Border and Transportation Security: Selected Programs and Policies

Congressional research reportMar 29, 2005

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Order Code RL32840

CRS Report for Congress

Received through the CRS Web

Border and Transportation Security:

Selected Programs and Policies

March 29, 2005

Lisa M. Seghetti, name redacted, and name redacted

Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Border and Transportation Security:

Selected Programs and Policies

Summary

Border and Transportation Security (BTS) is a pivotal function in protecting the

American people from terrorists and their instruments of destruction. This report

addresses selected programs and policies now in place that seek to attain higher

levels of BTS. It is the second in a three-part series of CRS reports that make use of

analytical frameworks to better understand complex phenomena and cast them in

terms that facilitate consideration of alternative policies and practices. (The first

report in the series, CRS Report RL32839, Border and Transportation Security: The

Complexity of the Challenge, analyzes the reasons why BTS is so difficult to attain.

This report is the second in the series. The final report is CRS Report RL32841,

Border and Transportation Security: Possible New Directions and Policy Options.)

Congressional concern with terrorism and border security was manifested as

early as 1993, with the first World Trade Center attack and subsequent terrorist

attacks against U.S. targets abroad. The congressional response to these events began

with attempts to understand the nature of the terrorist threat through the creation of

several commissions. The response to the 9/11 attacks was followed by specific,

targeted measures to protect the nation such as the creation of the Transportation

Security Administration and the passage of laws that were aimed at strengthening

security at the border, including immigration policies with respect to the admission

of foreign nationals; and strengthening security in the maritime domain.

Congressional interest continues in more comprehensive approaches including recent

efforts to respond to the report of the 9/11 Commission.

There are several broad strategies that could be pursued to enhance border

security. Current programs and policies can be grouped under the following generic

categories, which include pushing the border outwards to intercept unwanted people

or goods before they reach the United States (as in the passenger pre-screening

program); hardening the border through the use of technology (as shown by biometric

identifiers); making the border more accessible for legitimate trade and travel (as in

“trusted traveler” programs); strengthening the border inspection process through

more effective use of intelligence (with the integration of terrorist watch lists); and

multiplying the effectiveness of interdiction programs through the engagement of

other actors in the enforcement effort (as displayed by bi-national accords with

Canada and Mexico). It is also possible to use the strategies as a checklist for what

new efforts might be explored.

Many current programs and policies to enhance border and transportation

security were put into place as a result of the 9/11 terrorist attacks with a sense of

urgency — to prevent another attack. Programs and policies in existence prior to the

attacks, however, were often created with a different focus and not necessarily with

the terrorist threat in mind. The challenge for Congress is to review these programs

and policies comprehensively to help them form a more coherent and effective

overall strategy. This report will be updated periodically as events warrant.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Congressional Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Selected Programs and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

People-Related Border Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Goods-Related Border Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Current Policies at the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Efforts to Push Out the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pre-Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Advanced Passenger Manifest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TSA and ICE Border Security-Related Activities . . . . . . . . . . . . . . . . . 8

Goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Advance Electronic Cargo Manifest Requirement . . . . . . . . . . . . . . . . 9

Container Security Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Customs-Trade Partnership Against Terrorism . . . . . . . . . . . . . . . . . . 10

Efforts to Harden the Border Through the Use of Technology . . . . . . . . . . . . . . 11

U.S.-VISIT Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Biometric Identifiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Smart Containers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Efforts to Make the Border More Accessible for Legitimate Travel and Trade . 14

NEXUS/SENTRI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Free and Secure Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Visa Waiver Program (VWP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Strengthening the Border Through More Effective Use of Intelligence . . . . . . . 16

Multiplying Effectiveness Through Engagement of Other Key Actors in

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The Construct Illustrated Using Selected Programs . . . . . . . . . . . . . . . . . . 19

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Appendix A: Selected Additional BTS Programs . . . . . . . . . . . . . . . . . . . . . . . 22

Carrier Consultant Program (CCP) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I-68 Canadian Border Boat Landing Program/Outlying Area

Reporting Station (OARS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Immigration Security Initiative (ISI) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Integrated Border Enforcement Teams (IBETS) . . . . . . . . . . . . . . . . . 22

INS Passenger Accelerated Service System (INSPASS) . . . . . . . . . . . 23

Integration of Data Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Integrated Surveillance Intelligence System (ISIS) . . . . . . . . . . . . . . . 23

Known Shipper Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Laser Visa (Mexican Border Crossing Card) . . . . . . . . . . . . . . . . . . . . 24

North American Security Perimeter . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Operation Safe Commerce (OSC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Unmanned Aerial Vehicles (UAV) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

List of Figures

Figure 1. Movement of Goods and People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Border and Transportation Security:

Selected Programs and Policies

Introduction

Border and Transportation Security (BTS) is a pivotal function in protecting the

American people from terrorists and their instruments of destruction. While BTS

may be difficult to attain, the federal government has put into place multiple

programs and policies to achieve this goal. The three reports in this series attempt

to provide an understanding of the complex problems faced in seeking enhanced

border and transportation security, suggest a framework to better understand existing

programs and policies, and explore some possible new directions and policy options.

As noted in the first report1 in this series, homeland security efforts can be seen

as a series of concentric circles or screens, with the outer screen being that of

preventive efforts launched outside the country — before terrorists or their weapons

can reach the country. The continuum of activities to provide homeland security then

moves through progressively smaller circles starting from more distant efforts to

closer and more localized measures, ending with emergency preparedness and

response. Thus, the process starts with prevention abroad and progresses through the

other stages as needed.

As the first report in this series observes, border management is a complex task

and current programs and policies in place to strengthen the border and facilitate the

flow of legitimate people and things can seem overwhelmingly complex and difficult

to approach in a systematic way. This report addresses the myriad programs and

policies that make up the nation’s current approach to attaining higher levels of BTS.

Before doing so, however, it is useful to review the development of congressional

concern and policy approaches.

Congressional Concerns

Congressional concern with terrorism and border security was manifested early,

following a series of terrorist attacks beginning in the 1990s. The shock of the first

World Trade Center attack in 1993 was followed by two attacks in Saudi Arabia

(Riyadh in 1995 and Khobar Towers near Dhahran in 1996), the simultaneous

Embassy bombings in 1998 (Kenya and Tanzania), the attack on the USS Cole in

2000, and culminating in the catastrophic attack on the World Trade Center and the

Pentagon on September 11, 2001. The congressional response began with inquiries

related to the nature of the terrorist threat, and was followed by specific, targeted

CRS Report RL32839, Border and Transportation Security: The Complexity of the

Challenge, by (name redacted), (name redacted), and Lisa M. Seghetti.

