is made by land from the neighboring countries of Mexico or Canada, at

the place where a ship docks in the United States after having been to a foreign port,

and at any airport in the country where international flights first land. Courts have

given the “border” a more flexible reading because of the significant difficulties in

detecting the increasingly mobile smuggler. Aside from searches at the actual

physical border, the law recognizes two legal constructs that allow border searches

to move beyond the geographical confines of the actual port of entry.

Functional Equivalent. Border searches may be conducted within the

interior of the United States. The border search exception extends to those searches

conducted at the “functional equivalent” of the border. The “functional equivalent”

of a border is generally the first practical detention point after a border crossing or

the final port of entry.4 It is justified because in essence, it is no different than a

search conducted at the border and occurs only because of the impossibility of

requiring the subject searched to stop at the physical border. A search occurs at the

border’s functional equivalent when: (1) a reasonable certainty exists that the person

or thing crossed the border; (2) a reasonable certainty exists that there was no change

in the object of the search since it crossed the border; and (3) the search was

conducted as soon as practicable after the border crossing.5 Places such as

international airports within the country and ports within the country’s territorial

The term “border search” is a term of art that describes a category of searches generally

recognized as an exception to the Fourth Amendment’s warrant and probable cause

requirements. They are not exempt, however, from the Fourth Amendment’s reasonableness

standard. (See the section “Constitutional Considerations” later in this report).

Thirty-First Annual Review of Criminal Procedure; Border Searches, 90 Geo. L.J. 1087,

1190 (2002).

See United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991).

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waters or stations at the intersection of two or more roads extending from the border

exemplify such functional equivalents.6

Extended Border Search. The border search exception may also be

extended to allow warrantless searches beyond the border or its functional equivalent.

Under the “extended border search” doctrine, government officials may conduct a

warrantless search beyond the border or its functional equivalent if (1) the

government officials have reasonable certainty or a “high degree of probability” that

a border was crossed; (2) they also have reasonable certainty that no change in the

object of the search has occurred between the time of the border crossing and the

search; and (3) they have “reasonable suspicion” that criminal activity was

occurring.7 This three-part test ensures that a suspect still has a significant nexus

with a border crossing so that border officials can reasonably base their search on

statutory and constitutional authority and to ensure that the search is reasonable.8

Authority for Border Inspections

While the Homeland Security Act (HSA, P.L. 107-296) transferred the

inspection “functions” of INS and Customs Service to DHS, it did not revise the laws

that authorize these inspections. HSA did specify which laws DHS agricultural

inspectors may utilize to conduct inspections, but it did not alter these underlying

statutes. Consequently, understanding the legal authorities that guided agricultural,

customs and immigration inspections functions before and after their transfer to DHS

becomes increasingly important. At this point, it is unclear whether the “one face at

the border” initiative promoted by DHS will also result in, or perhaps some could

argue even require, the future consolidation of the authorities each legacy agency

individually possessed.

Immigration Inspections. The former INS, through the Attorney General

(AG), was responsible for enforcing and administering the Immigration and

Nationality Act of 1952 (INA) (codified as amended at 8 U.S.C. §§1101 et seq.). The

HSA, as modified by the President, transferred administrative authority over

immigration enforcement to the Directorate of Border and Transportation Security.

The HSA effectuated the transfer of immigration authority in statutory language that

is separate and apart from the INA itself.9 According to DHS regulations, all

Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).

“Reasonable certainty” in this context has been defined as a standard which requires more

than probable cause, but less than proof beyond a reasonable doubt. United States v.

Cardenas, 9 F.3d 1139, 1148 (5th Cir. 1993); see, e.g.,United States v. Delgado, 810 F.2d

480, 482 (5th Cir. 1987). In Delgado, smugglers used a foot-bridge to transfer narcotics to

delivery trucks on a farm near El Paso, Texas. The court upheld an extended border search

conducted on a farm road near and leading from the border but otherwise away from the

official border checkpoint.

United States v. Teng Yang, 286 F.3d. 940, 946 (7th Cir. 2002).

For example, §402 of the HSA makes the Under Secretary of the Directorate of Border and

Transportation Security responsible for “carrying out the immigration enforcement functions

(continued...)

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authorities and functions of the DHS to administer and enforce the immigration laws

are now vested in the Secretary of DHS or his delegate.10 The Attorney General,

however, retains concurrent authority in many key areas of immigration law.

Immigration officials possess a wide variety of enforcement mechanisms to

carry out their mission of enforcing the INA. Immigration enforcement activities

generally include providing border security and management; conducting inspections

of persons at U.S. international ports; enforcing immigration law; detaining and

removing aliens found in violation of immigration and related laws; and providing

immigration intelligence. Under 8 U.S.C. §1225(a)(3), all aliens who are applicants

for admission or are seeking entrance or readmittance to or transit through the United

States shall be inspected by “immigration officers.” If the immigration officer is

satisfied that the applicant is entitled to enter, the officer admits the applicant, though

his decision may not be final and the applicant may be subject to other inspections.

In the event an alien is “not clearly and beyond a doubt”11 entitled to be admitted or

further inquiry is required, the applicant may be detained pending a final

determination of admissibility by an immigration judge. 8 U.S.C. §1225(d) allows

immigration officers to board any vessel, aircraft, railway car, or other conveyance

in which an immigration officer believes aliens are being brought into the United

States.

The term “immigration officer” is statutorily defined in the INA to mean any

employee or class of employees of the INS or of the United States designated by the

Attorney General, individually or by regulation, to perform the functions of an

immigration officer specified by the INA.12 DHS, however, has implemented

regulations clarifying the meaning of “immigration officer” with respect to DHS

personnel. The regulation (8 C.F.R. §103.1(b)) designates various categories of CBP

and ICE officials as immigration officers authorized to exercise the powers and

duties of such officers as specified by the INA and applicable regulations. The

regulation also allows the Secretary of DHS to designate other employees of DHS or

of the United States as immigration officers.

Section 1357 of Title 8 of the U.S. Code gives any officer or employee of the

Service authorized under regulation prescribed by the AG the authority to, without

a warrant, interrogate aliens, make arrests, conduct searches, board vessels, and

administer oaths. For example, 8 U.S.C. §1357(a)(2) authorizes an officer or

(...continued)

vested by statute in, or performed by the Commissioner of Immigration and Naturalization”

(or any officer, employee, or component of the INS).

8 C.F.R. §2.1 (“The Secretary, in his discretion, may delegate any such authority or

function to any official, officer, or employee of the DHS or any employee of the United

States to the extent authorized by law.”) This regulation was authorized, in part, by §103

of the INA, which was amended by the HSA to charge the Secretary of DHS with the

administration and enforcement of the INA. There is still some question, however, as to the

extent to which the Attorney General has concurrent authority.

8 U.S.C. §1225(b)(2)(A).

8 U.S.C. §1101(a)(18).

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employee of the INS to arrest without a warrant any alien who in his presence is

entering or attempting to enter the United States in violation of U.S. law regulating

the admission, exclusion, expulsion, or removal of aliens. Section 1357(a)(3), among

other things, authorizes an officer or employee of the INS, without warrant and

within a reasonable distance from any external boundary of the United States,13 to

board and search for aliens any vessel within the territorial waters of the United

States and any railway car, aircraft, conveyance, or vehicle. Sections 1357(a)(4) and

(5) authorize officers or employees of the INS to make certain felony arrests. Under

8 U.S.C. §1357(c), officers or employees of the INS are authorized to search without

a warrant any person (and their effects) seeking entrance into the United States for

evidence which may lead to the individual’s exclusion from the country if the officer

possesses reasonable cause to suspect that grounds exist to deny admission to the

United States under the INA. 8 C.F.R. §287.5 designates the DHS officers or

employees who are authorized to carry out the various law enforcement activities

listed in §1357.

Customs Inspections. Formerly located in the Department of the Treasury,

customs inspectors enforced a number of laws to: ensure all imports and exports

comply with U.S. laws and regulations; collect and protect U.S. revenues; and guard

against the smuggling of contraband.14 The HSA transferred generally all customs

functions (except for certain revenue functions) to the DHS in §403. Customs border

activities are now conducted through the CBP and interior enforcement activities are

carried out by ICE officers.

Congress has provided customs with a significant amount of authority to inspect

people and merchandise at ports of entry. Federal authority to assess and collect

duties on goods, wares, and merchandise imported into the country was established

in 1789. Additional authority for customs inspections was passed in 186615 but

generally derives from the Tariff Act of 1930.16 Courts have interpreted 19 U.S.C.

Under current regulations the authority to search any vehicle may be exercised within 100

air miles of the border (8 C.F.R. §287.1(a)). INS officers on roving patrol within this 100

mile radius may not stop a vehicle unless they have a “reasonable suspicion” that a

particular vehicle contains aliens who may be illegally in the United States. See United

States v. Brignoni-Ponce, 422 U.S. 873 (1975).

The primary laws customs enforces are 18 U.S.C. §541 (entry of goods falsely classified);

18 U.S.C. §542 (entry of goods by means of false statements); 18 U.S.C. §545 (smuggling

goods into the U.S.); 18 U.S.C. §§981-982 (property forfeiture); 18 U.S.C. §§1956-1957

(money laundering); 18 U.S.C. §§2319-2320 (intellectual property rights); 15 U.S.C.

§§1121-1127 (trademarks); Title 17 of the U.S.C. (copyrights); Title 19 of the U.S.C.

(customs laws); Title 35 of the U.S.C. (patents).

Act of July 18, 1866, ch. 201, §3, 14 Stat. 178 (codified as amended at 19 U.S.C. §482).

Act of June 17, 1930, ch. 497, 46 Stat. 590 (see §§461, 467, 496, 581, 582) (codified as

amended at 19 U.S.C. §§1461, 1467, 1496, 1581 and 1582, respectively).

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§1581(a) as granting customs inspectors broad authority to conduct border searches.17

Section 1581(a) states:

Any officer of the customs may at any time go on board of any vessel or vehicle

at any place in the United States or within the customs waters or ... at any other

authorized place ... and examine the manifest and other documents and papers

and examine, inspect, and search the vessel or vehicle and every part thereof and

any person, trunk, package, or cargo on board, and to this end may hail and stop

such vessel or vehicle, and use all necessary force to compel compliance.

Under 19 U.S.C. §1461, customs officers may inspect all merchandise and baggage

imported or brought in from any contiguous country at the first port of entry the

merchandise or baggage arrives. 19 U.S.C. §1467 provides customs officers with

authority to inspect and search persons, baggage, and merchandise discharged or

unloaded from a vessel that arrives in the United States or Virgin Islands (whether

directly or via another port or place in the United States or Virgin Islands) from a

foreign port, place or Territory or possession of the United States. Congress has

granted customs the authority, under 19 U.S.C. §1496, to search the baggage of

persons arriving in the United States in order to ascertain what articles are contained

therein and whether such articles are subject to duty or prohibited.

Pursuant to 19 U.S.C. §482, Congress has empowered customs to “stop, search,

and examine” any “vehicle, beast, or person” upon which an officer suspects there

is merchandise which is subject to duty or introduced to the United States contrary

to law. Moreover, a customs officer may search any trunk or envelope wherever

found, in which the officer has a reasonable belief to suspect there is merchandise

imported contrary to law. Finally, under §482, a customs officer may seize and

secure for trial any merchandise found on any inspected vehicle, beast, or person, or

in any inspected trunk or envelope, which the officer has reasonable cause to believe

is subject to duty or was introduced unlawfully.

Additionally, an officer of customs is authorized to search and conduct

document and safety inspections of any vessel or vehicle inside the United States,

within customs waters,18 or in any other authorized place. Customs officials

generally may not search on the high seas;19 however, officers of the Coast Guard,

See, e.g., United States v. Sutter, 2003 U.S. App. LEXIS 17660 at 5 (9th Cir. Aug. 25,

2003); United States v. Molina-Tarazon, 279 F.3d 709, 712 (9th Cir. 2002); United States

v. 1903 Obscene Magazines, 907 F.2d 1338, 1341 (2d Cir. 1990); United States v. Glasser,

750 F.2d 1197, 1204 (3d Cir. 1984).

Customs waters are defined as “the waters within four leagues of the coast of the United

States.” 19 U.S.C. §1401(j) (approximately 12 miles). Customs waters may also be

expanded by treaty or “other arrangement.”; See, e.g., United States v. Loalza-Vasquez, 735

F.2d 153, 157 (5th Cir. 1984) (customs waters expanded by arrangement with Panamanian

officials).

See, e.g., United States v. Gonzalez, 875 F.2d 875, 879-80 (D.C. Cir. 1989) (19 U.S.C.

§1581(a) does not per se authorize all high seas searches by Customs). Customs may pursue

a fleeing vessel beyond customs waters if the vessel was originally stopped within customs

waters. See, e.g., United States v. Berriel-Ochoa, 740 F.2d 883, 884 (11th Cir. 1984) (upheld

(continued...)

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according to 19 U.S.C. §1401(i), are deemed to be customs officers20 and may

conduct inspections on the high seas.21 In order to carry out the various inspection

provisions, 19 U.S.C. §1582 allows the Secretary of the Treasury to prescribe

regulations for the search of persons and baggage. Title 19, Part 162 of the Code of

Federal Regulations describes the inspection, search, and seizure procedures for

customs and makes all persons coming into the United States from foreign countries

liable to detention and search by authorized officers of the government under such

regulations.

The law, however, makes clear that a customs inspection is not required of every

piece of merchandise, goods or cargo brought into the United States, though there are

reporting requirements. In terms of the entry examination for imported merchandise,

the statute states that the Customs Service “shall inspect a sufficient number of

shipments, and shall examine a sufficient number of entries, to ensure compliance

with the laws enforced by the Customs Service.”22

Agriculture Inspections. Agriculture inspectors play an integral part in the

Department of Agriculture’s role in supplying a safe and affordable food supply. In

part, the Department of Agriculture’s Animal and Plant Health Inspection Service

(APHIS) was responsible for enforcing the laws that protect and promote U.S.

agricultural health from agricultural pests and diseases by conducting inspections at

various ports of entry. Under the HSA, the Secretary of Agriculture’s import and

entry inspection activities (which are conducted through APHIS) relating to the laws

specified below have been transferred to the DHS.23 The Under Secretary for Border

and Transportation Security is responsible for conducting agricultural inspections at

ports of entry in accordance with the regulations, policies, and procedures issued by

the Secretary of Agriculture for the following Acts:24

The Virus-Serum-Toxin Act (21 U.S.C. §§151 et seq.);

The Honeybee Act (7 U.S.C. §§281 et seq.);

Title III of the Federal Seed Act (7 U.S.C. §§1581 et seq.);

(...continued)

stop of vessel in customs waters and pursuit two miles beyond customs waters).