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measures to protect the nation following the events of 9/11. There are indications

that congressional interest continues in broader, more comprehensive approaches

including recent efforts to respond to the report of the 9/11 Commission contained

in the National Intelligence Reform Act of 2004 (P.L. 108-458). Congressional

policy evolution is charted briefly below:

Broad efforts to understand the terrorist threat — Starting in 1998,

Congress created three commissions to better understand the nature

of the terrorist threat facing the nation. These included the Gilmore

Commission (to investigate domestic preparedness to cope with

weapons of mass destruction), the Bremer Commission (to explore

the terrorist threat and what could be done to prepare for it), and the

Hart-Rudman Commission (to investigate national security

challenges in the 21st Century).2

Structural changes to provide a proper framework for action —

Following the 9/11 attacks, Congress enacted legislation to create

the Department of Homeland Security to provide a structural

framework for subsequent action, and the USA PATRIOT ACT to

provide the tools needed for the new challenge to national security.3

Starting even earlier, but continuing through this period, Congress

attempted to remedy perceived flaws in the immigration system with

a series of legislative measures.4

Highly specific actions to protect against immediate threats —

Understandably, following the 9/11 attacks that were committed by

foreign national extremists, early legislative action called for the

immediate implementation of the entry and exit control system, the

use of biometric identifiers in travel documents, and intelligence

sharing among federal law enforcement and immigration agencies

through the passage of the PATRIOT Act. Airline security measures

were taken with the creation of the Transportation Security

Administration, among other things in the Aviation and

Transportation Security Act. That was soon followed by the

Enhanced Border Security and Visa Entry Reform Act to tighten

immigration practices and tools, and legislation to protect against the

The official names and dates of creation of the Commissions are as follows: (1) Gilmore

Commission, known officially as The Advisory Panel to Assess Domestic Response

Capabilities for Terrorism Involving Weapons of Mass Destruction, created on Oct. 17,

1998 (P.L. 105-241); (2) Bremer Commission, known officially as The National

Commission on Terrorism, created on Oct. 21, 1998 (P.L. 105-277); and (3) Hart-Rudman

Commission, known officially as The U.S. Commission on National Security/21st Century,

created on Sept. 2, 1999.

The USA PATRIOT Act, known officially as the Uniting and Strengthening America by

Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT

Act) Act of 2001 was passed on Oct. 26, 2001 (P.L. 107-56). The Homeland Security Act

was passed on Nov. 25, 2002 (P.L. 107-296).

See for example the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (P.L. 104-208).

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serious threats posed in the maritime domain with enactment of the

Maritime Transportation Security Act.5

Interest in broader, more comprehensive approaches — As

evidenced in recent oversight hearings, Congress has been frustrated

by the failure to more aggressively address other border and

transportation security threats (including the need to create

integrated terrorist watch-lists, and measures to address other modes

of transportation — rail and mass transit, air cargo, trucking, and

buses). These concerns were given a strong impetus by the Final

Report of the 9/11 Commission, which highlighted the need for

more strategic approaches to the terrorist threat, and are expressed

in legislative form in the Intelligence Reform and Terrorism

Prevention Act of 2004 (P.L. 108-458).6

The next section of the report traces the development of selected programs and

policies designed to achieve higher levels of border and transportation security, and

presents them in a framework that facilitates a better understanding of current

approaches and some possible new directions.

Selected Programs and Policies

Since the September 11, 2001 terrorist attacks, the nation has made securing the

homeland its primary objective. Border security has emerged as a critical stage in

achieving this goal. Prior to the terrorist attacks, federal agencies involved in

securing the homeland were fragmented and often plagued by internal performance

problems. As discussed below, many federal agencies tasked with securing the

nation’s borders did not communicate with one another. Moreover, technology was

inadequate for communications within many of these agencies as well as between

agencies. For example, immigration systems and databases, which are critical when

trying to determine the admissibility of a foreign national and keep bad people out

of the country were not (and to some extent still are not) integrated. In an effort to

address some of these issues, Congress passed the Homeland Security Act of 2002

(P.L. 107-296).7

The Homeland Security Act of 2002 consolidated many of the federal agencies

responsible for border and transportation security into a single department. Within

the Department of Homeland Security (DHS) is a Directorate of BTS, which is

The Aviation and Transportation Security Act (ATSA, P.L. 107-71) signed on Nov. 19,

2001; the Enhanced Border Security and Visa Entry Reform Act (P.L. 107-143) signed on

May 14, 2002; and the Maritime Transportation Security Act of 2002 (P.L. 107-295) signed

on Nov. 25, 2002.

See The 9/11 Commission Report: Final Report of the National Commission on Terrorist

Attacks Upon the United States (Washington: GPO, 2004).

Congress also passed several other pieces of legislation relevant to Homeland Security —

the USA PATRIOT Act; the Enhanced Border Security and Visa Entry Reform Act of 2002;

the Aviation and Transportation Security Act; the Air Transportation Safety and System

Stabilization Act; and the Maritime Transportation Security Act of 2002.

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charged with securing: the borders; territorial waters; terminals; waterways; and air,

land and sea transportation systems of the United States. BTS houses the Bureau of

Customs and Border Protection (CBP), the Transportation Security Agency (TSA)

and Immigration and Customs Enforcement (ICE). Within CBP are the inspections

service of the former Immigration and Naturalization Services (INS), the U.S. Border

Patrol, the inspections service of the U.S. Customs Service, and the border-related

inspection programs of the Animal and Plant Health Inspection Service (APHIS). In

addition to the border security-related functions of the former INS and U.S. Customs

Service being transferred to CBP, the following agencies were also transferred to

DHS: (1) U.S. Coast Guard; (2) TSA; and (3) immigration investigations,

intelligence, interior enforcement and detention and removal functions of the former

INS and U.S. Customs investigations and interior enforcement. The Coast Guard

was transferred to DHS as a stand-alone agency and TSA was maintained in DHS’

BTS as a distinct entity.8

This section focuses on current border security activities of CBP,9 the Coast

Guard and the airline security component of the TSA. The activities discussed in this

section are divided into categories of how they provide BTS and further divided into

people and goods security-related programs.

Background

The DHS is the primary federal agency responsible for securing the border.

CBP’s function is to secure U.S. borders while facilitating the legitimate flow of

people and goods across the border. CBP personnel carry out these duties by

inspecting people and goods prior to entry into the United States and by dispatching

border patrol agents to patrol the border between ports of entry to prevent people

from illegally entering the country. In addition to the various components in DHS,

the Coast Guard aids in securing U.S. ports and waterways. In securing the ports and

waterways, the Coast Guard performs the following functions: (1) defense readiness;

(2) drug interdiction; (3) migrant interdiction; and (4) law enforcement-related

functions.10 Another component of border security is securing the nation’s air

system, which is primarily done by TSA. Current policies at the border can be

separated into two major categories: people-related border security and goods-related

border security.

According to the Homeland Security Act of 2002 (P.L. 107-296), however, TSA is only

required to be maintained as a distinct entity within DHS for two years, until 2004. At the

time of this report, TSA was still an independent entity in DHS.

CBP also has an Office of International Affairs (OIA) that is responsible for: managing

CBP’s international activities and programs; conducting CBP’s bilateral and multilateral

relations with foreign agencies; overseeing the negotiation and implementation of CBP’s

agreements with foreign agencies; and managing all foreign training assistance programs

provided by CBP.

See CRS Report RS21125, Homeland Security: Coast Guard Operations — Background

and Issues for Congress, by Ronald O’Rourke.

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People-Related Border Security

Since the terrorist attacks, considerable focus has been placed on the fact that

the 19 terrorists were aliens who apparently entered the United States legally despite

provisions in immigration law that could have barred their admission.11 Fears that

lax enforcement of immigration laws regulating the admission of foreign nationals

into the United States may continue to make the United States vulnerable to terrorist

attacks have led many to call for tighter measures at the border (as well as during the

screening process for visas). These concerns, which are constantly weighed with

efforts to facilitate the legitimate travel of people across the border, have been

expressed frequently in a legislative form.12

Goods-Related Border Security

The U.S. maritime system consists of more than 300 sea and river ports with

more than 3,700 cargo and passenger terminals, with most ships calling at U.S. ports

being foreign-owned. Container ships have been the focus of much of the attention

on seaport security due to the potential of terrorists infiltrating them. More than 6

million marine containers enter U.S. ports each year and while all cargo information

is analyzed by CBP officers for possible targeting for closer inspection, only a

fraction is actually physically inspected.13 CBP works in tandem with the U.S. Coast

Guard at sea ports of entry. Efforts such as the Coast Guard’s requirement that ships

provide a 96-hour Notice of Arrival and CBP’s Container Security Initiative (CSI)

program aid in preventing more harmful things from getting to the United States.