See 14 U.S.C. §143; 19 U.S.C. §1401(i) (“The term ‘officer of the customs’ and ‘customs

officer’ mean any officer of the Bureau of Customs of the Treasury Department or any

commission, warrant, or petty officer of the Coast Guard....”).

14 U.S.C. §89(a) states:

The Coast Guard may make inquires, examinations, inspections, searches,

seizures, and arrests upon the high seas and waters upon which the United States

has jurisdiction.... For such purposes, commissioned, warrant, and petty officers

may at any time go on board any vessel ... address inquiries to those on board,

examine the ship’s documents and papers, and examine, inspect, and search the

vessel and use all necessary force to compel compliance.

19 U.S.C. §1499(a)(1)(D).

P.L. 107-296 §§402(7), 421.

Ibid., at §421(d)(2). Quarantine activities did not accompany the transferred statutes.

CRS-9

The Plant Protection Act (7 U.S.C. §§7701 et seq.);

The Animal Health Protection Act (7 U.S.C. §§8301 et seq.);

The Lacey Act Amendments of 1981 (16 U.S.C. §§3371 et seq.);

and

Section 11 of the Endangered Species Act of 1973 (16 U.S.C.

§§1540).

As the previous list demonstrates, agriculture inspectors are responsible for

enforcing various animal and plant protection laws. In some cases, agriculture

inspectors have the authority to conduct warrantless searches of any person or

conveyance entering the country in furtherance of those laws. For instance, under the

Plant Protection Act and the Animal Health Protection Act, agriculture inspectors

have the authority to conduct warrantless searches of any person or vehicle entering

the United States to determine whether the person is carrying any plant or animal in

violation of the statute.25 Agriculture inspectors also have the authority under the

Lacey Act to detain for inspection any vessel, vehicle, aircraft, or any package, crate,

or other container upon the arrival of such conveyance or container in the United

States from any point outside the United States.26 The Endangered Species Act also

allows agriculture inspectors to detain for inspection any package, crate, or other

container and all accompanying documents, upon importation.27

Policies and Practices at the Border

Although the HSA reorganized the administration of border inspections, it did

not make significant changes in the policies and practices at the border. Most of the

statutory revisions of the inspection process that were aimed at antiterrorism and

border security were in place prior to the establishment of CBP. In part a response

to the 1993 World Trade Center bombing, Congress had already strengthened the

anti-terrorism provisions in the INA and enacted provisions that shifted immigration

inspectors from the “services” role to the “enforcement” role.28 In 1996, Congress

first required the entry-exit system that is now known as US-VISIT.29 In 2000 and

2002, Congress revised the plant and animal health protection statutes into a more

compact framework.30 After the September 11, 2001 terrorist attacks, Congress

enacted further measures aimed at improving immigration inspectors’ terrorist

See 7 U.S.C. §7731(b)(1) (plants); 7 U.S.C. §8307(b)(1) (animals).

16 U.S.C. §3375.

Ibid., at §1540.

Previously immigration inspectors who identified an alien lacking proper documents

would refer them to other INS officers who handled the enforcement of the INA and

immigration judges in the Executive Office for Immigration Review. Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208) and the

Antiterrorism and Effective Death Penalty Act (P.L. 104-132).

§110 of IIRIRA.

Plant Protection Act (P.L. 106-224, June 2000, 7 USC 7701 et seq.), and the Animal

Health Protection Act (Title X of P.L. 107-171, May 2002, 7 USC 8301 et seq.).

CRS-10

detection capabilities.31 Congress also included antiterrorism provisions in

legislation reauthorizing the U.S. Customs Service in 2002.32 CBP inspectors now

are tasked with more effectively accomplishing the laws and policies of the legacy

agencies.

Immigration Inspections

Primary Purpose. Having a visa or other form of travel document does not

guarantee admission into the United States. The INA requires the inspection of all

aliens who seek entry into the United States;33 and in some cases allows for

preinspection when departing a foreign country on route to the United States.34 The

purpose of the inspection is to determine the admissibility of a traveler to the United

States.35 Section 287 of the INA enumerates the following authorities for

immigration officers, including immigration inspectors:

to question, under oath any person seeking to enter the United States

in order to determine admissibility and,

to search, without warrant, the person and belongings of any

applicant seeking admission.36

In addition to conducting inspections, immigration inspectors enforce various

criminal and administrative statutes, apprehend violators, and adjudicate a variety of

applications for various immigration benefits. Later in this report, Appendix A

presents a sample of the immigration inspector’s workload.

Primary Inspections. Primary inspection, the first level of inspection,

consists of a brief interview with an immigration inspector, a cursory check of the

traveler’s documents and a query of the Interagency Border Inspection System

(IBIS).37 Primary inspections are quick (usually lasting no longer than a minute);

Enhanced Border Security and Visa Reform Act (P.L. 107-173).

Title 3, Chapter 4, of the Trade Act of 2002 (P.L. 107-210).

§235(3) of the INA.

Section 123 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA; P.L. 104-208) amended §235 of the INA by requiring the Attorney General to

establish preinspection stations in at least five foreign airports that are identified as being

one of ten foreign airports that serve as the last point of departure for the greatest number

of inadmissible aliens. There are currently 15 foreign airports that participate in the

preinspection program.

For a full discussion of alien screening and admissibility, see CRS Report RL31512, Visa

Issuances: Policy, Issues, and Legislation, by (name redacted), pp. 7-10. See also CRS

Report RL32480, Immigration Consequences of Criminal Activity, by (name redacted);

and CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens, by

(name redacted) and (name redacted).

§287(b)(c) of the INA.

IBIS is a broad system that interfaces with the FBI’s National Crime Information Center

(continued...)

CRS-11

however, if the inspector is suspicious that the traveler may be inadmissible under the

INA or in violation of other U.S. laws, the traveler is referred to a secondary

inspection.38 At 115 airports and 14 seaports, many nonimmigrants are entered into

the new US-VISIT system that uses biometric identification (finger scans) to check

identity and track presence in the United States.39

Secondary Inspections. During secondary inspections, travelers are

questioned extensively and travel documents are further examined. Several

immigration databases are queried as well, including lookout databases.40 The

majority of travelers, however, are not subject to a secondary inspection. As Figure

2 later in this report depicts, on average less than one percent of all travelers were

subjected to secondary inspections between FY1998 and FY2002.

In addition to an inspector denying entry, an alien can withdraw his application

for admission in some cases.41 Immigration inspectors take the following factors into

consideration when determining if an alien should be permitted to withdraw his

admission application:

“the seriousness of the immigration violation;

previous findings of inadmissibility against the alien;

(...continued)

(NCIC), the Treasury Department’s Enforcement and Communications System (TECS II),

the former INS’s National Automated Immigration Lookout System (NAILS) and Nonimmigrant Information System (NIIS) and the Department of State’s (DOS) Consular

Consolidated Database (CCD), Consular Lookout And Support System (CLASS) and

TIPOFF terrorist databases. Because of the numerous systems and databases that interface

with IBIS, the system is able to obtain such information as whether an alien is admissible,

an alien’s criminal information, and whether an alien is wanted by law enforcement.

The grounds for inadmissibility are spelled out in §212(a) of INA. These grounds are:

health-related grounds (e.g., contagious diseases); criminal history; security and terrorist

concerns; public charge (e.g., indigence); seeking to work without proper labor certification;

illegal entrants and immigration law violations; ineligible for citizenship; and aliens

previously removed.

The INA actually requires that all aliens be recorded into the entry-exit system, but USVISIT currently includes only nonimmigrants. For a full discussion of US-VISIT, see CRS

Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program (USVISIT), by Lisa M. Seghetti and Stephen Viña.

The Terrorist Screening Center (TSC) is developing a consolidated lookout database that

is not yet fully operational. For more on lookout and terrorist screening databases of the

TSC, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under

Homeland Security Presidential Directive 6, by (name redacted). The National Security

Entry-Exit Registry System (NSEERS) and the Student and Exchange Visitor Information

System (SEVIS) are also used during secondary inspections. For more on NSEERS, see

CRS Report RL31570, Immigration: Alien Registration, by (name redacted). For more on

SEVIS, see CRS Report RL32188, Monitoring Foreign Students in the United States: The

Student and Exchange Visitor Information System (SEVIS), by (name redacted).

§302(a) of IIRIRA amended §235 of the INA to allow the Attorney General to use his

discretion in permitting an alien to “withdraw his application for admission and depart

immediately from the United States.”

CRS-12

intent on the part of the alien to violate the law;

ability to easily overcome the ground of inadmissibility (i.e., lack of

documents);

age or poor health of the alien; and

other humanitarian or public interest considerations.”42

Although not as frequently used, allowing an alien to withdraw his application for

admission permits the alien to apply for reentry at some later point without being

penalized. Congressional Research Service’s (CRS) examination of INS’

Performance Analysis System (PAS) data reveals that prior to the terrorist attacks,

immigration officials were allowing over 60% of inadmissible aliens to withdraw

their application for admission. In the years following the terrorist attacks, however,

that figure dropped to 37% in FY2001 and 34% in FY2002 (see Appendix B).

Expedited Removal. In 1996, Congress enacted the expedited removal

policy.43 The goal of these provisions was to target the perceived abuses of the

asylum process by restricting the hearing, review, and appeal process for aliens at the

port of entry. As a result, if an immigration inspector at the port of entry finds that

an alien has arrived without proper documentation, the officer can deny admission

and order the alien summarily removed from the United States. Those in expedited

removal who claim a legal right to reside in the United States based on citizenship,

legal permanent residence, asylee or refugee status are to be provided with additional

procedural protections, rather than being immediately returned. Aliens whose visas

have been revoked by Department of State are subject to expedited removal. The

expedited removal provisions provide very limited circumstances for administrative

and judicial review of those aliens who are summarily excluded or removed.44

Deferred Inspections. In a small percentage of cases, usually occurring in

connection with arrivals by aircraft, the inspection process can be deferred and the

individual referred to an immigration office in the area in which the individual will

be residing. Less than 20,000 travelers were referred to deferred inspections each

year, from FY1998 through FY2002. Deferred inspections occur when an immediate

decision regarding admissibility cannot be made at the port of entry and the alien

does not appear to be in blatant violation of admissibility laws. Such cases may

involve the review of incomplete documents.

Departure Control. Departure control is an inspection of travelers departing

Guam, Puerto Rico and the U.S. Virgin Islands who are en route to the continental

United States. It also applies to crew members en route to the United States.45

Departure control provides an added level of security to the inspection process

Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, “Immigration Law and

Procedure,” Admission, Parole, Removal: Authority of Immigration Officers, vol. 5, pp.

61.7-61.02.

The IIRIRA provisions amended §235 of the INA.

For further discussions of expedited removal, see CRS Report RL32621, U.S. Immigration

Policy on Asylum Seekers, by (name redacted).

§215, §231(b) and §251(c) of the INA.

CRS-13

because for those cases where the national interest may be at stake, immigration

officials can prevent the departure of persons to the United States.

Electronic Passenger Manifest. Several provisions in law enacted after

the September 11, 2001 terrorist attacks sought to provide a greater level of border

security by requiring airline carriers to provide the Attorney General with electronic

passenger manifests before arriving in or departing from the United States.46

Passenger manifests are transmitted to immigration officials through the Advance

Passenger Information System (APIS). APIS was created in 1988, cooperatively with

the former U.S. Customs Service, the former INS, and the airline industry, and it is

integrated with IBIS. The submission of the passenger manifests electronically prior

to arrival allows immigration officials to perform inspections on travelers in advance

of their arrival. Additionally, necessitated by concerns with respect to security, the

Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173)

repealed a provision that required airport inspections be completed within 45 minutes

of arrival.47

Automated Inspections. The former INS had a series of programs

collectively referred to as Passenger Accelerated Service System (PortPASS) that

were transferred to the CBP. PortPASS programs ease commuter traffic at land ports

of entry by providing dedicated commuter lanes to facilitate the speedy passage of

low-risk, frequent travelers. Although enrollees in PortPASS are precleared for

inspection purposes (i.e., they do not need to interact with immigration or customs’

inspectors at the border), they are subject to random cursory searches. Although

more commonly seen at land ports of entry,48 A PortPASS program, the INS

Passenger Accelerated Service System (INSPASS), is also used at selected

international airports. INSPASS applicants must enter the United States on certain

nonimmigrant visas49 or under the Visa Waiver Program.50 The number of travelers

who took advantage of automated inspections has risen over recent years, peaking at

2.6 million in FY2002.

Differences Between the Northern and Southern Borders. The

principal difference between the Northern and Southern borders from an immigration

inspections perspective is the documentary requirements. Mexicans are required to

have the proper immigration documents. A special Mexican “laser visa” (formerly

known as the Mexican Border Crossing Card) is used by citizens of Mexico to gain

short-term entry (up to six months) for business or tourism into the United States.

It may be used for multiple entries and is good for at least 10 years. Mexican citizens

§402 of P.L. 107-173 and §115 of P.L. 107-71.

§403 of P.L. 107-173.

For example, the Secure Electronic Network for Travelers’ Rapid Inspection (SENTRI)

at several southwest land ports of entry and NEXUS at several northern ports of entry.

B-1 (visitor for business), E-1 (treaty trader), E-2 (treaty investor) or L-1 (intra-company

transferee).

For a complete description of all PortPASS programs, see (archived) CRS Report

RS21335, The Immigration and Naturalization Service’s Passenger Accelerated Service

System, by Lisa M. Seghetti.

CRS-14

can get a laser visa from the Department of State (DOS) Bureau of Consular Affairs

if they are otherwise admissible as B-1 (business) or B-2 (tourism) nonimmigrants.

Canadians, on the other hand, are waived from the documentary requirements.51

These waivers, including the passport requirement, may be made on the basis of

unforeseen emergency in individual cases, on the basis of reciprocity with respect to

nationals of foreign contiguous territory, and for other reasons specified in the law.

Canadian citizens, except after a visit outside the Western Hemisphere, and

American Indians born in Canada having at least 50% American Indian blood, are

among those who currently are waived from the documentary requirements for

admission.52

In the past, the southwest border received more resources than its northern

border counterpart as a result of a multi-year border patrol strategy that was

implemented in 1994. The border patrol strategy was aimed at strengthening

enforcement of United States immigration laws and placed an emphasis on

decreasing the number of illegal immigrants coming into the United States by

increasing controls at the nation’s borders. Although the resources were primarily

directed at strengthening the border patrol along the southwest border, southwest

ports of entry also have received additional resources aimed at increasing the number

of immigration inspectors. The terrorist attacks, however, brought attention to the

northern border, which has historically been understaffed and lacked the necessary

infrastructure to adequately screen individuals seeking entry into the United States.

Several pieces of legislation passed in the 107th Congress authorized and appropriated

funding for additional staffing and resources along the northern border.53

Customs Inspections

Primary Purpose. Customs inspections aim at ensuring the efficient flow of

legitimate cross-border traffic while simultaneously preventing the entry of

illegitimate goods or people into the United States54 They play a major role in federal

The Canadian exception to the documentary requirements is based upon provisions in INA

[found in §212(d)(4)(A)] that permit the Attorney General, acting jointly with the Secretary

of State, to waive either or both requirements of §212(a)(7)(B)(i). Since the Homeland

Security Act (P.L. 107-296) transferred most immigration-related functions from

Department of Justice (DOJ) to DHS, it is assumed that the Attorney General’s authority for

this provision now rests with the Secretary of DHS.

On Jan. 31, 2003, the Administration issued interim regulations that require passports and

visas for nationals of 54 countries living in Canada and Bermuda previously not required

to present a passport or nonimmigrant visa. The affected aliens are nationals of British

Commonwealth countries and Ireland who are permanent residents of Canada or Bermuda.

Federal Register, vol. 68, no. 21, Jan. 31, 2003, pp. 5190-5194. See CRS Congressional

Distribution Memorandum, Waiving the Documentary Requirements for Visas and

Passports to Enter the United States, by (name redacted) and (name redacted), Oct. 27,

2003.

See CRS Report RS21258, Border Security: U.S. — Canada Immigration Border Issues,

by Lisa M. Seghetti.

Laws enforced by Customs associated with criminal violations include the following: 18

(continued...)

CRS-15

efforts to interdict terrorists and their weapons; illegal drugs; and other contraband

being smuggled into the United States. Customs inspections monitor goods being

imported into the United States, including collection of duties and tariffs. Customs

inspections also involve 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.

The challenge faced by CBP is to achieve a sufficient level of security while not

jeopardizing the efficient flow of commercial trade at the border. Given this

framework it is important to understand that customs inspections serve two different,

yet intertwined purposes: border security; and commercial entry.

Commercial Import Process. Generally, imported goods may not legally

enter the commerce of the United States until CBP has authorized delivery of the

goods. The commercial import process can be described as a series of steps: entry,

inspection, appraisement, and classification and liquidation. For the purposes of this

report only the entry and inspection steps will be discussed.

Importers or their agents are required to file entry documentation with CBP for

each importation, regardless of whether duty must be paid on the merchandise. To

expedite clearance of their goods, importers often file entry documents electronically

and pay surety bonds before the merchandise arrives at the port of entry. Most

importers choose to hire customs brokers to transact their customs-related business.

Entry documents include proper bills of lading, entry forms, invoices, and evidence

of the right to make entry. Importers or their agents must file entry documentation

within five working days of the arrival of a shipment at the port of entry. Importers

must then file an entry summary and deposit estimated duties within 10 working days

of the time the goods are entered and released by CBP.

Upon arrival at a port of entry, the goods are considered ‘imported’ and are

examined by CBP inspectors for admissibility before being released from CBP

custody. CBP inspectors are required to examine a sufficient number of shipments

and entries of merchandise to determine whether:

the merchandise is properly marked to denote country of origin or

other special designations required by law;

the merchandise or shipment contains prohibited articles;

the merchandise or goods in the shipment are properly described on

the invoice;

an excess or shortage of invoiced merchandise or goods exists; and

duty is owed on the imported merchandise or goods.

(...continued)

U.S.C. 541, entry of goods falsely classified; 18 U.S.C. 542, entry of goods by means of

false statements; 18 U.S.C. 545, smuggling goods into the U.S.; 18 U.S.C. 981-982,

forfeiture; 18 U.S.C. 1956-1957, money laundering; 18 U.S.C. 2319-2320, intellectual

property rights; 15 U.S.C. 1121-1127, trademarks; 17 U.S.C., copyrights; 19 U.S.C.,

customs laws; 35 U.S.C., patents.

CRS-16

Following examination, CBP typically releases the goods to the importer, usually

under bond to cover potentially unpaid duties, taxes and other charges. The amount

of duty owed is determined by tariff classification and valuation of the goods. In a

process known as liquidation, CBP inspectors make a final calculation of the

importer’s liability (duties and charges owed).

CBP inspectors rely on targeting mechanisms and random inspections to

conduct their inspection operations. CBP uses preclearance,55 primary inspections,

and secondary inspections in order to help identify those passengers and cargo

considered high-risk from a customs perspective.

Cargo Targeting and Inspection. Customs-related business is increasingly

conducted electronically. Entry documents are often filed electronically through the

Automated Broker Interface (ABI). ABI is a part of the Automated Commercial

System (ACS) used by Customs to track, control, and process all commercial goods

imported into the United States56 ABI is a voluntary program available to brokers,

importers, carriers, port authorities, and independent service centers, that allows

qualified participants to file import data electronically with CBP. According to CBP,

over 96% of all entries are filed through ABI.57 The carrier or the shipper (airline,

vessel operating company, trucking company, etc.) must also file manifest

information with the director of the port where the cargo is entering the United

States. The importer or broker uses ABI to file the entry documents, and the carrier

or shipper uses the Automated Manifest System (AMS) to file manifest information.

There are several variations or components of AMS: Sea or Vessel AMS, Air AMS,

and Rail AMS. There is a varying level of automation with each system. The most

automated mode is the Vessel AMS, the least automated being the truck system,

which does not have a separate AMS module in ACS.58 Once the manifest and the

entry documents are filed, they are matched up by ACS.59

Passenger pre-clearance is a process by which aircraft passengers and crew are sent

through Customs inspection at the departure airport, rather than at the arrival airport in the

United States. Customs conducts pre-clearance operations at Canadian airports in Calgary,

Edmonton, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg; in the Bahamas at

airports in Freeport, and Nassau; in Bermuda; and Aruba. [http://www.cbp.gov/

xp/cgov/toolbox/contacts/preclear_locations.xml].

The Customs Service, and now CBP, has been engaged in a long-term effort to develop

a new automated system to process all commercial goods imported into the United States.

The new system, known as the Automated Commercial Environment (ACE), is being

developed to replace ACS.

Bureau of Customs and Border Protection, “Automated Broker Interface (ABI) and

Contact Information,” which is available at [http://www.cbp.gov/xp/cgov/import/

operations_support/automated_systems/acs/acs_abi_contact_info.xml].

There will be a Truck Manifest Module in the ACE system, and until its development

carriers and importers will continue to use the Free and Secure Trade (FAST), Border

Release Advanced Screening and Selectivity (BRASS) program, and the Pre-Arrivals

Processing System (PAPS).

U.S. Congress, House Committee on Government Reform, Subcommittee on Criminal

Justice, Drug Policy, and Human Resources, Federal Law Enforcement at the Borders and

(continued...)

CRS-17

A risk assessment system is employed to focus customs inspections on high risk

shipments. The Automated Targeting System (ATS) automatically flags the

shipments deemed to be the highest risks. ATS standardizes bill of lading and entry

summary data received from ACS and creates integrated records called “shipments.”

These shipments are then evaluated and scored by ATS using weighted rules derived

from the targeting methods of experienced personnel. The higher the score, the more

attention the shipment requires, and the greater the chance it will be targeted for

secondary inspection. ATS sorts through records stored in a database containing

detailed information on every shipment that has entered the United States in the past

10 years. According to CBP, all national security related targeting using ATS is done

at CBP’s National Targeting Center (NTC). When a high risk shipment is flagged

by the NTC, this information (flag) is sent out to the field terminals so that when an

inspector at the border pulls up information on the shipment the flag is displayed and

the inspector will target the shipment for further inspection or review.

Customs inspections are dependent on accurate manifest information arriving

in a timely manner in order to execute the risk assessment and targeting procedures

before shipments reach the border. To give inspectors adequate information and time

to perform a risk assessment on cargo shipments, legacy Customs published a rule

(known as the 24-hour rule)60 requiring the submission of certain manifest

information to Customs 24-hours in advance of the vessel cargo being laden at the

foreign port. The Trade Act of 2002 (P.L. 107-210), as amended by the Maritime

Transportation Security Act of 2002 (P.L. 107-295), required CBP to develop rules

requiring the electronic submission of cargo manifest data. These new rules were

published in their final version December 5, 2003.61 The new advanced electronic

manifest rules will require the electronic submission of cargo manifest data according

to the following time frames:

Vessel — 24 hours prior to lading in the foreign port;

Air — ‘wheels up’ or four hours prior to departure for the United

States (depending upon where the flight originated);

Rail — two hours prior to arrival in the United States;

Truck — one hour prior to arrival for shipments entered through

PAPS or ABI, and 30 minutes prior to arrival for shipments entered

through FAST.

While the enforcement of these regulations is currently rolling out in phases, the

intent is that every advance manifest will be run through the ATS at the NTC before

each shipment reaches a U.S. port of entry.

(...continued)

Ports of Entry, (Washington, July 2002), p. 41.

U.S. Department of the Treasury, “Presentation of Vessel Cargo Declaration to Customs

Before Cargo is Laden Aboard Vessel at Foreign Port for Transport to the United States,”

Federal Register, vol. 67, no. 211, Oct. 31, 2002, pp. 66318-66333.

Department of Homeland Security, Bureau of Customs and Border Protection, “Required

Advance Presentation of Cargo Information; Proposed Rule,” Federal Register, vol. 68, no.

234, Dec. 5, 2003, pp. 68140-68177.

CRS-18

Modal Differences. While the commercial import process is relatively

uniform in terms of documentary requirements, differences in the level of automation

in the AMS system lead to differences across the modes of transportation depending

upon whether the shipment is arriving by truck, railcar or by vessel. As mentioned

above, the air, sea, and rail AMS modules are well automated, and thus targeting and

commercial processing has been conducted electronically through the process

outlined above.

Truck cargo entry is the least automated of all the modes and many truck drivers

must present CBP inspectors at the border with paper entry documents as they arrive

at the inspection booths. The CBP inspector reviews these documents, questions the

driver, and decides whether or not to direct the truck to secondary inspection. The

CBP inspector will collect any owed duties and release the cargo into the United

States if he is satisfied with the documentation.

ABI is functional at the land border for truck entry, and thus importers or

customs brokers can electronically pre-file entry documentation for truck shipments.

Because there is no truck AMS module, however, most truck carriers do not file

manifest information electronically. Automated line release programs do exist at the

northern and southern borders. For example, the Border Release Advanced

Selectivity System (BRASS) allows drivers to present a pre-assigned bar code, along

with the invoice and manifest. The CBP inspector scans the bar code, verifies that

the information matches the invoice data, enters the quantity and releases the cargo.

The release data is then submitted to ACS which establishes an entry and the entry

summary requirements, and notifies the ABI participant of the release.

As part of the Customs-Trade Partnership Against Terrorism (C-TPAT, which

is discussed later in this report) and Canada’s Partners in Protection programs, the

United States and Canada launched a bilateral initiative known as Free and Secure

Trade (FAST) to establish complimentary import/export processes. Under FAST,

both countries are working to harmonize their inspection and commercial operations

at the border. Expanding upon earlier initiatives that allow for the electronic

submission of entry documents and, thus, result in expedited cargo releases, the

FAST program allows major importers and their carriers to use dedicated inspection

lanes. The electronic cargo release system currently employed as part of FAST is the

National Customs Automated Prototype (NCAP). As a module of the ACS, the Pre

Arrival Processing System (PAPS) has been developed to replace NCAP and was

brought online in FY2003. PAPS interacts with the Border Cargo Selectivity

program and the ATS to randomly select cargoes for examination to check for

compliance.

The security of cargo containers loaded onto U.S.-bound vessels has been of

significant concern.62 To begin addressing this concern, the Container Security

Initiative (CSI) was initiated by the former U.S. Customs Service in January of 2002

to “prevent global containerized cargo from being exploited by terrorists.” CSI is one

of a series of initiatives aimed at securing the supply chain. The rationale behind CSI

For more information see CRS Report RL31733, Port and Maritime Security:

Background and Issues for Congress, by John F. Frittelli.

CRS-19

is that finding a nuclear weapon or a radiological “dirty bomb” at a U.S. port could

be too late. CSI is based around four core elements: developing criteria to identify

high-risk containers; pre-screening high-risk containers at the earliest possible point

in the supply chain; using technology to pre-screen high risk containers quickly; and

developing and using smart and secure containers. Under the CSI program, CBP

officers are sent to participating ports where they collaborate with host country

customs officers to identify and pre-screen high-risk containers using non-intrusive

inspection technology before the containers are laden on U.S. bound ships. CBP has

initially targeted CSI on the top 20 high-volume ports that account for nearly 70% of

all containers shipped to U.S. seaports. As of September 2003, governments

representing 19 of these 20 ports had signed agreements to implement CSI; and CSI

had actually been implemented in 16.63

Physical Inspection of Cargo. Cargo shipments may be targeted or

randomly selected for a secondary inspection for both security and trade compliance

purposes. This secondary inspection could involve: a more detailed document

check; passing the container through a radiation portal monitor; taking an x-ray or

gamma ray image of the contents of the container; and/or the physical unloading and

examination of the cargo itself.64

CBP has deployed a number of non-intrusive inspection (NII) technologies at

ports of entry to assist customs inspectors with the inspection of cargos. Large scale

NII technologies include a number of x-ray and gamma ray systems. The Vehicle

and Cargo Inspection Systems (VACIS), which uses gamma rays to produce an

image of the contents of a container for review by the CBP inspector, can be

deployed in a mobile or stationary capacity depending upon the needs of the port.