In addition to maritime security, much attention has been focused on the

nation’s air, truck and rail system. Similar to the massive volume of containers

entering the nation’s seaports, airports also experience large volumes of cargo.

Current Policies at the Border

The U.S. government has employed a number of strategies and programs to

make the nation’s borders more secure. The following actions are set in a framework

that suggests types of possible policy actions:

Pushing the border outwards to intercept unwanted people or goods

before they reach the United States;

Although the 9/11 terrorists appeared to have entered the country legally, it was later

determined that some of the terrorists used fraudulent documents and many of them

subsequently violated immigration law.

See, for example, the USA PATRIOT Act; the Enhanced Border Security and Visa Entry

Reform Act of 2002; and the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996.

See CRS Report RL31733, Port and Maritime Security: Background and Issues for

Congress, by (name redacted).

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Hardening the border through the use of technology and the presence

of more agents at the border;

Making the border more accessible for legitimate trade and travel;

Strengthening the border through more effective use of intelligence;

and

Multiplying effectiveness through the engagement of other actors in

the enforcement effort (including engaging Canada, Mexico, state

and local law enforcement resources, and the private sector).

Efforts to Push Out the Border

Many contend that the best way to secure the border is by addressing issues

before they reach the border. While this concept is not new, greater emphasis has

been placed on “pushing the border out” since the terrorist attacks. (The following

discussion is organized to highlight activities that target people and goods for

inspection).

People14

In 2004, there were more than 427 million travelers who were inspected at a

U.S. port of entry.15 Of the 427 million travelers who sought entry into the United

States in 2003, approximately 62% were foreign nationals. While the majority of

travelers seeking entry into the United States are admitted during primary

inspections,16 a small percentage of travelers (less than one percent) are referred to

secondary inspections.17 In theory, by pushing out the border, the number of travelers

needing closer scrutiny at the border (i.e., referrals to secondary inspection) would

diminish, which would create a higher level of security. Following are a few

examples of either congressional mandates and/or administrative initiatives that are

aimed at pushing out the border.

Pre-Inspections. Pre-inspections are immigration inspections conducted at

foreign ports of embarkation by United States authorities for passengers seeking entry

For additional information on immigration inspections, see CRS Report RL32399, Border

Security: Inspections Practices, Policies, and Issues, (name redacted), Coordinator.

Preliminary data for FY2004 shows the number of people inspected at a U.S. POE was

433 million. See [http://uscis.gov/graphics/shared/aboutus/statistics/msrsep04/INSP.HTM].

Primary inspection is the first level of inspection and consists of a brief interview with a

CBP inspector, a cursory check of the traveler’s documents and a query of the Interagency

Border Inspection System (IBIS), which is an immigration data system that interfaces with

other federal immigration and law enforcement data systems.

A traveler is referred to secondary inspections if the CBP inspector is suspicious that the

traveler may be inadmissible under the Immigration and Nationality Act or in violation of

other U.S. laws. During secondary inspections, travelers may be questioned extensively and

travel documents are further examined. Several immigration databases are queried as well,

including “lookout” databases for terrorists.

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into the U.S. Congress first authorized immigration pre-inspections in 1996.18

However, efforts to preinspect travelers had previously been underway for several

years. As of spring 2005, 15 foreign airports participated in the pre-inspection

program,19 and Congress has mandated that preinspections be extended to “at least

25 foreign airports.”20

Under the pre-inspection program, the Secretary of Homeland Security details

immigration officers to foreign airports. While immigration officers that are located

at pre-inspection sites can perform general inspection functions, other law

enforcement functions performed by immigration officers within the United States

may be limited in the countries where pre-inspection sites are located.21

Although the original intention of pre-inspections was to decrease the number

of inadmissible aliens entering the United States, some officials now view it as a

useful means to better secure our borders while facilitating the flow of travel. Setting

up pre-inspection sites at foreign airports, however, is not without controversy. In

order to have a pre-inspection site at a foreign airport, the United States must enter

into diplomatic negotiations with the host country. These negotiations include

addressing issues such as sovereignty and the extent to which immigration officers

can enforce United States’ immigration laws in the foreign country. Another issue

in setting up pre-inspection sites at foreign airports is the amount of resources it takes

to staff them. Immigration officials are assigned to pre-inspection sites based on the

volume of travelers seeking entry to the United States. Thus, countries that may not

have the volume of travelers to justify a pre-inspection site may still justify having

such a site based on the number of “high risk” travelers.

Advanced Passenger Manifest. Air carriers en route to the United States

from a foreign country are required to submit passenger manifests in advance of their

arrival at a U.S. port of entry. While inspections are done on U.S. soil, such advance

notification alerts the CBP inspectors to which travelers will need closer scrutiny.

The manifest is transmitted electronically via the Advanced Passenger Information

System (APIS), which is integrated with the Interagency Border Inspection System

(IBIS), a component of the US-VISIT program.

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

1996 (P.L. 104-208).

The following foreign airports participate in the pre-inspection program: (1) Oranjestaad,

Aruba; (2) Calgary, Alberta, Canada; (3) Edmonton, Alberta, Canada; (4) Freeport,

Bahamas; (5) Hamilton, Bermuda; (6) Nassau, Bahamas; (7) Shannon, Ireland; (8) Toronto,

Ontario, Canada; (9) Vancouver, British Columbia, Canada; (10) Victoria, British

Columbia, Canada; (11) Winnipeg, Manitoba, Canada; and (12) Dublin, Ireland (see 8 CFR

103.1). Three additional airports have the capability to preinspect travelers who are directly

en route to the United States: (1) Guam; (2) Puerto Rico; and (3) the United States Virgin

Islands (see 8 CFR 235.5).

See §7210(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108458).

For example, immigration inspectors enforce various criminal and administrative statutes,

apprehend violators, and adjudicate a variety of applications for various immigration

benefits.

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TSA and ICE Border Security-Related Activities. TSA and ICE have

several programs that have implications for securing the nation’s borders but are

usually not considered to be directly applicable to border security. These programs

are either geared towards pre-screening individuals before they embark on a flight

originating in the United States or providing intervention during a flight should an

act of terrorism occur.