CBP has also deployed a rail VACIS system to screen railcars. Other large scale NII

systems include truck x-ray systems, which like the VACIS can be deployed in either

a stationary or mobile configuration; the Mobile Sea Container Examinations

Systems; and the Pallet Gamma Ray System. CBP is also continuing to deploy

nuclear and radiological detection equipment including personal radiation detectors,

radiation portal monitors, and radiation isotope identifiers to ports of entry.

According to recent CBP figures, in FY2003, NII technology was used at ports of

entry to conduct more than 4.8 million examinations, which resulted in 2,190

seizures totaling more than 1.1 million pounds of narcotics.65

Various canine teams are also deployed at ports of entry to assist in the

inspection of cargo and passengers. CBP uses canine teams trained to detect several

types of contraband including narcotics, explosives, chemicals, and currency.

Remarks of Commissioner Robert C. Bonner, Customs and Border Protection, made at the

Heritage Foundation, Sept. 9, 2003, [http://cbp.gov/xp/cgov/newsroom/commissioner/

speeches_statements/sept092003.xml].

Testimony of Stephen E. Flynn, Council on Foreign Relations, House Hearing on A

Review to Assess Progress with the Bureau of Customs and Border Protection’s Targeting

Program for Sea Cargo, Subcommittee on Oversight, Investigations, Committee on Energy

and Commerce, Mar. 31, 2004.

Customs and Border Protection, Performance and Annual Report Fiscal Year 2003

(Washington, 2003), p.20

CRS-20

Passenger Targeting and Inspection. Customs passenger inspection is

concerned with collecting duties on imported items brought into the country along

with preventing the entry of contraband. A typical Customs primary inspection

consists of an interview in which individuals may be asked about their citizenship,

their trip, and about any goods they may be bringing into the country that they did not

have when they departed. Individuals entering the United States via land border

crossing are required to make a verbal declaration. Individuals arriving in the United

States by air or sea are required to fill out a Customs declaration form. These forms

are usually provided by the airline or the cruise ship. The Customs declaration form

requires individuals to provide certain personal information (e.g., name, date of birth,

place and country of residence, passport information) and information about the

nature of the trip (countries visited, airline or cruise ship information, nature of the

trip: business or pleasure). The Customs declaration form also requires information

concerning goods an individual is bringing into the country. Duty may be assessed

on the value of goods exceeding personal exemption limits. The primary inspection

for individuals arriving by air or sea will include a review of the Customs declaration

as a part of the interview process. Based upon the results of the primary inspection,

some individuals may be referred to secondary inspection.

Customs inspections are based upon a number of factors (e.g., behavioral

analysis, observational techniques, inconsistencies, intelligence information, canine

units, x-ray machines, and incidence of a seizure or arrest) to determine which

individuals should be targeted for more intensive scrutiny.66 The secondary

inspection could involve a more thorough interview and review of identification and

travel documents, baggage inspections, and under prescribed circumstances personal

searches.

Customs inspection currently relies on the Advance Passenger Information

System (APIS) to screen passenger and crewmember lists prior to their arrival in or

departure from the U.S, if they are arriving by air or sea. At the land border, where

Customs inspections do not have advance passenger information, CBP has deployed

license plate readers to assist them in targeting vehicles and their passengers for

additional inspection.67 For example, when a passenger vehicle approaches a land

border port of entry, license plate readers automatically locate, read and communicate

vehicle license plate data to the Treasury Enforcement Communication System

(TECS) and the National Crime Information Center (NCIC) for possible record

matches.68 The primary inspectors at the port of entry receive instantaneous

responses from TECS. As of September 2003, CBP had installed 201 inbound and

U.S. Treasury Department, Office of Inspector General, Trade and Passenger Processing:

Customs Personal Search Policies, Procedures, and Training Appear Reasonable, OIG-CA02-003, Apr. 12, 2002, pp. 7-8.

Customs and Border Protection, Performance and Annual Report Fiscal Year 2003

(Washington, 2003), p.32.

Ibid., p. 33.

CRS-21

50 outbound license plate readers on the southern border; and 104 inbound license

plate readers on the northern border.69

Smuggling. The primary mission of CBP is to prevent terrorists and terrorist

weapons from entering the country. However, other components of CBP’s mission

include interdicting other prohibited items such as illegal drugs, ammunition,

firearms, and counterfeit goods; and monitoring trade compliance. Theoretically,

every person or conveyance crossing the border presents an opportunity for

smuggling. The statistics in Appendix C illustrate the aggregate size of the so-called

“smuggling window of opportunity.” Appendix D provides data on Customs

narcotics seizures from FY1997-FY2002. In addition, during FY2002 Customs

officers made 12,570 arrests, and seized 6.4 million rounds of ammunition, nearly 40

thousand firearms, 7.5 million tablets of the drug “ecstasy,” over $1.3 million worth

of merchandise, and more than $60 million in counterfeit goods.

Differences Between the Northern and Southern Border. Operational

differences between Customs inspections on the northern and southern borders arise

due to several factors. One is simply the nature of the cross-border traffic that

predominates at ports of entry along each border. The ports of entry on the southern

border must deal with a significantly greater amount of pedestrian and personal

vehicle traffic than the northern border; while the northern border contends with

considerably more commercial traffic than does the southern border. Appendices

E and F in this report illustrate these differences. For example, the total number of

personally operated vehicles entering the United States crossing the southern and

northern borders for Calendar Year (CY) 2002 was nearly 122.3 million. Of this

total 89.8 million, or 73% entered across the southern border, while 32.5 million or

27% entered across the northern border. Of the 11.3 million freight truck crossings

in CY2002, 6.9 million or 61% entered across the northern border, while 4.4 million,

or 39% entered across the southern border. Of the 2.4 million rail freight crossings,

1.8 million or 75% entered across the northern border.

Operational differences at the northern and southern borders are also caused by

different levels of progress that have been made on the bilateral agreements between

the United States and Canada and the United States and Mexico. October 2, 2003,

a progress report was issued on the United States-Canada Smart Border Declaration

(signed December 12, 2001). FAST is a joint program for low-risk companies that

allows for the expedited movement of shipments across the northern border in both

directions. The United States-Canada Smart Border Declaration also includes other

efforts to harmonize commercial processing, conduct clearance operations away from

the border, develop joint facilities, share customs data, improve container targeting

at seaports, address infrastructure improvements, and develop intelligent

transportation systems, among others.

On March 22, 2002 President Bush and President Fox of Mexico met and

endorsed the United States-Mexico Border Partnership accord that was signed by

Santiago Creel, Secretary of Governance, and Colin Powell, Secretary of State. The

accord was accompanied by a 22-point action plan that included several customs-

Ibid.

CRS-22

related items similar to those contained in the United States-Canada Smart Border

Declaration. On April 23, 2003, the Department of Homeland Security issued a joint

statement on progress achieved on the United States-Mexico Border Partnership.70

Three working groups have been created to develop and implement initiatives

identified in the 22-point plan: the Border Working Group, the Enforcement

Working Group, and the Technology and Customs Procedures Working Group.

Another indicator of progress in cooperation is that as of September 2003, FAST has

become operational at one commercial crossing along the southern border (El Paso).

Animal and Plant Health Inspections

Primary Purpose. Animal and plant health inspection contributes to national

security by preventing the entry of exotic plant and animal pests and diseases. Such

pests and diseases pose a potential threat to domestic agricultural production,

particularly in the fruit, vegetable and livestock sectors. Traditionally, these

inspections have dealt with all possible threats, regardless of whether they are

deliberately or accidentally introduced. Since September 11, 2001, and the anthrax

incidents, more attention has been given to preventing entry of agricultural pests and

diseases that might be used as bioterrorism or agroterrorism agents against U.S.

agricultural and natural resources.

Agricultural inspection occurs at U.S. borders, ports of entry, inland sites, and

off-shore locations. Inspections cover passengers arriving by vehicle, airplane, and

ship, cargo and international mail, and commercial aircraft, vessels, trucks, and

railcars. Inspection methods include human sensory examination, X-ray, and detector

dog inspection, along with examination of documents accompanying incoming cargo

to assure compliance with health and trade agreements. Some agricultural items may

be allowed to enter from certain countries but not others. These determinations are

based on scientific risk assessments which are updated regularly using currently

available information.

Forbidden fruits and vegetables may harbor a range of invasive plant diseases

and pests. For example, oranges from certain foreign locations can introduce

diseases like citrus canker or pests like the Mediterranean fruit fly. Similarly,

sausages and other meat products from many countries can contain animal disease

organisms that can live for many months and even survive processing. Meat scraps

from meals on foreign ships and airplanes could contaminate domestic livestock feed

sources if not properly disposed of. Foot and mouth disease (FMD), a debilitating

livestock disease, can be transmitted on footwear or clothing if passengers passed

through FMD-affected areas. Outbreaks of plant and animal diseases can cost

millions of dollars to eradicate, jeopardize U.S. agricultural exports, disrupt domestic

food supplies and industries, and erode public confidence in both the safety of food

and the government’s ability to safeguard it.

The transfer of approximately 2,680 APHIS inspectors to CBP accounts for

about two-thirds of the Agricultural Quarantine Inspection (AQI) program’s

U.S. Department of Homeland Security, U.S.-Mexico Border Partnership Joint Statement

on Progress Achieved, [http://www.dhs.gov/dhspublic/display?content=570].

CRS-23

personnel, and one-third of APHIS’ total staffing. DHS personnel inspect

international arrivals of passengers and their baggage, imported cargo and

international package mail, and international conveyances. While combining

agricultural inspections with other border security activities can increase the number

of inspectors who can monitor the border for prohibited agricultural products, it

requires diligence to maintain adequate agricultural inspections in light of more

general customs and immigration concerns.

Inspection Procedures. As with other inspection functions by former

Customs and INS personnel, animal and plant health inspectors use a “smart border”

or risk assessment approach to identify which people or containers to inspect.

Intelligence based on documents and advance notice frequently can add security away

from the United States and make the actual border more fluid for legitimate trade and

immigration.

Passenger Inspection. The passenger inspection program utilizes a uniform

inspection process at land, sea, and air ports of entry. Passenger baggage is inspected

on a random basis, and also from information that passengers provide on declaration

forms. Inspectors also speak with travelers at primary inspection stations to ascertain

where they have come from and what agricultural and food products they may be

carrying. Based on the point of departure, inspectors judge whether passengers are

more likely to be carrying, for example, prohibited fruit, spices, cheese, or meat. All

agricultural products are subject to inspection and are confiscated if they are found

to be infested or are prohibited entry due to known pest and disease risks.

To focus attention on the highest risk passengers, agricultural inspections are

coordinated with other inspection functions, either physically or through intelligence

sharing. Before DHS was created, APHIS cooperated with other inspectors through

the Border Passenger Processing Initiative. The majority of passengers cleared

through the system without delay. APHIS, Customs, INS, and the State Department

examined passenger lists and checked them against past violators and other data to

determine the most effective targets for inspection. Inspector dog teams (commonly

known as the “beagle brigade”) roam the baggage arrival areas and can effectively

determine the presence of agricultural products without opening individual bags.

APHIS also uses x-ray technology to quickly screen certain targeted baggage.

Pre-clearance of passengers is sometimes more feasible than inspection at ports

of entry. Passenger pre-clearance responsibilities were not transferred to DHS.

Passengers departing Hawaii and Puerto Rico for the mainland pass through an

APHIS pre-departure inspection. Even though part of the United States with respect

to immigration and customs, these offshore locations could present agricultural

threats to the mainland. APHIS also operates passenger pre-clearance programs in

Bermuda, the Bahamas, Aruba, and at four cities in Canada (Montreal, Toronto,

Vancouver, and Calgary). U.S. inspectors pre-clear passengers passing through

Canada on their way to the United States, since Canadian passengers typically would

not face the same level of agricultural inspection at U.S. ports of entry. A preclearance program for military passengers expedites the arrival of soldiers returning

from countries that have pests that could harm domestic agriculture.

CRS-24

Cargo Inspection. Cargo shipments are targeted for efficient inspections

based on manifest descriptions of the containers. This assessment occurs at ports of

entry and, more commonly, at departure ports. Notification while in transit,

especially for ships, allows inspectors to target certain shipments upon arrival at port.

Inspectors board ships, planes, rail cars, and trucks in order to thoroughly

inspect shipments. In some cases, products are off-loaded at secure warehouses for

a more thorough “strip-out” inspection. In addition to inspecting agricultural

products, inspectors also examine shipments of auto parts or other products arriving

in crates or pallets containing solid wood packing material that could contain harmful

wood-boring pests. USDA personnel also typically oversee, and sometimes carry

out, any necessary fumigation of agricultural cargo at ports of entry.

In addition to visual, x-ray, and detector dog inspection, APHIS is adapting new

technologies for finding biological agents in cargo shipments. The Ruggedized

Advanced Pathogen Identification Device (RAPID) is a handheld instrument that can

identify pathogens in the field within 30 minutes instead of up to several days in the

laboratory. RAPID is currently being tested for possible use at ports of entry.

Pre-clearance of cargo adds to the security of agricultural inspections and

reduces the demand on inspectors at the borders. Commodity pre-clearance activities

were not transferred to DHS. Often it is more practical and effective to check and

monitor commodities for pests or diseases at the source. The goal is to intercept

destructive pests in their native lands before being transported to the United States.

APHIS has special arrangements with a number of countries and has a corps of

experts stationed overseas to supplement domestic inspectors. APHIS conducts 35

commodity pre-clearance programs overseas including, for example, mangoes from

Mexico, blueberries from Argentina, bulbs from the Netherlands, and grapes from

Chile. Many of the programs are seasonal. Importers pay for pre-clearance through

user fees.

Some agricultural commodities require inspection only prior to departure for the

United States. Pre-cleared commodities are less likely to require intensive

inspections at the port of entry, although they may be subject to random inspection

and/or checks to ensure compliance with any other mitigating steps that were

required to take place between the time of the pre-clearance inspection and arrival at

the port of entry. Other commodities, however, require treatment before they can be

cleared for entry. The most common types of pre-clearance treatments include hot

water immersion, cold treatment, and fumigation.

In addition to traditional cargo, food and garbage from international flights and

cruises can carry pests and diseases that could harm U.S. agriculture. All

international trash must be handled and disposed of according to APHIS regulations.