Computer Aided Passenger Pre-Screening System. Since 1996, the

Computer Aided Passenger Pre-screening (CAPPS) System has analyzed ticket

purchasing behavior to identify air travelers who may pose a threat. While the TSA

maintains that the methods of identifying suspicious passengers under the existing

CAPPS program has largely been compromised by information publicly discussed

following the terrorist attacks, efforts to create a next-generation passenger risk

assessment and pre-screening system (CAPPS II) have been scrapped due to

mounting privacy concerns and operational problems. On August 26, 2004, however,

TSA announced its plans to test a new passenger pre-screening program, Secure

Flight.22 Under Secure Flight, TSA will be responsible for checking domestic airline

passengers’ names against terrorist watch lists (see discussion below, “Strengthening

the Border Through More Effective Use of Intelligence”).23

The “No-Fly” and “Selectees” Lists.24 TSA is mandated by law to

maintain a watchlist of names of individuals suspected of posing “a risk of air piracy

or terrorism or a threat to airline or passenger safety.” The watchlist was created in

1990 and was initially administered by the Federal Bureau of Investigations, then the

Federal Aviation Administration before TSA finally took over the administrative

responsibility. Individuals whose names are on these lists are subjected to additional

security measures, with a “no-fly” match requiring the individual to be detained and

questioned by federal law enforcement and a “selectees” match requiring additional

screening. P.L. 108-458 sets forth procedures for appealing erroneous information

or determinations made by TSA with respect to the aforementioned records.25

Federal Air Marshal Service. The Federal Air Marshall Service (FAMS)

was created as a direct result of the events of the terrorist attacks. It was originally a

part of TSA but was moved to ICE by DHS in December 2003. FAMS places plain

clothes federal law enforcement agents on board “high-risk” flights either destined

to the United States or originating in the United States. In the two-year period

following the terrorist attacks, air marshals responded to over 2,000 aviation security

See CRS Report RL32802, Homeland Security: Air Passenger Prescreening and

Counterterrorism, by (name redacted), William Krouse, and Ed Rappaport.

Passengers on international flights names are already checked against names in the

consolidated Terrorist Screening Center’s database.

See CRS Report RL32802, Homeland Security: Air Passenger Prescreening and

Counterterrorism, by (name redacted), William Krouse, and Ed Rappaport.

See §4012(a) of P.L. 108-458.

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incidents, used non-lethal force 16 times, discharged their weapons on three

occasions and were involved in 28 arrests or detainments of individuals.26

In addition to FAMS, other measures to secure passenger airlines include the

hardening of cockpit doors, training and arming pilots who volunteer to be Federal

Flight Deck Officers, and the training of flight attendants to handle security threats

in the aircraft cabin.

Goods

As discussed above, the massive volume of containers that arrive at U.S. ports

each year makes it impractical for CBP to inspect every container. In order to focus

its limited inspection resources, CBP has launched several initiatives designed to

enhance the targeting of high-risk shipments and securing the entire supply chain

from point of origin to final destination. While these initiatives assist CBP inspectors

with targeting high-risk containers, thus requiring a physical inspection at the border,

they also permit the identification of such containers in advance of their arrival at the

border.

Advance Electronic Cargo Manifest Requirement. Cargo inspections

are dependent on receiving accurate information in a timely manner in order to

execute risk assessment and targeting procedures before shipments reach the border.

To give inspectors adequate information and time to perform a risk assessment on

arriving cargo shipments, the legacy Customs agency published a rule (known as the

24-hour rule)27 requiring the submission of certain manifest information to Customs

24-hours in advance of the vessel cargo being laden at the foreign port. Current law

required CBP to develop rules concerning the mandatory electronic submission of

cargo manifest data.28 CBP published regulations establishing these rules 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 the

Pre-Arrival Processing System (PAPS) or the Automated Broker

U.S. Government Accountability Office, Federal Air Marshal Service Is Addressing

Challenges of its Expanded Mission and Workforce, but Additional Actions Needed, GAO04-242, Nov. 2003.

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.

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

Security Act of 2002 (P.L. 107-295).

CRS-10

Interface (ABI) and 30 minutes prior to arrival for shipments entered

through FAST.29

Container Security Initiative. The Container Security Initiative (CSI)

program, one of a series of initiatives aimed at securing the supply chain, was

initiated by the U.S. Customs Service (now CBP) in January of 2002 to prevent

terrorists from exploiting containers entering into the United States. CSI is based on

four core elements: (1) developing criteria to identify high-risk containers; (2) prescreening high-risk containers at the earliest possible point in the supply chain; (3)

using technology to pre-screen high risk containers quickly; and (4) 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. Similar to CBP

inspectors who conduct pre-inspections at foreign airports, (as discussed above), CBP

officers stationed at CSI ports are neither armed, nor have arrest powers. CBP

continues to expand CSI to additional foreign ports. As of spring 2005, CSI was at

32 foreign ports.

Customs-Trade Partnership Against Terrorism. The Customs-Trade

Partnership Against Terrorism (C-TPAT) was initiated in April 2002 and offers

importers expedited processing of cargo if they comply with CBP requirements for

securing their entire supply chain. C-TPAT participants benefit from fewer cargo

inspections, as membership in C-TPAT reduces a company’s overall risk score in the

Automated Targeting System (ATS).30 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 completed 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; and

communicate C-TPAT guidelines to other companies in the supply

chain and work toward building the guidelines into relationships

with these companies.

Once the applicant company has conducted the security self-assessment and

submitted the security profile, C-TPAT officials review the security profile to

develop an understanding of the company’s security practices. C-TPAT officials also

gather information regarding the company’s trade compliance history and any past

criminal investigations. Based upon the results of the review, CBP will work with

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

Advance Presentation of Cargo Information; Final Rule,” Federal Register, vol. 68, no. 234,

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

ATS is a risk assessment used by CBP to target its inspections on high-risk shipments.

CRS-11

the company to address any security concerns discovered during the review, or will

further reduce the company’s risk score.

Additional efforts to push the border out include the following (see Appendix

A for a description of each program):

Carrier Consultant Program (people);

Immigration Security Initiative (people);

Known Shipper Programs (goods); and

North American Perimeter Security (people).

Efforts to Harden the Border Through the

Use of Technology

The U.S. northern and southwest borders extend over 6,000 miles, with vast

areas of both borders lacking direct surveillance by border patrol personnel. While

the northern border, historically, has posed less of a problem than its southwestern

counterpart, the terrorist attacks have brought attention to the vulnerabilities that both

borders pose. The southwest border, on the other hand, has a longstanding history

of illegal migrants attempting to gain entry into the United States as well as

individuals attempting to smuggle human beings and drugs into the country. The

border patrol has increased its manpower along portions of the border and various

types of technology are also being used such as video cameras, ground sensors,

radiation detectors, geographic information systems, and physical barriers to provide

surveillance at the border.31

While critics of the current technological infrastructure contend that its

weaknesses pose a security risk, efforts are underway to enhance border technology.

Issues such as integrating data systems, sharing intelligence among agencies and

departments, having technology that can track the comings and goings of foreign

nationals and having technology that can read biometric identifiers are all important

to border management.

Additionally, agencies continue to invest in technology that will aid in detecting

things that may cause harm, including technology that would detect explosives.32 For

example, inspectors are increasingly using portal scanning devices on commercial

vehicles to detect radiation. The border patrol has begun using Unmanned Aerial

Vehicles (UAV) in its Tucson Border Patrol Sector as part of its Arizona Border

Control (ABC) initiative in an attempt to control the flow of illegal migration

See CRS Report RL32562, Border Security: The Role of the U.S. Border Patrol, by (nam

e redacted).

See CRS Report RS21920, Detection of Explosives on Airline Passengers:

Recommendation of the 9/11 Commission and Related Issues, by (name redacted) and (name

redacted).

CRS-12

between ports of entry.33 The border patrol also uses other technology such as ground

sensors and video cameras.

In addition, CBP has deployed an array of non-intrusive inspection (NII)

technologies at ports of entry to assist inspectors with the examination of cargos and

the identification of contraband. Large scale NII technologies include a number of

x-ray and gamma ray systems. The Vehicle and Cargo Inspection System (VACIS)

uses gamma rays to produce an image of the contents of a container for review by the

CBP inspector. The VACIS can be deployed in a stationary or mobile configuration

depending on the needs of the port. CBP has also deployed several rail VACIS

systems to screen railcars entering the country. Other large scale NII systems include

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

or mobile configuration; the Mobile Sea Container Examination System, and the

Pallet Gamma Ray system. CBP also continues to deploy nuclear and radiological

detection equipment in the form of personal radiation detectors, radiation portal

monitors, and radiation isotope detectors at ports of entry. Following are selected

examples of either congressional mandates and/or administrative initiatives that are

aimed at hardening the border.

U.S.-VISIT Program34

In 1996, Congress first mandated that the former INS implement an automated

entry and exit data system (now referred to as the U.S.-VISIT program) that would

track the arrival and departure of every alien.35 The objective for an automated entry

and exit data system was, in part, to develop a mechanism that would be able to track

nonimmigrants36 who overstayed their visas as part of a broader emphasis on

immigration control. Following the September 11, 2001 terrorist attacks, however,

there was a marked shift in priority for implementing an automated entry and exit

data system. While the tracking of nonimmigrants who overstayed their visas

remained an important goal of the system, border security has become the paramount

concern.

Tracking the entry and exit of most foreign nationals at U.S. ports of entry is not

a small undertaking. The massive volume of travelers seeking entry into the United

States at one of the 300 land, air and sea ports of entry coupled with the demands

such a system would place on port infrastructure makes implementing the system

challenging. Nonetheless, implementation of the U.S.-VISIT program began at

selected air and sea ports on January 5, 2004, and selected land ports of entry on

December 31, 2004.

The ABC Initiative is a coordinated effort among federal, state and local agencies to

secure the Arizona border and its interior.

For additional information on the U.S. — VISIT program, see CRS Report RL32234, U.S.

Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa M.

Seghetti and Stephen R. Viña.

Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(P.L. 104-208).

A nonimmigrant is a foreign national admitted to the United States on a temporary basis.

CRS-13

Biometric Identifiers

Although initially required by Congress in 1996 to curtail the use of fraudulent

Mexican Border Crossing Cards (now referred to as Laser Visas),37 biometric

identifiers have received a great deal of attention post 9/11 as the need to positively

identify people seeking entry into the United States became paramount. The U.S.VISIT program, as discussed above, brought national attention to such technology as

discussion centered around which type of biometrics (i.e., iris scan, fingerprint, facial

photograph, etc.) would be best for the program.

Under current law, travel documents must have a biometric identifier that is

unique to the cardholder. In May 2003, the International Civil Aviation Organization

(ICAO) finalized standards for biometric identifiers, which asserted that facial

recognition is the globally interoperable biometric for machine readable documents

with respect to identifying a person.38 In an earlier report published by the National

Institute of Standards and Technology (NIST), it was determined that two

fingerprints, as opposed to ten-fingerprints, and a facial photograph “... are the only

biometrics available with large enough operational databases for testing at this

time.”39 Although NIST set the two-fingerprint standard for identifying one’s

identity, concern has been raised about the possible limitation two-fingerprints pose

for obtaining additional information on a person, such as arrest warrants and criminal

history.

Smart Containers

In an effort to secure the supply chain across international boundaries, CBP and

select volunteer importers participating in C-TPAT have begun testing a new “smart

container.” Although increasingly sophisticated tools exist, such as bomb sniffers and

high-tech locks, many view smart containers that are capable of sensing changes in

the surrounding environment as a critical means to prevent crime and terrorism. In

theory, “a smart container would include the means of detecting whether someone

has broken into a sealed container and would have the ability to communicate that

information to a shipper or receiver, via satellite or radio.”40

Under this initiative, CBP provides selected importers with sensors to be

secured inside a container. The sensors can detect whether or not a container has

been entered during transit and will submit the information to CBP. The first phase

Laser Visas are a type of visa that could also be used by citizens of Mexico to gain shortterm entry (up to six months) for business or tourism into the United States.

The International Civil Aviation Organization Technical Advisory Group, New

Technology Working Group, Biometric Deployment of Machine Readable Travel

Documents, Technical Report (Version 2.0), May 21, 2004.

DOJ, DOS, and the NIST, Report to Congress, Use of Technology Standards and

Interoperable Databases with Machine-Readable, Tamper-Resistant Travel Documents, Jan.

2003.

Daniel MacHalaba and Andy Pasztor, “Thinking Inside the Box: Shipping Containers

Get ‘Smart’,” The Wall Street Journal Online, Jan. 15, 2004.

CRS-14

of ‘smart box’ testing involves volunteer importers with containers originating in

Europe and Asia, moving through U.S. ports in New York-New Jersey, Los AngelesLong Beach, Seattle and Charleston.41

Additional efforts to harden the border through the use of technology include

the following (see Appendix A for a description of each program):

Integration of Data Systems;

Integrated Surveillance Intelligence System (ISIS);

Operation Safe Commerce; and

Unmanned Aerial Vehicles (UAV).

Efforts to Make the Border More Accessible for

Legitimate Travel and Trade

The facilitation of legitimate cross-border travel and commerce, while still

providing for adequate border security, has long been a challenge for policy makers.

CBP inherited several initiatives aimed at using technology to help speed up the

inspection processes for low-risk travelers and goods, which allows CBP inspectors

to focus their attention on high-risk situations, as discussed below.

NEXUS/SENTRI

NEXUS and the Secure Electronic Network for Travelers’ Rapid Inspection

(SENTRI) are programs used at land ports of entry to facilitate the speedy passage

of low-risk, frequent travelers. NEXUS is located at selected northern ports of entry

while SENTRI is located at selected southwest ports of entry. Ports of entry are

selected based on the following criteria: (1) they have an identifiable group of lowrisk frequent border crossers; (2) the program will not significantly inhibit normal

traffic flow; and (3) there are sufficient CBP staff to perform primary and secondary

inspections. Travelers can participate in the program if: (1) they are citizens or

legally permanent residents of the United States, citizens of Mexico or Canada, or

legally permanent residents of Canada; (2) they have submitted certain

documentation and passed a background check; (3) they pay a user fee; and (4) they

agree to abide by the program rules.42

Both programs use an electronic identifier (e.g., a proximity card for NEXUS

participants or a radio transponder for SENTRI participants) that triggers an

automated system to review the Interagency Border Inspection System (a background

check system) and other records related to the vehicle and its designated passengers

once the vehicle enters the NEXUS or SENTRI lane. While NEXUS and SENTRI

lanes are not at all land border crossings, efforts are underway to implement them at

additional land border crossings.

R.G. Edmonson, “United States launches ‘smart box’ testing,” The Journal of Commerce

Online, Nov. 20, 2003, accessed at [http://www.joc.com].

See 8 CFR §286.8.

CRS-15

Free and Secure Trade

The Free and Secure Trade (FAST) program is a joint U.S.- Canada and U.S. Mexico initiative that is aimed at expediting commerce across both the Southwest

and the Northern border. FAST offers pre-approved importers, carriers, and

registered drivers an expedited processing through land ports of entry. FAST is

available to “low-risk” participants who have a demonstrated history of compliance

with relevant legislation and regulations. Importers and carriers must be C-TPATcertified in order to participate; carriers must also be approved as FAST Highway

carriers; and drivers must possess a FAST Commercial Driver Card. In order for a

shipment to be processed across the border as a FAST shipment, each of the parties

involved must be FAST-certified, and less-than-truckload FAST shipments cannot

be consolidated with non-FAST shipments and be processed through the FAST lanes

at the border. While FAST lanes are not at all land border crossings, efforts are

underway to implement them at additional land border crossings. FAST is also an

harmonized clearance process, in that it operates in both directions across the

Northern border (shipments exported from the United States into Canada can also be

processed through the Canadian version of FAST: Partners in Protection).