Inspectors regularly examine international modes of conveyance and consult with

airlines, cruise lines, ship and rail companies to ensure that trash is being properly

handled and discarded. Problems identified during these inspections can lead to

citations for violations.

Smuggling and Trade Compliance. A Smuggling Interdiction and Trade

Compliance staff (about 120 people) is part of APHIS’ port operations presence.

CRS-25

This team monitors pathways through which prohibited products can enter the United

States and cooperates with law enforcement officials to conduct unannounced

inspections “blitzes” at markets, warehouses, and ports of entry. They seize

prohibited items and help prosecute smugglers. In FY2002, the staff seized 6,000

kilograms of prohibited plant products and 9,000 kilograms of prohibited animal

products.

Difference Between Northern and Southern Borders. Agricultural

inspections are generally uniform at the land border crossings with Canada and

Mexico. Many of the pests and diseases of concern to agriculture have potential

pathways into the United States through both the northern and southern borders. For

example, while Canada cannot grow citrus in its colder climate, it does allow imports

of tropical fruit from countries with known fruit fly populations, and thus is of

concern to U.S. agriculture.

Other pests and diseases vary between Canada and Mexico and necessitate

different procedures. For example, live cattle being imported from Mexico are

dipped in an insecticide bath prior to entry into the United States to prevent entry of

exotic ticks. At the northern border, imports of cattle and beef products currently are

prohibited due to BSE (mad cow disease) restrictions. These differences, however,

are based on risk assessments of pest and disease differentials rather than the inherent

location of the border. Similar differences in inspections or prohibitions apply to

cargo and passengers arriving from various international locations.

Related Policies and Procedures

While the focus of this report is border inspections, there are a few related

policies and procedures that warrant discussion because they are integral to the CBP

inspections process. The Transportation Security Administration (TSA) has

responsibility for aviation security. The USDA retains a key policy role in plant and

animal inspections. The Department of State’s (DOS) Bureau of Consular Affairs

issues the visas that enable foreign nationals to enter the United States. The

Department of Health and Human Services (HHS) sets the policies on screening

travelers for communicable diseases. There are important Customs initiatives that

aim to streamline inspections by securing the cargo and supply chain. These related

policies and procedures are briefly discussed below.71

Aviation Security. Among its many homeland security responsibilities, TSA

is the lead agency for airport security, air cargo security, baggage screening and

passenger pre-screening — duties that extend well beyond the international air ports

of entry. Established by legislation passed two months after the September 11, 2001

terrorist attacks, TSA is now located in BTS alongside CBP. TSA officials state that

their first priority is to protect air travelers, and to do so they have set into place a

The U.S. Coast Guard plays a major homeland security role as the lead agency for port,

waterway and coastal security and for alien migrant interdiction on the high seas. See CRS

Report RS21125, Homeland Security: Coast Guard Operations — Background and Issues

for Congress, by Ronald O’Rourke; and CRS Report RL31733, Port and Maritime Security:

Background and Issues for Congress, by (name redacted).

CRS-26

system of reinforcing rings of security to mitigate the risk of future terrorist or

criminal acts. These security measures cover air traffic from curbside to cockpit,

supported overall by intelligence and threat analysis.72

TSA relies on the Computer Aided Passenger Pre-Screening (CAPPS) system

as a threat assessment tool for airline passengers. Since 1996, CAPPS analyzes data

on ticket purchasing behavior to identify air travelers who may pose a threat. The

implementation of the second generation, CAPPS II, is caught up in privacy

protection and civil liberty concerns. In terms of air cargo, TSA reportedly is

designing a random, threat-based, risk-managed freight screening process and

continues to develop an automated and enhanced “known” shipper program. TSA

estimates that 2.8 million tons of cargo transported per year is now secured on

passenger planes and 9.7 million tons on cargo planes.73

Agencies Conducting Agricultural Inspections. The Agricultural

Quarantine Inspection (AQI) program of the USDA Animal and Plant Health

Inspection Service (APHIS) is considered the most significant and prominent of

agricultural and food inspections. Because of this prominence, AQI was one of the

many programs selected for inclusion when the Department of Homeland Security

was created. A legislative compromise during deliberations on the legislation

creating the new department transferred only the border inspection function of

APHIS, leaving other activities at USDA as described below.

Even though the border inspection function of APHIS has moved to DHS,

USDA-APHIS retains a significant presence in border inspection activities. The

nearly 1,300 AQI employees who were not transferred continue to conduct certain

domestic inspection functions, such as monitoring entry to the mainland from Hawaii

and Puerto Rico. They continue to set agricultural inspection policies to be carried

out by DHS border inspectors, including determining what agricultural products are

allowed to enter the United States and what items are to be denied entry. APHIS

provides training to DHS inspectors regarding agricultural inspections, manages the

data collected during the inspections process, and monitors smuggling and trade

compliance. APHIS also continues to pre-clear certain commodities, inspect all

imported propagative material, monitor animals in quarantine, and conduct certain

other port activities such as fumigations. To assure that necessary agricultural

inspections are conducted, APHIS negotiates memoranda of understanding (MOUs)

with DHS.

Separating duties this way is intended to allow a consolidated border inspection

function with customs and immigration personnel for intelligence and security goals,

but preserves USDA’s expertise and historical mission to set agricultural import

policies to protect American agriculture.

For a complete discussion, see CRS Report RL31969, Aviation Security: Issues Before

Congress Since September 11, 2001, by Bartholomew Elias.

For background and analysis, see CRS Report RL32022, Air Cargo Security, by

Bartholomew Elias.

CRS-27

While APHIS is responsible for protecting the health of U.S. agriculture, other

agencies such as the USDA Food Safety and Inspection Service (FSIS) and HHS’

Food and Drug Administration (FDA) focus on protecting public health. At ports of

entry, FSIS and FDA personnel inspect shipments of food and food products

imported into the United States from abroad to ensure that the food and related

products meet U.S. standards and do not present any risk to public health. As an

example, AQI personnel may inspect a shipment of sausage casings to ensure that the

shipment does not pose any animal health risk, while FSIS personnel may inspect the

same shipment to ensure that the product was prepared in an approved processing

facility. The Department of Interior Fish and Wildlife Service (FWS) inspects

international cargo, baggage, passengers, and mail to enforce U.S. and international

laws regarding trade in endangered and protected species. This report is limited,

however, to agricultural inspections conducted by DHS and the continuing role of

USDA-APHIS.

Visa Procedures. Foreign nationals not already legally residing in the United

States who wish to come to the United States generally must obtain a visa to be

admitted.74 There are two broad classes of aliens that are issued visas: immigrants

and nonimmigrants.75 The Department of State’s Bureau of Consular Affairs

(Consular Affairs) is the agency responsible for issuing visas. DHS is responsible

for formulating regulations on visa issuances and may assign staff to consular posts

abroad to advise, review, and conduct investigations.76 DHS’s United States Bureau

of Citizenship and Immigration Services (USCIS) is charged with approving

immigrant petitions, a prerequisite for obtaining a visa to become a legal permanent

resident.77 The documentary requirements for visas are stated in §222 of the INA,

with some discretion for further specifications or exceptions by regulation, most

notably the Visa Waiver Program.78

All aliens seeking visas — prospective immigrants and nonimmigrants — must

undergo admissibility reviews performed by DOS consular officers abroad.79 These

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 the Immigration and

Nationality Act (INA) and the specific authority of the Visa Waiver Program in §217 of

INA, which are discussed later in this memorandum.

For background and analysis of visa issuance policy and activities, see CRS Report

RL31512, Visa Issuances: Policy, Issues, and Legislation, by (name redacted).

For more on the division of duties, see CRS Report RL32256, Visa Policy: Roles of the

Departments of State and Homeland Security, by (name redacted).

The memorandum of understanding (MOU) that implements the working relationship

between DOS and DHS’s three immigration-related bureaus was signed Sept. 29, 2003.

For a discussion of these waivers and the countries whose nationals do not need visas, see

Congressional Distribution Memorandum, Waiving the Documentary Requirements for

Visas and Passports to Enter the United States, by (name redacted) and (name redacted),

Oct. 27, 2003; and CRS Report RL32221, Visa Waiver Program, by (name redacted).

These grounds for inadmissibility are spelled out in §212(a) of INA. Consular officers use

the Consular Consolidated Database (CCD) to screen visa applicants. For some years,

(continued...)

CRS-28

reviews are intended to ensure that they are not ineligible for visas or admission

under the grounds for inadmissibility, which include criminal, national security,

health, and indigence grounds as well as past violations of immigration law. As a

result, all aliens arriving with visas have had background checks. For the past several

years, moreover, Consular Affairs has been issuing machine-readable visas. By

October 2004, all visas issued by the United States must use biometric identifiers

(e.g., finger scans) in addition to the photograph that has been collected for some

time.80

Protection Against Communicable Diseases. The Centers for Disease

Control (CDC) in HHS take the lead in protection against communicable diseases at

the border.81 A medical examination is required of all aliens seeking to come as legal

permanent residents (LPRs) and refugees, and may be required of any alien seeking

a nonimmigrant visa or admission at the port of entry. As noted earlier, an

immigration inspection includes a determination of whether the alien is inadmissible

due to a health-related condition. The diseases that trigger inadmissibility in the INA

are acquired immune deficiency syndrome (AIDS) and those communicable diseases

of public health significance as determined by the Secretary of HHS. Those diseases

currently barred by regulation are: cholera, diphtheria, infectious tuberculosis,

plague, smallpox, yellow fever, viral hemorrhagic fevers (Lassa, Marburg, Ebola,

Crimean-congo, South American, and others not yet isolated or named), and severe

acute respiratory syndrome (SARS). Aliens are also required to have vaccinations

against vaccine-preventable diseases, including mumps, measles, rubella, polio,

tetanus, diphtheria, pertussis, influenza type B and hepatitis B.82

CDC officials are not present at the border on a day-to-day basis, but there are

quarantine stations located in the international airports in New York, Chicago,

Miami, Atlanta, Los Angeles, San Francisco, Seattle, and Honolulu. The CDC,

through their Division of Global Migration and Quarantine, train CBP inspectors to

watch for ill persons and items of public health concern, and they work with state and

local health officials in jurisdictions that may be affected under particular

circumstances. They have been available at the border during immigration

emergencies and other periods when public health may be threatened.83

(...continued)

consular officers have been required to check the background of all aliens in the “lookout”

databases, specifically the Consular Lookout and Support System (CLASS) and TIPOFF

databases. Consular officers also send suspect names to the FBI for a name check program

called Visa Condor.

PL. 107-56 and P.L. 107-173 require that visas and other travel documents contain a

biometric identifier and are tamper-resistant.

Their statutory authorities can be found at 8 U.S.C. §1182; 8U.S.C. §1222; 42U.S.C.

§264-§272; and 42U.S.C. §252.

See CRS Report RL31719, An Overview of the U.S. Public Health System in the Context

of Bioterrorism, by (name redacted) and Sarah Lister.

For more information on CDC and their the Division of Global Migration and Quarantine,

see [http://www.cdc.gov/ncidod/dq/mission.htm].

CRS-29

Cargo and Supply Chain Security. In order to maximize its inspection

resources, CBP has launched several initiatives focusing on enhancing the targeting

of high-risk shipments, and securing the entire supply chain from point of origin to

final destination. One of these initiatives is the Customs-Trade Partnership Against

Terrorism (C-TPAT).

Initiated in April 2002, C-TPAT offers importers expedited processing of cargo

if they comply with CBP requirements for securing their entire supply chain. In order

to participate in the C-TPAT, businesses must sign an agreement that commits them

to the following actions: conduct a comprehensive self-assessment of supply chain

security using the C-TPAT security guidelines jointly developed by CBP and the

trade community; submit a supply chain security profile questionnaire to CBP;

develop and implement a program to enhance security throughout the supply chain

in accordance with C-TPAT guidelines; communicate C-TPAT guidelines to other

companies in the supply chain; and work toward building the guidelines into

relationships with these companies.

Border Inspection Trends

by Ports and Modes of Entry

Border inspections conducted each year number in the hundreds of millions. As

Figure 1 depicts, the number of passenger inspections peaked in FY2000. Since

immigration and customs inspectors were cross-designated, it appears that an

unknown number of passengers were enumerated in the data of both INS and

Customs. Prior to the establishment of CBP, immigration inspectors did most

passenger inspections, followed by customs inspectors. Agricultural inspections

were a distant third, but APHIS still completed 44 million animal and plant

inspections of passengers in FY2002. Unlike customs and immigration inspections

data, APHIS data enumerate only those passengers referred to secondary inspections

for the purpose of an agricultural inspection. In FY2003, CBP reported that they

inspected 412.8 million passengers.

Analyses of workload trends prior to the establishment of DHS follow for each

major type of inspection — immigration, customs, and agricultural inspections.

Unless otherwise noted, the data analyses are based on data provided by the “legacy”

agencies of the U.S. Immigration and Naturalization Service (INS), U.S. Customs

Service and U.S. Department of Agriculture (USDA).

CRS-30

Figure 1. Passenger Inspections, FY1998-FY2002

600

Millions

500

400

300

200

100

1998

1999

APHIS

2000

2001

Customs

Immigration

2002

Source: CRS analyses of DHS unpublished data from "legacy" agencies.

Immigration Inspections Data

In FY2000, 534 million travelers were inspected at U.S. ports of entry, a peak

year for immigration inspections. The number declined following the September 11,

2001 terrorist attacks, reducing the FY2001 total to 511 million and the FY2002 total

to 448 million (Figure 1). The number of travelers referred to secondary inspections

began to rise in FY2000, peaking at over 10 million in FY2002 (Figure 2). As

Figure 2 indicates, however, the number of persons denied entry has held steady

from FY1998 to FY2002, during which an average of less than 1% of all travelers

(and about 10% of all people referred to secondary) were denied entry.

CRS-31

Figure 2. Immigration Inspections: Secondary Referrals and Denials

Millions

1998

1999

2000

Denied Entry

2001

2002

Secondary

Source: CRS analysis of INS workload data.

Although the primary mode of travel into the United States is through land ports

of entry, air and sea ports of entry have their share of travelers seeking entry into the

country. Collectively, land ports of entry in Texas and California led all other states

with respect to the number of travelers inspected (Figure 3). With respect to air

ports of entry, New York, Miami and Los Angeles International Airports accounted

for 32% of all inspections in FY2002 (Figure 4). Sea ports of entry account for the

smallest percentage of travelers seeking entry into the United States.