Additional efforts to make the border more accessible for legitimate travel and

trade include the following (see Appendix A for a description of each program):

INS Passenger Accelerated Service System (INSPASS) and

I-68 Canadian Border Boat Landing Program / Outlying Area

Reporting Station (OARS)

In addition to technology used to facilitate legitimate travel and goods across the

border by way of a vehicle, DHS also inherited programs designed to facilitate

legitimate travel of certain groups of people. An example of such a program is the

Visa Waiver Program, as discussed below, and the Laser Visa (Mexican Border

Crossing Card). (See Appendix A for a discussion of the Laser Visa).

Visa Waiver Program (VWP)43

The VWP allows nationals from certain countries to enter the United States as

temporary visitors for business or pleasure without first obtaining a visa from a U.S.

consulate abroad.44 By eliminating the visa requirement, this program facilitates

international travel and commerce and eases consular office workloads abroad, but

it also bypasses the first step by which foreign visitors are screened for admissibility

to enter the United States. Travelers under the VWP do not need a visa, and thus no

background checks are done prior to their arrival at U.S. ports of entry, which allows

only one opportunity — immigration inspection at the port of entry — to identify

inadmissable aliens. While this program facilitates travel, questions have been raised

This section was taken from CRS Report RL32221, Visa Waiver Program, by (name

redacted).

The Attorney General in consultation with the Secretary of State, using criteria

established by Congress, determines which countries may participate in the program.

CRS-16

about the VWP being a potential loophole for terrorists. Of concern to some is the

delay in issuing nationals from the participating countries passports that contain

biometric identifiers, although this concern may have abated since the Administration

is now requiring foreign nationals entering the United States through the VWP to be

enrolled in the U.S.-VISIT program.45

Strengthening the Border Through More Effective

Use of Intelligence46

Intelligence plays an essential role in the protection of U.S. national security,

one element of which is to contribute to the protection of U.S. borders. As with

traditional foreign intelligence,47 the primary role intelligence plays in the context of

border security is to provide indications and warnings to government personnel

responsible for border protection — primarily DHS personnel. Regardless of where

the intelligence is collected — domestically or internationally — intelligence

contributes to the protection of U.S. borders by seeking to prevent certain goods and

individuals from crossing U.S. borders. However, as the tragic events of September

11, 2001, demonstrated, even when intelligence systems and mechanisms are in place

to prevent individuals with inimical intent from crossing U.S. borders, it only takes

one failure of the intelligence process and/or individuals involved in it, to contribute

to a potential catastrophe.48 Traditional foreign intelligence as well as criminal

intelligence contribute to enhancing border security.

At the most basic level, intelligence is designed to find where the danger lies.

With respect to protection of the U.S. borders, the primary goal is to collect, analyze

and rapidly disseminate intelligence that can deny entry into the United States of

terrorists or dangerous material that could be used as a weapon by terrorists. With

respect to terrorists, one of the most useful tools in the government’s

counterterrorism arsenal for border protection is the Terrorist Screening Database

(TSDB) first compiled by the Terrorist Threat Integration Center.49 As a testament

While Congress set a deadline of Oct. 26, 2004 for all VWP countries to issue passports

that contain biometric identifiers to their nationals in order to continue participation in the

program, the deadline was moved back by one year due to concerns with respect to the time

it would take for the countries to be able to meet the mandate.

This section was written by CRS Specialist (name redacted).

Foreign intelligence is defined as “... information relating to the capabilities, intentions

and activities of foreign powers, organizations or persons, but not including

counterintelligence, except for information on international terrorist activities.” See Part

3.4d, Executive Order 12333, “United States Intelligence Activities,” Dec. 4, 1981.

Both the Joint Inquiry Into Intelligence Community Activities Before and After the

Terrorist Attacks of September 11, 2001 (Dec. 2002), and the Final Report of the National

Commission on Terrorist Attacks Upon the United States (July 2004) found that there were

various missed opportunities with respect to the lack of “watchlisting” of three of the 19

hijackers (Khalid al-Midhar, as well as brothers Salem and Nawaf al-Hazmi).

Although it is now commonplace to hear public policy arguments about the integration

(continued...)

CRS-17

to the robust role that traditional foreign intelligence entities are playing in the

protection of border security, of the more than 20,000 records in the Terrorist

Screening Database in 2004, the Central Intelligence Agency provided just over 42%

of the entries, the State Department provided almost 42%, the National Security

Agency provided 10%, the Federal Bureau of Investigation almost 4%, and the

Defense Intelligence Agency just under 3%.50 At the sensitive but unclassified (SBU)

security level, the TSDB is then shared broadly across the U.S. government, to

include agencies such as the DHS, the Federal Bureau of Investigation (and the FBIled Terrorist Screening Center), the Department of Justice-led Foreign Terrorist

Tracking Task Force51), the Department of Defense, as well as the Department of

State, among others. A “hit” on the TSDB will trigger certain protective actions by

the law enforcement, intelligence or security personnel having interaction with the

individual.

With respect to protection against illicit cargo coming into the United States and

the potential for shipping to be used as a conveyance of weapons of mass destruction,

one of the unique tools being used by DHS’s CBP is its Automated Targeting

System. With shipments into the United States in the thousands of containers per

day, it is not practically or financially feasible to inspect each container. Building on

years of experience in interdicting drugs being shipped into the United States through

cargo containers, DHS’s CBP established the interagency-supported National

Targeting Center (NTC) as a tool to triage and effectively target cargo containers for

inspection. Working with the intelligence community and law enforcement

community personnel, the NTC’s Automated Targeting System develops dynamic

rules and algorithms which allow it to examine a broad scope of passenger and cargo

factors to assign appropriate risk scores. Certain risk scores flag a shipment or

container for human inspection.

In short, intelligence serves as a force multiplier in contributing to the protection

of U.S. borders. It serves the direct purpose of providing advance warnings to alert

officials on the front lines of U.S. borders. However, its indirect use may be equally

valuable. That is why domestic intelligence officials, including those at the state and

(...continued)

of various terrorist watchlists, historically, there was one watchlist which had as its singular

purpose, preventing known or suspected terrorists from entering the country. This watchlist,

initiated by the U.S. Department of State’s Bureau of Intelligence and Research (INR) in

1987 to assist the Bureau of Consular Affairs in making decisions about granting visas, was

known as “TIPOFF.” Pursuant to Homeland Security Presidential Directive-6, elements of

the TIPOFF database have been transferred to the Terrorist Threat Integration Center

(TTIC). In turn, TTIC and its databases will be incorporated in the new National CounterTerrorism Center, which was statutorily created by P.L. 108-458.

See Testimony of Russell E. Travers, Deputy Director for Information Sharing and

Knowledge Development, the Terrorist Threat Integration Center, Before the National

Commission on Terrorist Attacks Upon the United States, Washington, Jan. 26, 2004.

These figures as of Jan. 8, 2004.

The Terrorist Screening Center and the Foreign Terrorist Tracking Task Force have the

dual mission of denying known or suspected terrorists entry into the United States and,

should they gain entry to the United States, to locate, prosecute or deport any such aliens.