Land Ports of Entry. The majority of travelers (approximately 80%) enter

the United States at a land port of entry. Land ports of entry are often referred to

based on their geographic proximity to the northern or southwest border. Over the

years, the southwest border has seen the highest volume of travelers seeking entry

into the United States, as Figure 3 illustrates. Three southwest ports of entry made

up five of the busiest ports of entry between FY1998 and FY2002. Those southwest

ports of entry — located in Texas, California and Arizona — accounted for over 70%

of all inspections at the five busiest land ports of entry in FY2002.

CRS-32

Figure 3. Top Five Busiest Land Ports of Entry by State

500

Millions

400

New York

Arizona

Michigan

California

Texas

300

200

100

1998

1999

2000

2001

2002

Source: CRS analysis of INS workload data.

CBP inspectors at land ports of entry must be cognizant of individuals

attempting to smuggle illegal aliens into the country.84 In FY2002, a little over

68,000 illegal aliens were caught being smuggled into the United States at land ports

of entry, primarily along the southwest border.85

Air Ports of Entry. In FY2002 air ports of entry accounted for 15% of

travelers who sought entry to the United States. Although the number of persons

seeking entry at air ports of entry is relatively small in comparison to land ports of

entry, the inspection process can be more complicated due to the diverse population

seeking admission to the United States. As Figure 4 illustrates, California’s airports

had the largest volume of immigration inspections, from FY1998 to FY2002,

followed closely by Florida and New York. Texas held steady at fourth place with

Illinois and New Jersey competing for fifth place.

In addition to human trafficking, land borders and ports of entry are also the preferred

venue for smuggling in drugs and contrabands into the United States.

CRS examination of INS PAS data.

CRS-33

Figure 4. Top Five Busiest Immigration Airports of Entry by State

Millions

New Jersey

Illinois

Texas

New York

Florida

California

1998

1999

2000

2001

2002

Source: CRS analysis of INS workload data.

Prior to passage of IIRIRA, which mandated the DOJ to develop an automated

entry and exit data system to replace the manual system,86 immigration inspectors at

air ports of entry have long collected the I-94 form from aliens. The I-94 form is

usually given to aliens while in transit to the United States and contains information

such as the alien’s identification and an address where the alien will be staying while

in the United States. After reviewing the alien’s travel document and interviewing

the alien, the immigration inspector determines how long the alien can stay in the

United States. The length of stay and immigration classification, both determined by

the immigration inspector, is evident on a completed I-94 form. The information on

the I-94 form is later put into the Non-Immigrant Information System (NIIS).87

Although the I-94 form is routinely collected at air ports of entry, reportedly it is

rarely collected upon exit. At this point it is not clear how the implementation of USVISIT will affect NIIS and the use of the I-94 forms.

Sea Ports of Entry. Immigration statistics for sea ports of entry are separated

into two categories: seaports and cruise ships. The two categories are further divided

to reflect the number of U.S. citizens, aliens and crew personnel that were inspected.

The majority of vessels are passenger cruise ships, mainly consisting of U.S. citizens.

Similar to aliens entering the United States at an air port of entry, aliens who seek

entry at a seaport must submit an I-94 form prior to arrival at a sea port of entry. In

FY2002, inspections at seaports and on cruise ships accounted for less than 1% of all

§110 of P.L. 104-208.

NIIS is a mainframe system that stores arrival and departure information for nonimmigrants that is captured on the I-94 form.

CRS-34

travelers seeking entry into the United States. Florida consistently ranks as the state

with the largest volume of immigration inspections at seaports.

Figure 5. Top Five Busiest Sea Ports of Entry by State

Millions

Texas

Maine

Louisiana

New York

California

Florida

1998

1999

2000

2001

2002

Source: CRS analysis of INS workload data. Puerto Rico led the continental United States

for number of persons inspected at sea ports of entry in FY1999, FY2001 and FY2002

Inspection of Alien Crew Members. Alien crew members are inspected

at air ports of entry usually at a separate location from the general public. According

to INS Inspector’s Field Manual, “at air ports of entry it is the general practice to

expedite the admission of arriving crewmen.” With respect to sea ports of entry,

alien crew members arriving on vessels, like alien passengers, must submit an I-94

form prior to arrival at a sea port of entry.

Cargo Inspections Data

In FY2002, customs inspectors processed the importation of cargo valued at

$1,183 billion, with most of the cargo (11.2 million conveyances) arriving by truck.

Railcars (2.4 million conveyances in FY2002) were the second most used

conveyance, followed by vessels (0.2 million conveyances in FY2002). Those

vessels, however, include multiple cargo containers (7.3 million in FY2002). Figure

6 illustrates the volume of cargo processed by the U.S. Customs Service for FY1998FY2002. Appendix D provides more detail on the data presented in Figure 6.

Data on the number of cargo containers physically inspected by CBP were not

available for inclusion in this report. The Commissioner of CBP, Robert Bonner,

testified that two years ago that 9% of rail containers, 2% of sea containers, and

10.3% of trucks entering the United States were inspected either intrusively or nonintrusively. According to his testimony these numbers currently stand at 22.6% of

CRS-35

rail containers, 5.2% of sea containers, and 15.1% of trucks entering the United

States. Commissioner Bonner testified that across all modes of transportation CBP

is currently inspecting approximately 12.1% of all cargo containers entering the

United States; up from approximately 7.6% two years ago.88

Figure 6. Customs Cargo Processed by Type of Conveyance

Thousands

Railcars

Aircraft

Vessels

Trucks

1998

1999

2000

2001

2002

Source: CRS analysis of data provided by CBP.

Cargo Inspections at Airports. Customs processed approximately 770,000

commercial aircraft, and approximately 210,000 private aircraft in FY2002, as noted

in Appendix D. According to data from the Airports Council International, the top

ten United State airports by volume of international cargo for FY2002 were:

Memphis (MEM), Los Angeles (LAX), Anchorage (ANC), Miami (MIA), New York

(JFK), Louisville (SDF), Chicago (ORD), Indianapolis (IND), Newark (EWR), and

Atlanta (ATL).

Cargo Inspections at Seaports. In FY2002, Customs processed 7.3

million vessel cargo containers. Appendix C provides port level data for the top 10

U.S. Container Ports from 1995-2002. In FY2002, the top 10 U.S. Container Ports

accounted for 84% of the total volume of 20-foot equivalent units (TEU’s) moving

through all U.S. seaports. Los Angeles handled the highest volume of TEU’s,

accounting for 21% of the total.

Testimony of Commissioner, Customs and Border Protection Robert C. Bonner, in U.S.

Congress, Senate Committee on Commerce, Science, and Transportation, Oversight of

Transportation Security, 108th Cong., 1st sess., Sept. 9, 2003 (Washington: Federal

Document Clearing House, Inc.), p.34.

CRS-36

Cargo Inspections at Land Ports. As discussed earlier, over 11 million

trucks carrying cargo were processed by customs inspectors. In FY2002, the busiest

land port was Detroit, Michigan, with 1.7 million trucks crossing accounting for 24%

of the truck crossings at the northern border. Laredo, Texas, was the busiest POE for

truck crossing along the southern border, with 1.4 million truck crossings. Northern

POEs overall handled more truck crossing than southern POEs, and Figure 7

illustrates the number of truck crossings at the northern and southern border for

FY2000-FY2002. Appendices F and G include data on the total number of trucks

processed by Customs for FY1997-2002.

Figure 7. Trucks Conveying Cargo, 2000-2002

Millions

Southern

Northern

2000

2001

2002

Source : CRS analysis of Bureau of Transportation Statistics data.

In FY2002 Customs processed 2.4 million railcars. As indicated by Figure 8,

which depicts railcar crossings at the northern and southern border for FY2000FY2002, most of the railcar crossing were with Canada. The data, tabulated by

Bureau of Transportation Statistics, include both loaded and unloaded railcars. For

FY2002 the top five ports accounted for 72% of total railcar crossings along the

northern border. At the southern border, the top five ports accounted for 98% of the

total crossings. Appendices F and G include data on the total number of railcars

processed by Customs for FY1997-FY2002.

CRS-37

Figure 8. Railcars Conveying Cargo, 2000-2002

2000

Thousands

Southern

Northern

1500

1000

500

2000

2001

2002

Source : CRS analysis of Bureau of Transportation Statistics data.

Animal and Plant Health Data

Inspection Statistics. APHIS collects data on the inspections process

through its Work Accomplishment Data System (WADS). Three types of statistics

are particularly important for assessing the inspections process. (1) An inspection is

a secondary level interview of a person or examination of his/her baggage based on

entrance documents, detector dog identification, or random selection at a primary

inspection station. X-ray or visual examination of baggage contents may occur. For

cargo and international mail, an inspection occurs when the shipment is opened or

x-rayed. (2) An interception is the identification of items having quarantine

significance that may be confiscated or transferred to another APHIS facility for

subsequent evaluation or treatment, depending on the cargo. (3) A violation is

counted when goods are found to be misrepresented on documents, import rules were

violated, or items were otherwise attempted to be smuggled. Ships or aircraft can

incur violations for not following certain arrival procedures or for improper handling

of garbage.

Since APHIS uses a targeted inspection approach, it may be somewhat

misleading to present a ratio of goods or people inspected from the entire pool of

international arrivals. The actual percentage of all entries inspected would appear

unusually small since only higher-risk entrants are inspected. By using intelligence

and risk assessment models, the subset of passengers or goods targeted for inspection

should have notably higher rates of interceptions and violations than the entire pool

of arrivals. Also, preclearance of certain cargo shipments removes another subset of

imports from the same need for inspection at ports of entry. Finally, because APHIS

CRS-38

tabulates cargo inspection statistics by bill of lading rather than by weight or value,

an overall ratio of goods inspected is infeasible to compute and would lack meaning.

Thus, the percentages presented below are interceptions or violations among the

subset chosen for inspection.

In general, about 2%-3% of passengers who are targeted for inspection are found

carrying items of quarantine significance (counted as interceptions). Only 1%-2%

of inspected cargo shipments are found with such items, but the figure is higher for

international mail (3%-8%). These results are in line with APHIS’ goals for the

inspection program. Interception figures are higher for certain modes of conveyance,

especially for aircraft. Nearly half of inspected aircraft have intercepted items, while

15% of inspected ships and 12% of inspected vehicles contain intercepted items.

Appendices H and I contain inspection statistics compiled by APHIS upon request

for this report.

Figure 9. Agricultural Inspections, FY1998-FY2002

Millions

International Mail

Cargo (Bill of Lading)

Pre-Cleared Passengers

Passengers

1998

1999

2000

2001

2002

Source: CRS analysis of USDA-APHIS, special tabulations of work accomplishment data.

Passengers. In FY2002, APHIS reported that 69 million maritime, land

border, and airline passengers entering the United States were subject to inspection.

Of this number, APHIS actually inspected 33.8 million passengers and made 890,000

interceptions of quarantine significance. The interception rate of 2.6% is fairly low,

because of the targeted nature of the inspections process. Nearly 13,000 inspections

resulted in violations. Both the interception rate and the violation rate have been

declining slightly since 1998.

Pre-clearance of passengers prior to departure supplements inspections at the

border. In FY2002, APHIS conducted pre-clearance inspections of over 10.5 million

CRS-39

passengers, including 1.5 million passengers departing Hawaii and Puerto Rico for

the mainland. The rate of interceptions in the pre-clearance program (about 2%) is

less than that for passenger inspections at ports of entry. This is likely due to the

selected number of departure points having pre-departure programs and their belowaverage risk profile (such as Hawaii, Puerto Rico and Canada).

Cargo and International Mail. Working with Customs to target shipments

for more efficient inspection, APHIS inspected 953,000 cargo shipments (bills of

lading) in FY2002. The number of inspections has risen by nearly a third since 1998,

although the ratio of interceptions has remained fairly constant and generally under

3%. Violations doubled between 1998 and 2002, although the ratio is very small at

one-twentieth of 1% percent.

Figure 10. Agricultural Inspections by Type of Conveyance

3500

Thousands

3000

2500

2000

1500

1000

500

1998

1999

Ships

2000

Aircraft

2001

2002

Vehicles, Buses, Rail Cars

Source: CRS analysis of USDA-APHIS, special tabulations of work accomplishment data.

Inspections of international mail for agricultural pests and diseases has remained

nearly level since 1998, with about 420,000 inspections in FY2002. The interception

and violation rates are higher than those for cargo, with 8.2% of inspected mail

packages containing items of quarantine significance in 2002. This figure, however,

is noticeably higher than in previous years and may not necessarily reflect a trend.

Ships, Aircraft, Vehicles, and Railcars. In addition to inspections of

passengers and cargo, the mode of conveyance is also subject to agricultural

inspection. In FY2002, APHIS inspected 64,000 ships, a similar number to previous

years. Fifteen percent resulted in interceptions, up from 9% in 1998, sometimes for

improper handling of garbage and waste within U.S. boundaries.

CRS-40

The number of aircraft inspected in FY2002 was 423,000, up by 12% since

1998. The rate of agricultural pest interceptions for aircraft is very high compared

to other types of agricultural inspection. In FY2002, nearly half of inspected aircraft

were found with items of quarantine significance, although this incidence has fallen

steadily from 91% in 1998. As with the statistics for ships, improper handling of

garbage originating from a foreign source that could harbor forbidden agricultural

products or pests frequently contributes to the high rate positive findings.

Inspections of vehicles, buses and rail cars entering the United States from

Canada and Mexico increased 60% from 1998 to 2002. In FY2002, APHIS

conducted 2.9 million such inspections and made 341,000 interceptions. The

interception rate has fallen slightly from 15% in 1998 to 12% in 2002.

Budget and Staffing for Inspections

Border inspections are funded through a combination of federal discretionary

appropriations and user fees. For FY2004, CBP was given budget authority of

$2,496 million for border security, inspections, and trade facilitation at POEs. CBP

has requested $2,724 million for FY2005. The House passed H.R. 4567, the FY2005

DHS Appropriations Act, would provide $5.1 billion for CBP. The Senate bill, S.

2537 as reported, would provide $5.0 billion for CBP.89 This section of the report

analyzes funding trends and staffing for the three functions prior to their merger into

CBP. These historic funding data are not comparable across agencies and, as noted

below, may include activities in addition to the inspection functions. As a result, the

funding and staff data presented below cannot be summed into total spending for

inspections.