CRS-18

local levels, collect intelligence within their communities to put international terrorist

activities into a local context. It is also why experts believe there needs to be a wide

access to information that may not seem to be relevant in a national context, yet may

prove what’s happening in Sanaa, Yemen, may be directly or indirectly relevant and

valuable to state and local law enforcement and intelligence personnel on the ground.

Multiplying Effectiveness Through Engagement of

Other Key Actors in Enforcement52

While border security policies may not have received heightened attention until

after the terrorists attacks, efforts to improve border management date back to 1995.

For example, the United States and Canadian governments entered into a joint accord

on February 24, 1995 called Our Shared Border. The 1995 accord brought together

five agencies (the former United States INS, the former U.S. Customs Service,

Revenue Canada, Citizenship and Immigration Canada, and the Royal Canadian

Mounted Police) to focus on joint border issues such as enhancing security through

more effective inspection efforts that target specific problem areas (e.g., drugs, and

smugglers), and the continued commitment to pool inspection and enforcement

resources. And in 1999, the two countries entered into a partnership, Canada-U.S.

Partnership Forum (CUSP). CUSP provided a mechanism for the two governments,

border communities and stakeholders to discuss issues of border management. The

guiding principles for U.S.-Canada cooperation resulting from these dialogues are as

follows:

Streamline, harmonize and collaborate on border policies and

management;

Expand cooperation to increase efficiencies in customs,

immigration, law enforcement, and environmental protection at and

beyond the border; and

Collaborate on common threats from outside the United States and

Canada.

Current bilateral efforts include a declaration signed on December 12, 2001, by

the United States and Canadian governments establishing a “smart-border.” The

declaration included a 32-point plan to secure the border and facilitate the flow of

low-risk travelers and goods through the following:

Coordinated law enforcement operations (i.e., IBETS, see Appendix

A);

Intelligence sharing;

Infrastructure improvements;

The improvement of compatible immigration databases;

Visa policy coordination;

Programs and policies discussed under other headings or listed in Appendix A are also

examples of multiplying effectiveness through the engagement of other actors (see for

example, preinspections, CCP, CSI, C-TPAT, FAST, IBETS, ISI, and NEXUS).

CRS-19

Common biometric identifiers in certain documentation;

Prescreening of air passengers;

Joint passenger analysis units; and

Improved processing of refugee and asylum claims, among other

things.

On December 3, 2001, the two countries signed a joint statement of cooperation

on border security and migration that focused on detection and prosecution of

security threats, the disruption of illegal migration, and the efficient management of

legitimate travel.

In March 2002, the United States and Mexico announced a partnership to create

a new, technologically advanced “smart border” to assure tighter security while

facilitating legitimate travel. The U.S.-Mexico Border Partnership Action Plan has

22 points that include greater cooperation between the two governments in order to

better secure border infrastructure and facilitate the flow of people and goods

between the countries. The plan also calls for the development of integrated

computer databases between the two countries and express lanes at high volume ports

of entry for frequent, pre-cleared low-risk travelers.53

In addition to the bilateral agreements between the U.S./Canada and the

U.S./Mexico, the United States has begun working with the European Union (EU)

to facilitate cooperation on the CSI, as discussed above. On November 18, 2003, the

United States and EU signed an agreement that would facilitate such cooperation by

establishing an EU-wide container security policy.54

The Construct Illustrated Using Selected Programs

Figure 1 maps some of the current policy approaches discussed in this report.

For example, illustrations of “pushing the border outward” in order to intercept

unwanted people and goods before they reach the United States include CBP’s and

FDA’s advance manifest rules; the Coast Guard’s 96-hour rule; the CSI; and

passenger pre-inspection at foreign airports. Examples of “making the border more

accessible for legitimate travel and trade” include the C-TPAT; FAST; and the

NEXUS/SENTRI trusted traveler/frequent crosser programs. Examples of

“multiplying effectiveness through the engagement of other actors” include C-TPAT;

CSI; FAST; NEXUS; and passenger pre-inspection.

See [http://www.whitehouse.gov/infocus/usmxborder/22points.html].

Intellibridge Global Intelligence Solutions, “EU, United States Announce Agreement to

Facilitate Cooperation on Container Security,” Homeland Security Monitor, Nov. 19, 2003;

and BNA, “EU, United States Reach Commitment to Establish Security Standards for TransAtlantic Freight,” International Trade Reporter, vol. 20, no. 47, Nov. 27, 2003.

CRS-20

Figure 1. Movement of Goods and People

Movement of Goods

C-TPAT

! Warehouse

! Consolidation

Center

! Intermodal

Exchange

! Intermodal

Infrastructure

Transshipment

Port/Operator

FPOE

DPOE

! Warehouse

! DeConsolidation

Center

Customs

! Intermodal

Exchange

! Intermodal

Infrastructure

Customs

CSI

Factory

Manu.

Shipper ! Buying agent

! Transport

Operator

! Freight

Forwarder

Transport

Operator

Port

Operator

Port

Operator

Known Shipper

Buyer

FAST

Advance Manifest

Rules

! Customs Broker

! Deconsolidator

! Transport Operator

96-Hour

Rule

! Consolidator

! NVOCC

! Bank

OSC-vessel

Movement of People

FPOE

Consular

Office

(issuance of

travel

documents)

Advance Passenger

Manifest Information

DPOE

* Immigration

Pre-Inspection

US-VISIT &

Immigration

Inspection

* Immigration

Security

Initiative

NEXUS

SENTRI

Arrival &

Departure

Information

System

(automates

I-94 form)

Source: CRS and CRS analysis of OECD figures in Security in Maritime Transport.

Note: FPOE = foreign port of exit, and DPOE = domestic port of entry.

CRS-21

Conclusion

Balancing security with trade and travel may require a “layered approach” to

attain both goals. The next report in this series, Border and Transportation Security:

Possible New Directions and Policy Options, examines the concept of layering and

how it may fit into BTS. The current programs and policies in place, however, do

reflect some layering. For example, the framework set forth in this report highlights

the purposeful overlapping of programs and policies in order to attain BTS. Efforts

to push the border outwards are aimed at preempting potential attacks and preventing

individuals who are trying to surreptitiously enter the United States. The various

preinspections and advance passenger/cargo notice programs were developed with

this in mind. If someone, however, is able to penetrate the first layer of security then

efforts to harden the border are put to the test. The use of biometric identifiers in

travel documents and smart containers for the shipment of goods are both examples

of how technology is being used to harden the border. In addition to efforts to harden

the border, the use of intelligence and engaging other actors such as state and local

law enforcement and our foreign neighbors are other cumulative measures that have

been taken to attain better BTS.

While the programs and policies highlighted in this report may reflect an

attempt at layering, some contend that there are still gaps in the system.55 The current

programs and policies were either put into place as a result of the 9/11 terrorist

attacks or predated the attacks. Those programs and policies that were put into place

as a result of the attacks were done so with a sense of urgency — to prevent another

attack. Programs and policies already in existence prior to the attacks, however, were

created with a different focus and not necessarily with the goal of keeping terrorists

out of the country. As will be examined in the next report, current efforts to provide

a layered approach to BTS would mean applying some measures of security effort to

almost every point of vulnerability or opportunity.

As noted earlier, this report is one of a series of three CRS reports that address

the issue of BTS. The first report in the series, CRS Report RL32839, Border and

Transportation Security: The Complexity of the Challenge, analyzes the reasons why

BTS is so difficult to attain. This report is the second in the series. The final report

is CRS Report RL32841, Border and Transportation Security: Possible New

Directions and Policy Options.