Table 1. Inspections Staff for All Locations, FY2001-FY2004

Fiscal year

Immigration

Customs

Agriculture

CBP non-APHIS

2001

4,717

8,184

—

2002

5,422

9,008

—

2003

6,741

10,538

1,480

—

2004

—

1,446

17,784

Source: CRS presentation of CBP Field Operations data as of Jan. 10, 2004. Comparable data on

agriculture inspections staff were not provided for FY2001 and FY2002.

CBP’s Office of Field Operations, however, has provided data on inspections

staff that are distinct from full-time equivalent (FTE) staffing used in budget and

appropriations documents. As Table 1 presents, the overall number of inspectors

grew from FY2001 through FY2003. As Table 1 and the subsequent analysis

For tracking and analysis, see CRS Report RL32566, Border and Transportation Security:

Appropriations for FY2005, coordinated by Jennifer Lake and (name redacted).

CRS-41

reveals, there have been more customs inspectors than immigration and agricultural

inspectors combined over the period analyzed in this report.

Immigration Functions

Prior to the transfer of the former INS to DHS, Congress funded the agency

from several sources. Funding for salaries and expenses was appropriated from

general revenues, off-setting fee receipts, and the Violent Crime Trust Fund

(VCTF).90 Specific funding for the agency’s construction projects was appropriated

from a construction account. The former INS’ immigration appropriations account

was divided between the agency’s two main functions, immigration adjudications

and services and enforcement and border affairs. The budget authority column in

Table 2 represents the inspection activity of the former INS, but comparisons over

time are limited due to the inclusion of funding for the border patrol in the FY2001

and FY2002 budget figures. Nonetheless, funding for immigration inspections had

risen in the late 1990s.

Table 2. Immigration Inspections Budget

Fiscal year

Immigration inspections activities

(millions of dollars)

Staffing (FTES)

1998

168

Information not available

1999

481

5,199

2000

475

5,123

2001

1,494a

5,472

2002

2,440a, b

Information not available

Source: Table prepared by CRS based on data from INS FY1999-FY2002 Congressional Budgets

and various Appropriations Acts (see below).

a. The figure includes funding for the border patrol and inspections activities.

b. The figure reflects what was enacted and the Counterterrorism Supplemental funding.

The user fee account, which provided most of the funding for immigration

inspections, includes a levy on aliens seeking entry into the United States on an

international flight.91 The user fee account also includes the Land Border Inspection

The VCTF was established by the Violent Crime Control and Law Enforcement Act of

1994 (P.L. 103-322). Congress authorized funding for FY1995-FY2000 for purposes

authorized by P.L. 103-322. Congress did not reauthorize the VCTF and it expired in

FY2000.

Congress first authorized the Attorney General to charge a user fee for immigration

inspections in the Department of Justice Appropriations Act of 1987 (P.L. 99-591), which

created §286(d) of the INA. The Commerce, Justice, State, the Judiciary and Related

Agencies Appropriations Act, FY2002 (P.L. 107-77) included provisions that increased the

(continued...)

CRS-42

Fee, which levies a user fee for inspection services at land ports of entry and

dedicated commuter lanes that are used by prescreened U.S. citizens and certain

aliens (see discussion on Automated Inspections above). Fees are also generated

through fines levied against airlines and other carriers for not complying with

immigration regulations. Immigration inspections also drew on monies generated by

the Examinations Fee Account, which is collected to cover the processing and

adjudication of immigrant, nonimmigrant, refugee, asylum, and citizenship benefits.92

The construction account included appropriations for construction projects for the

entire agency.

Customs Functions

As with immigration inspections, Customs activities are funded by direct

appropriations and by fee revenue. Prior to the transfer of the U.S. Customs Service

to DHS, Congress funded Customs activities from several sources and into several

different accounts. Most Customs funding was appropriated into the Salaries and

Expenses account, which in turn was allocated into two budget activities:

commercial activities, and drug and other enforcement activities. The Customs

inspection function falls into commercial activities, and Table 3 reports Customs

budget and staffing resources devoted to the commercial activities from FY1998 to

FY2002.

Table 3. Budget Authority for Customs Commercial Activities

Fiscal year

Commercial activities

(millions of dollars)

Staffing

(commercial activity FTES)

1998

853

9,295

1999

886

9,363

2000

922

9,070

2001

1,085

9,256

2002a

1,173

9,728

Source: U.S. Customs Service, Budget Justifications, FY1999-FY2003.

a. FY2002 Commercial Activity Appropriation and FTEs are estimates contained within the FY2003

justification material. Final published FY2002 numbers were not available due to the changes

to the FY2004 budget justification materials reflecting the realignment of the legacy Customs,

INS, and APHIS in CBP.

(...continued)

airport user fee from $6 to $7 and levied a cruise ship fee of $3 for journeys that originate

in Mexico, Canada and the United States.

§ 286(m) of INA. 8 U.S.C. § 1356.

CRS-43

The off-setting receipt revenue generated from user fees is an important source

of funding for customs inspections.93 The Consolidated Omnibus Budget

Reconciliation Act of 1985 (COBRA ‘85; P.L. 99-272) established fees for

inspection-related service. The COBRA fees are comprised of eight separate user

fees levied on passengers, conveyances, and brokers.94 COBRA fee receipts are not

appropriated for obligation by Congress, but they are available to CBP for

expenditure each year. COBRA fee receipts amounted to $271 million in FY2002,

and are estimated to amount to $288 million in FY2003.95 The authorization to

charge COBRA fees expires March 1, 2005.96

CBP also collects merchandise processing fees (MPF) to offset the cost of

processing formally entered imported merchandise. MPF collections were authorized

by the Omnibus Budget Reconciliation Act of 1986 (COBRA ‘86; P.L. 99-509), and

unlike COBRA fee receipts, MPF fees are appropriated for obligation by Congress.

MPF receipts amounted to $955 million in FY2002, and are estimated to amount to

$1,022 million in FY2003.97 Authorization to charge MPF also expires March 1,

2005.

Animal and Plant Health Functions

Agricultural animal and plant health inspections are funded through a

combination of federal appropriations and user fees. Primary funding comes from

user fees levied on international air passengers and aircraft, as well as commercial

aircraft, vessels, trucks and railcars. User fees have been authorized since 1990.

These user fees support more than the border inspection functions transferred to DHS

and continue to be collected by USDA to carry out inspection-related activities in

general. USDA will transfer funds periodically from the user fee account to cover

DHS-related costs.

User fees are not collected, however, for any passengers or cargo entering from

Canada. Pedestrians and vehicles entering from Mexico are also exempt from paying

the user fees. Appropriated funding supports these activities, due in part to the

logistics of collecting user fees at these high-volume ports of entry. Appropriations

also fund pre-departure inspections of passengers and cargo from Hawaii and Puerto

Rico to the mainland.

Table 4 indicates that 80%-85% of the funding for AQI has come from user

fees. Funding levels grew by nearly 90% in nominal dollars from FY1998 to

FY2002, and staffing levels grew by nearly 43%. The number of canine inspection

19 U.S.C. § 58(c).

See 19 U.S.C. § 58(c)(a)(1)-(8).

Budget of the United States Government Fiscal Year 2004, p. 451.

P.L. 108-121, The Military Family Tax Relief Act of 2003, was signed by the President

Nov. 11, 2003, and extends the authorization to charge customs user fees to Mar. 1, 2005.

Budget of the United States Government Fiscal Year 2004, p. 451.

CRS-44

teams more than doubled between 1998 and 2002, and has since increased to 110 in

March 2003.

Table 4. APHIS Agricultural Quarantine Inspection:

Budget and Staffing

Funding (millions of dollars)

Staffing

Fiscal year

Appropriation

User fees

Total

FTEs

Canine

1998

27.2

140.6

167.8

2,109

1999

31.2

152.2

183.4

2,219

2000

34.3

178.8

213.1

2,474

2001

48.1

222.7

270.8

2,781

2002

47.2

266.0

313.2

3,013

Source: USDA-APHIS.

The breadth of the AQI inspection and monitoring function is reflected by the

dispersion of staff. In FY2002, 48 states had AQI personnel, although 19 states had

fewer than 10 people assigned. The top five states in terms of the number of

agricultural inspectors during FY2002 included Florida (658), California (430),

Hawaii (411), Texas (340), and New York (196). These five states accounted for

two-thirds of the AQI staffing total and have retained this ranking since at least 1998.

These states also accounted for two-thirds of the number of canine inspection teams.

The top ten local offices of agricultural inspectors included Miami (325),

Honolulu (230), Los Angeles (163), the Citrus Canker Project (150), New York

City/JFK Airport (149), San Francisco (107), Chicago/O’Hare Airport (84),

Elizabeth, NJ (80), Kahului-Maui (80), and Houston (70). These 10 offices

accounted for nearly half of the FY2002 staffing level, and just over half of the

canine inspection teams.

Issues and Concerns

As discussed above, CBP inspectors are charged with enforcing a host of laws

and conducting hundreds of millions of inspections annually. When Congress

enacted HSA, it kept the U.S. Customs Service intact and created the Bureau of

Border Security to oversee immigration inspections, the border patrol, and interior

immigration enforcement activities. As provided for in HSA, the Administration

opted to reorganize the major border inspections functions into CBP. Over the past

year since CBP was established, a variety of issues and concerns have emerged. This

report concludes with discussions of selected policy, administrative, and

constitutional considerations, and a few overarching questions.

CRS-45

Policy Considerations

Competing Mandates. Tension exists between the need to conduct thorough

inspections searching for terrorists, weapons of mass destruction, illegal drugs and

weapons, unauthorized aliens and improperly entered commercial goods, and the

need to process passenger and cargo inspections efficiently so as not to impede the

flow of travel, trade, and tourism. One dramatic illustration of the effect that

increased inspections can have on the flow of trade at the border occurred in the

immediate aftermath of the September 11, 2001 terrorist attacks. The wait time for

trucks crossing the border was nearly 12 hours at some ports of entry. The land

border between United States and Canada was nearly closed, and as a result, some

U.S. auto plants began to shut down due to lack of parts.98

While most observers acknowledge that inspectors should strike a balance of

their competing goals, some warn that CBP inspectors are too concerned about

facilitating trade and travel to scrutinize passengers and goods thoroughly. Critics

cite the percentages of cargo inspected (22.6% of rail containers, 5.2% of sea

containers, and 15.1% of trucks) and the brevity of the average primary immigration

inspection (reportedly 45 seconds) as indications that the current inspections process

is inadequate.

Others maintain that CBP inspections are now conducted with much more

sophistication, drawing on the combined knowledge and experience of the

agriculture, customs and immigration inspections processes. They assert that the

development of analytical targeting units, which emphasize high-risk passengers,

conveyances, and cargo, is protecting border security while enabling the smooth flow

of goods and people.

Targeting High-Risk Shipments. CBP’s ability to successfully target highrisk containers (a cornerstone of the CSI program) is dependent upon information

regarding which containers are most likely to contain contraband. The rationale

behind the advance cargo manifest rules is to provide CBP with the necessary

information it needs to conduct its targeting operations. While many observers note

the importance of the development of sophisticated targeting mechanisms and the

significant progress CBP has made in collecting advance manifest information, others

have raised concerns.

One issue is the use of the cargo manifest as the primary document by which

CBP gathers information and conducts risk assessments on cargo shipments destined

for the United States. The cargo manifest has traditionally been used for commercial

compliance purposes and has been characterized by some as error prone. Some have

expressed concern that it may not contain the necessary information (such as

Remarks of Commissioner Robert C. Bonner, Customs and Border Protection, made at the

Heritage Foundation, Sept. 9, 2003. See [http://cbp.gov/xp/cgov/newsroom/commissioner/

speeches_statements/sept092003.xml].

CRS-46

transshipment information) to conduct the security screening currently being carried

out by CBP.99

Also, recent GAO testimony has raised concerns regarding CBP’s targeting

operations. GAO credits CBP with establishing the National Targeting Center,

promulgating regulations to improve the quality and timeliness of cargo data, refining

its targeting system, and instituting a national training program for personnel

conducting targeting operations. However, GAO noted that while CBP’s targeting

strategy incorporated some elements of risk management, it lacked a comprehensive

set of criticality, vulnerability, and risk assessments and does not follow certain

recognized modeling practices.100

Screening Aliens at the Border. Since the September 11, 2001 terrorist

attacks, considerable concern has been raised because the 19 terrorists were aliens

who apparently entered the United States legally on temporary visas. Although the

INA bars terrorists, consular officers issuing the visas and immigration inspectors

working at the borders did not have access to all the law enforcement and intelligence

data that might identify potential terrorists. Congress has enacted major laws

requiring information sharing and interoperable databases to screen potential

terrorists and criminal aliens, the most recent being the Enhanced Border Security

and Visa Reform Act of 2002. Whether these provisions are being successfully

implemented remains an important policy question.101

Last fall, the Administration announced the creation of the Terrorist Screening

Center (TSC) to consolidate the various watchlists into a single terrorist screening

database.102 Recently, the director of TSC, Donna Bucella, testified about the

progress made in developing an unclassified law enforcement sensitive database,

containing identifying information of known or suspected terrorists. Some observers

point out that no government-wide standards on how individuals get placed on or

Testimony of Stephen E. Flynn, Council on Foreign Relations, U.S. Congress, House

Committee on Energy and Commerce, Subcommittee on Oversight, Investigations, hearing,

A Review to Assess Progress with the Bureau of Customs and Border Protection’s Targeting

Program for Sea Cargo, Mar. 31, 2004.

100

General Accounting Office, Preliminary Observations on Efforts to Target Security

Inspections of Cargo Containers, GAO-04-325T, p. 1.

101

For evaluations, see U.S. General Accounting Office, Information Technology: Terrorist

Watch Lists Should Be Consolidated to Promote Better Integration and Sharing,

GAO-03-322, Apr. 15, 2003; and U.S. General Accounting Office, Border Security:

Challenges in Implementing Border Technology, GAO-03-546T, Mar. 12, 2003.

102

Homeland Security Presidential Directive 6 (HSPD-6) ordered the creation of the

Terrorist Screening Center (TSC). It was issued on Sept. 16, 2003, and directed the

operations to begin on Dec. 1, 2003. The TSC is multi-agency, including participants from

the FBI, Department of State, CBP, ICE, Secret Service, Coast Guard, Transportation

Security Administration, and the Office of Foreign Assets Control. Their stated goal is “to

consolidate the Government’s approach to terrorism screening and provide for the

appropriate and lawful use of terrorist information in screening processes.” For more on

TSC, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under

Homeland Security Presidential Directive 6, by (name redacted).

CRS-47

removed from watchlists have been established, fueling civil liberty concerns. Some

have also warned that the lack of clearly designated roles and responsibilities for

TSC, Foreign Terrorist Tracking Task Force (FTTTF), the Terrorist Threat

Integration Center (TTIC), the Counterterrorism Center and other antiterroristrelated entities continue to foster turf battles and plague efforts to have effective

information sharing.103

While US-VISIT, the automated entry and exit data system, has been much

heralded as a tool to enhance border security, critics question how many terrorists it

will identify and whether it will effectively track the entry-exit of suspicious foreign

nationals.104 Some have expressed concern that most Canadians, the 6.4 million

Mexicans with border crossing cards, and the 13-18 million foreign nationals who

enter through the Visa Waiver Program (VWP) have not been part of US-VISIT, thus

establishing a variety of avenues for potential terrorists and criminals to elude

detection through US-VISIT’s biometric background checks. The recent

announcement to add foreign nationals who enter through VWP to US-VISIT may

assuage some of these concerns about the inclusiveness of US-VISIT, but does not

resolve the issue that the nations participating in VWP are not expected to meet the

program’s October 1, 2004 deadline for biometric machine-readable passports.105

While almost all observers agree that the implementation of US-VISIT has

proven to be challenging, especially at land ports of entry, many express confidence

that it will ultimately be successful. Administration officials cite the number of

aliens apprehended or denied entry as the result of the National Security Entry Exit

Registration System (NSEERS) and the Consolidated Consular Data systems

(CCD),106 two systems that US-VISIT builds on, as evidence that US-VISIT can

achieve its objectives. Recently the Administration reported that 100 aliens had

“hits” on the biometrics in US-VISIT.107

9/11 Commission Recommendations. The National Commission on

Terrorist Attacks Upon the United States (also known as the 9/11 Commission)

issued several recommendations that directly pertain to inspection policies at the

103

U.S. Congress, House Judiciary Committee, Subcommittee on Crime, Terrorism, and

Homeland Security and the Select Homeland Security Subcommittee on Intelligence and

Counterterrorism, joint hearing on Progress in Consolidating Terrorist Watchlists — The

Terrorist Screening Center (TSC), Mar. 25, 2004.

104

For a full discussion of US-VISIT, see CRS Report RL32234, U.S. Visitor and Immigrant

Status Indicator Technology Program (US-VISIT), by Lisa M. Seghetti and Stephen R. Viña.

105

See CRS Report RL32221, Visa Waiver Program, by (name redacted).

106

For a full discussion NSEERS, see CRS Report RL31570, Immigration: Alien

Registration, by (name redacted). For a discussion of CCD, see CRS Report RL31512, Visa

Issuances: Policy, Issues, and Legislation, by (name redacted).

107

U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration,

Border Security and Claims, oversight hearing on Funding for Immigration in the

President’s 2005 Budget, testimony of Seth Stodder, Feb. 25, 2004.

CRS-48

border.108 These recommendations underscore the urgency of implementing

legislative provisions Congress enacted several years ago, as well as suggest areas in

which Congress may wish to take further action. The specific recommendations are:

Targeting travel is at least as powerful a weapon against terrorists as

targeting their money. The United States should combine terrorist

travel intelligence, operations, and law enforcement in a strategy to

intercept terrorists, find terrorist travel facilitators, and constrain

terrorist mobility.

The U.S. border security system should be integrated into a larger

network of screening points that includes our transportation system

and access to vital facilities, such as nuclear reactors.

The Department of Homeland Security, properly supported by the

Congress, should complete, as quickly as possible, a biometric entryexit screening system, including a single system for speeding

qualified travelers.109

Other 9/11 Commission recommendations, notably those related to intelligence

policy and structures, have been the focus thus far of congressional consideration and

media attention. The 9/11 Commission prepared a subsequent report that deals

expressly with immigration issues.110

Legislation implementing the 9/11 Commission recommendations (S. 2845,

H.R. 10, S. 2774/H.R. 5040 and H.R. 5024) had various provisions affecting border

inspections.111 H.R. 10, the 9/11 Recommendations Implementation Act, as amended

and passed by the House on October 8, 2004, and S. 2845, the National Intelligence

Reform Act of 2004, as amended and passed by the Senate on October 8, 2004 were

the competing bills as the 108th Congress drew to a close.

H.R. 10 as passed, S. 2845 as passed, S. 2774/H.R. 5040 and H.R. 5024 all

would hasten the development and installation of a biometric entry and exit data

system that is integrated with various databases and data systems that process or

contain information on aliens, and would apply a system of biometric identifiers

uniformly across agencies and governments. H.R. 10 as passed, S. 2845 as passed,

S. 2774/H.R. 5040 and H.R. 5024 would require the Secretary of Homeland Security

(Secretary) to develop and implement a plan to expedite the processing of registered

travelers through a single program (current registered traveler programs include

NEXUS and the Secure Electronic Network for Travelers’ Rapid Inspection

(SENTRI)). The bills would further require the Secretary to review and evaluate

108

An electronic copy of the report is available at [http://www.9-11commission.gov/].

109

For a discussion of these recommendations, see The 9/11 Commission Report, Chapter

12.4, pp. 383-389, July 2004.

110

U.S. National Commission on Terrorist Attacks upon the United States, Monograph on

9/11 and Terrorist Travel, Aug. 2004.

111

For more background and analysis, see CRS Report RL32616, 9/11 Commission:

Legislative Action Concerning U.S. Immigration Law and Policy in the 108th Congress, by

(name redacted) and (name redacted).

CRS-49

existing programs that expedite travel and increase research and development efforts

to accelerate the development and implementation of a single program. The bills

would also require the registered travelers program to be integrated into the entry and

exit data system and would authorize DHS to improve the security of passports and

other travel documents, including through the strengthening of security requirements

for documents that may be used to attain passports or other travel documents.

In addition, H.R. 10 as passed would expand pre-inspection programs in foreign

countries and assistance to air carriers at selected foreign airports in the detection of

fraudulent documents; would limit the President’s ability to waive general statutory

requirements for U.S. citizens traveling abroad or attempting to enter the United

States to bear a valid U.S. passport, so that such a waiver can only be exercised with

respect to U.S. citizens traveling to or from foreign contiguous territories who are

bearing identification documents designated by DHS as (1) reliable proof of U.S.

citizenship, and (2) of a type that may not be issued to an unlawfully present alien

within the United States; and would amend the present waiver authority concerning

document requirements for arriving nationals from foreign contiguous countries or

adjacent islands, so that such waivers may only be granted (in non-emergency

situations) through a joint determination by the Secretary of DHS and Secretary of

State on the basis of reciprocity, and then only if the arriving foreign national is in

possession of identification documents deemed secure by the Secretary of DHS.

The National Intelligence Reform Act of 2004 (P.L. 108-458). The

compromise version of S. 2845 that ultimately was enacted into law, included some

— but not all — of the border inspections provisions in both the House and Senate

versions of S. 2845.

Foremost, P.L. 108-458 requires accelerated deployment of the biometric entry

and exit system to process or contain certain data on aliens and their physical

characteristics. The Act also expands the pre-inspection program that places U.S.

immigration inspectors at foreign airports, increasing the number of foreign airports

where travelers would be pre-inspected before departure to the United States.

Moreover, it requires individuals entering into the United States (including U.S.

citizens and visitors from Canada and other Western Hemisphere countries) to bear

a passport or other documents sufficient to denote citizenship and identity.

The Act requires improvements in technology and training to assist consular and

immigration officers in detecting and combating terrorist travel. It (1) establishes the

Human Smuggling and Trafficking Center, which includes an interagency program

devoted to countering terrorist travel; (2) requires the Secretary of Homeland

Security, in consultation with the Director of the National Counter Terrorism Center,

to establish a program to oversee DHS’s responsibilities with respect to terrorist

travel; and (3) establishes a Visa and Passport Security Program within the Bureau

of Diplomatic Security at the Department of State.

Administrative Considerations

Adequacy of Infrastructure. The FY2000 Treasury-Postal Appropriations

Act (P.L. 106-58) required Customs, in consultation with the General Service

Administration (GSA) and the federal inspection service agencies, to assess

CRS-50

infrastructure needs on the northern and southwestern borders of the United States

This study identified 822 projects at a projected cost of approximately $784

million.112 Meanwhile, the Transportation Equity Act for the 21st Century (P.L. 105178) established the Coordinated Border Infrastructure (CBI) program to “improve

the safe movement of people and goods” across the borders with Canada and Mexico.

Although CBI allows for funding of non-transportation projects, financing projects

aimed at customs and immigration enforcement functions at the borders has proven

controversial because many supporters of CBI assert it should be used for

transportation projects.113

The current infrastructure at most U.S. ports of entry, many warn, is not

sufficient to accommodate the demands of the automated entry and exit data system,

US-VISIT. Those concerned about infrastructure point out that in order to record the

departure of every alien leaving the United States through a land port, there need to

be sufficient lanes, staff, and resources. According to some observers, additional

lanes may be necessary at many land ports of entry to accommodate the large number

of individuals seeking entry into the United States. Some also express concern that

the current infrastructure at air ports of entry may not be sufficient to accommodate

US-VISIT when it is fully operational. Although federal immigration inspectors have

a presence at selected airports, the space that is occupied by them is not federally

owned. Airports have limited space and may not have additional resources to fund

new construction. Some contend that this could lead to significant delays as travelers

try to make their way through ports of entry. Others maintain that as the technologies

used at the border become more sophisticated and efficient, concerns about long lines

and delays will abate. Infrastructure limitations, they assert, will be resolved by the

time US-VISIT is fully implemented.114

Inter-Agency and Inter-Department Coordination. Cooperation between

CBP and other agencies is critical to the success of CBP’s mission. This necessity

is highlighted by the recent spate of new regulations that have been promulgated by

several agencies charged with border security related activities. One example

concerns advance notification requirements. While CBP is completing its

rulemaking regarding electronic advanced manifest submissions, the FDA has

promulgated advance notification regulations pertaining to certain food imports.115

The FDA advance notice rules have different time frames from those being

considered by CBP. The FDA rules require electronically filed and complete notice

before the shipment arrives at the first U.S. port:

112

U.S. Customs Service, Port of Entry Infrastructure Assessment, overview, p. 1.

113

See CRS Report RS20790, The Coordinated Border Infrastructure Program: Issues for

Congress, by (name redacted).

114

See CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology

Program (US-VISIT), by Lisa M. Seghetti and Stephen R. Viña.

115

Department of Health and Human Services, Food and Drug Administration, Prior Notice

of Imported Food Under the Public Health Security and Bioterrorism Preparedness Act of

2002, 68 Federal Register, no. 197, Oct. 10, 2003, p. 58974.

CRS-51

no more than five days, and no less than eight hours for food

arriving by water;

four hours for food arriving by air or by rail; and

two hours for food arriving by truck.

At this time, it is unclear as to how the two sets (FDA and CBP) of advanced notice

requirements will be integrated. The FDA rules indicate that importers or their

agents must submit their advance notice using CBP’s ABI or ACS systems. Those

food importers without ABI or ACS access will use FDA’s Prior Notice (PN) System

Interface. According to the FDA rule, the Commissioners of FDA and CBP will

publish a plan detailing the integration and partial harmonization of these rules.

Another example of the importance of inter-agency cooperation is evidenced in

the various federal entities that have the responsibilities for aliens who seek asylum

in the United States. Duties are spread across DHS’s Coast Guard (interdiction),

Customs and Border Protection (apprehensions and inspections), Immigration and

Customs Enforcement (detention), Citizenship and Immigration Services

(determination of credible fear) and DOJ’s Executive Office for Immigration Review

(asylum and removal hearings). While the lead agencies for setting asylum standards

and policy are USCIS and EOIR, CBP inspectors are quite often the first point of

contact with arriving asylum seekers.

Training of Personnel. As is evident from the discussions of the

agricultural, customs, and immigration inspections, the CBP inspector must learn a

set of complex laws and procedures as well as develop a keen eye for violators and

violations of the law.

Some argue that it is too much to expect that those working in primary

inspections are knowledgeable of the various types of travel documents,116 as well as

when a foreign national is required to have a travel document.117 Some express

concern that the ability to recognize these documents and differentiate fraudulent

documents from legitimate ones is learned only from experience and training. The

customs inspector is attuned to targeting travelers and goods from a cargo

perspective, a skill some argue, that is quite distinct from an immigration inspection.

That the inspector must also be facile in accessing numerous data systems and

databases has raised further questions about the adequacy of training.118

Specific concerns are being raised that primary inspectors in CBP from customs

and immigrations backgrounds may not have sufficient agricultural training. Some

116

For example, different countries have different passports and DOS issues several

different types of visas.

117

For example, CBP inspectors must know that Canadian nationals are exempt from

passport and visa requirements, Visa Wavier Program country participants do not need a

visa and certain Mexican nationals may use a Border Crossing Card instead of a passport

or a visa to enter the United States.

118

Data systems discussed previously in this report that inspectors use include APIS, IBIS,

INPASS NAILS, NIIS, NSEERS, and SEVIS, (all immigration); and ABI, ATS, AMS,

BRASS, CAFES, FAST, PAPS, and TECS (all customs); and WADS (agriculture).

CRS-52

argue that current CBP training in agriculture for new inspectors may be inadequate.

Former APHIS inspectors had required science and biology backgrounds, combined

with extensive pest and disease training. Many stakeholders in the agricultural

community are asking whether CBP administrators and front line inspectors will pay

enough attention to agricultural inspections.

Others assert that these concerns about training needs are exaggerated and

observe that CBP has a new 14-week training course for inspectors. They point out

that the immigration and customs inspectors have been cross-designated for years and

are already familiar with the laws, procedures, and databases. They also observe that

agricultural inspections will remain specialized for the time being and will occur

during secondary inspections.

Database Technology. Critics of the current technological infrastructure

contend that it poses a security risk. The Enhanced Border Security and Visa Entry

Reform Act of 2002 (P.L. 107-173) mandated the integrat

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