See for example, Stephen Flynn, America The Vulnerable: How Our Government Is

Failing to Protect Us From Terrorism (New York, N.Y.: HarperCollins Publishing), 2004.

CRS-22

Appendix A: Selected Additional BTS Programs

Carrier Consultant Program (CCP).

Sometimes referred to as

prescreening, the CCP was originally developed in the former INS. Working with

officials from the Department of State, CBP deploys officers to work with air carriers

to preempt attempts to use those carriers to gain illegal entry into the United States

using fraudulent documents. In doing so, CCP officials work towards eliminating the

arrival of improperly documented aliens at a U.S. port of entry prior to their departure

from the foreign port. At domestic airports, CCP officials work with airlines in

identifying any illegal or suspect activity involving the carrier, primarily related to

the use of fraudulent documents. While the goal of CCP is to reduce illegal

migration, the program has received heightened attention in this post 9/11 era.

I-68 Canadian Border Boat Landing Program/Outlying Area

Reporting Station (OARS). The I-68 Canadian Border Boat Landing Program

permits enrolled participants admission to the United States by small pleasure boats

without an inspection. The program requires applicants56 to appear in person for an

inspection and interview. During the inspection/interview process, applicants names

are checked against the IBIS and biometrics are collected. Upon approval,

participants are issued a boating permit for the season that allows them to enter the

United States from Canada without submitting to an inspection.

OARS allows travelers of small boats who are not in possession of a valid I-68

form to enter the United States via Canada without presenting themselves for

inspections. Travelers can use one of the 33 OARS videophone stations upon entry

into the United States.57 The stations are located at public marinas along the

Canadian border and provide automated inspections through a two-way visual and

audio communication between the person and the remote inspector.

Immigration Security Initiative (ISI). Like CCP, ISI was originally

developed in the former INS. CBP is now piloting ISI at several foreign airports. ISI

relies on CBP inspectors positioned at foreign airports to intercept people who have

been identified as national security threats from traveling to the United States ISI has

been compared to CBP’s CSI, discussed above, which targets high risk containers for

inspections.

Integrated Border Enforcement Teams (IBETS). IBETs are bi-national,

multi-agency law enforcement teams that target cross-border criminal activity.

Although IBETS were originally created in 1996 along the British Columbia and

Washington state border to target cross-border crimes that usually involved illicit

drug violations, the terrorist attacks have prompted officials in both countries to

expand IBETs role to include counterterrorism measures.

U.S.-Canadian citizens, legal permanent residents of the United States or landed

immigrants of Canada can participate in the program.

The phones are two-way visual and audio between the inspector and the applicant for

admission.

CRS-23

INS Passenger Accelerated Service System (INSPASS). INSPASS is

used at selected international airports.58 It is a form of pre-inspections for low-risk,

frequent travelers.59 INSPASS records a biometric geometry (of the hand) for each

enrollee that is verified when the traveler inserts his card. Upon arrival at an airport

that has INSPASS, enrollees proceed to an INSPASS kiosk where they access an

automated hand geometry reader. Upon approval by the kiosk, the traveler receives

a receipt of his inspection. INSPASS applicants must enter the United States on

certain nonimmigrant visas60 or under the Visa Waiver Program.61

Integration of Data Systems. CBP officials use several data systems and

databases that assist them with identifying aliens who are potentially inadmissible

under the Immigration and Nationality Act or otherwise may pose a threat to the

country. CBP officials also utilize several data systems and databases with respect

to identifying high-risk commercial goods that warrant further inspection or review.

Of concern are the numerous data systems and databases that are not integrated or not

readily accessible. Critical to the success of border security is the ability to process

information in real time.

The legacy Customs Service and now CBP have been engaged in a long-term

effort to develop a new automated system to process and track the entry of all goods

into the country. The Automated Commercial Environment (ACE) will utilize webbased electronic accounts to provide information regarding cargo inspections, status

of clearance and other information to CBP and account users.

Integrated Surveillance Intelligence System (ISIS). Along the northern

and southwest borders, the border patrol uses ISIS as a surveillance tool. ISIS is

comprised of remote video surveillance cameras that are mounted on top of towers,

which are remotely monitored. According to CBP, “one camera uses natural light

and takes traditional video images; the other uses ‘infrared’ imaging for night

vision.”62 ISIS also consists of sensors and an Integrated Computer Assisted

Detection (ICAD) database.

Known Shipper Programs. The Transportation Security Administration

uses a program that differentiates trusted shippers that are known to a freight

forwarder or air carrier through prior business dealings, from unknown shippers.

According to CBP, “INSPASS is currently operational at six international airports: Los

Angelas, CA; Newark, NJ; JFK, NY; Washington-Dulles, VA; and the U.S. preclearance

sites at Vancouver and Toronto in Canada,” [http://www.cbp.gov/linkhandler/cgov/travel/

frequent_traveler/inspass.ctt/inspass.doc].

Citizens of the United States, Canada, Bermuda, and participants in the Visa Waiver

Program who travel to the United States on business three or more times a year, or are

diplomats, representatives of international organizations, or airline crew members from

VWP countries are eligible to enroll in INSPASS.

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

transferee).

See CRS Report RL32221, Visa Waiver Program, by (name redacted).

See [http://www.cbp.gov/xp/CustomsToday/2003/august/cameras.xml].

CRS-24

Under such a program, shipments from unknown sources are identified and placed

under closer scrutiny.63

Laser Visa (Mexican Border Crossing Card). Mexican nationals

applying for admission to the United States as visitors are required to obtain a visa

or hold a Mexican Border Crossing Card, now referred to as the “laser visa.” The

laser visa 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 ten years. Under current practices, Mexican nationals in possession of a

laser visa will be exempt from the requirements of the U.S.-VISIT program, thus

allowing for a speedy passage into the United States.

North American Security Perimeter. As the United States moves forward

with implementing much of the security requirements in the PATRIOT Act and the

Border Security Act, many fear that the tighter security requirements will impede the

flow of people across the border. Some critics are advocating for a more open

border. The ideal of a North American Perimeter Security concept has been around

for several years and the basic premise of a North American Perimeter Security

would move inspections and enforcement activities away from the border. Such a

concept would essentially eliminate barriers to the movement of people (and goods)

across the shared border. P.L. 107-173 called for a study to examine the feasibility

of establishing a North American Perimeter Security program that would provide for

increased cooperation with foreign governments on questions related to border

security. The North American Perimeter Security, however, would require the

harmonization of United States and Canadian immigration and refugee policies,

among other things. While such a harmonization of policies may be problematic

following the events of 9/11, both countries have begun to harmonize other policies

at incremental levels that could be viewed as “pushing the border out” (i.e.,

preinspections and reverse inspections).

Operation Safe Commerce (OSC). OSC is a pilot program that brings

together private businesses, the maritime industry and the government to analyze

security procedures and practices for cargo entering the country and develop

improved methods for securing the supply chain. OSC’s goal is to protect the global

supply chain while facilitating the flow of commerce by identifying potential supply

chain security weaknesses.

Unmanned Aerial Vehicles (UAV). In 2004 DHS launched an initiative,

dubbed the Arizona Border Control (ABC) Initiative that uses technology such as the

UAV to increase border surveillance along the Arizona/Mexico border. Currently,

the border patrol is piloting two UAVs along the Arizona and Mexico border.

See CRS Report RL32022, Air Cargo Security, by Bartolomew Elias.

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