Department of Homeland Security: Consolidation of Border and Transportation Security Agencies
Report for Congress
Department of Homeland Security: Consolidation
of Border and Transportation Security Agencies
Updated May 22, 2003
Jennifer E. Lake
Analyst in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Department of Homeland Security: Consolidation of
Border and Transportation Security Agencies
The Homeland Security Act of 2002 (P.L. 107-296) transferred several border
and transportation security agencies to the newly established Department of
Homeland Security (DHS), which became operational March 1, 2003, consolidating
some of them in a Directorate of Border and Transportation Security. The Act
charges this new directorate with securing the borders; territorial waters; terminals;
waterways; and air, land and sea transportation systems of the United States; and
managing the nation’s ports of entry. As in the past, the challenge for policymakers
is to provide a level of border and transportation security that is commensurate with
a multitude of threats, while facilitating legitimate travel and commerce, as well as
protecting civil liberties.
The success of the Directorate will depend in large measure on the effective and
expedited coordination of transferred agencies and programs; development of a
unified strategic vision for departmental and directorate operations; leverage of new
and existing technologies to improve threat detection, but facilitate legitimate cross
border travel and trade; adequate funding and staffing; efficient deployment of
resources; and successful implementation of recently enacted border, port, and
transportation security-related legislation.
The agencies transferred to the Directorate of Border and Transportation
Security include the U.S. Customs Service, the enforcement programs of the former
Immigration and Naturalization Service (INS), the border and inspection programs
of the Animal and Plant Health Inspection Service, the Transportation Security
Administration, the Federal Protective Service, the Federal Law Enforcement
Training Center, and the Office for Domestic Preparedness. The new Department
recently announced the realignment of border management and security functions by
establishing two bureaus in the directorate; unifying commercial operations,
inspections, and land border patrol functions in one; and investigations, alien
detention and removal, air/marine drug interdiction operations, and federal protective
services in the other. The Coast Guard and the citizenship/services programs of INS
have been transferred to the Department of Homeland Security as a stand-alone
agency and bureau, outside of the directorate. Nonetheless, their activities will need
to be closely coordinated with the new directorate.
This report includes conceptual definitions for “border management” and
“border security;” descriptions of the missions of the principal border management
agencies; brief discussion of seaport and transportation security, since both are
integral to border security; and a brief exploration of issues raised by transferring the
Federal Protective Service, the Office for Domestic Preparedness, and the Federal
Law Enforcement Training Center to this new directorate. The report concludes with
an analysis of issues concerning the consolidation of various border and
transportation security agencies in the new Department of Homeland Security. This
report is intended as an analysis of border and transportation security issues attached
to the creation of the Department of Homeland Security. While some of these issues
may persist, this report will not be updated.
Agency StaffPhone #
Immigration and Naturalization ServiceRuth Wasem707-7342
Bureau of Consular Affairs (CA)Susan Epstein707-6678
Ruth Wasem (visas only)707-7342
U.S. Customs ServiceJennifer Lake707-0620
Animal and Plant Health InspectionJim Monke707-9664
U.S. Coast Guard Martin Lee707-7260
Seaport SecurityJohn Frittelli707-7033
Transportation Security AdministrationBart Elias707-7771
Federal Protective Service (FPS)Elaine Halchin707-0646
Federal Law Enforcement TrainingWilliam Krouse707-2225
Office for Domestic PreparednessBen Canada707-0632
Most Recent Developments......................................1
Border Management and Transportation Security.....................3
Border Management and Security.............................3
Consolidating Border and Transportation Security Missions........4
Building Security, Law Enforcement Training,
and Terrorism Preparedness..............................5
INS, Consular Affairs, and Immigration Policy.......................5
The Former Immigration and Naturalization Service (INS).........6
Consular Affairs (CA): Visa and Passport Issuance...............9
Customs Service and International Trade..........................11
Animal and Plant Health Inspection Service (APHIS)................13
Coast Guard and Maritime Security...............................15
Background Information on the Coast Guard...................15
Seaport Security Legislation................................16
Transportation Security: An Evolving Federal Activity...............17
Federal Building Security......................................18
Federal Law Enforcement Training Center.........................19
Office for Domestic Preparedness................................20
Issues for Congress...........................................21
Expeditious Consolidation of Agencies and Functions............21
Integration and Strategic Focus..............................21
Border Security and Technology.............................22
Adequate Funding and Staffing..............................22
Efficient Deployment of Resources...........................22
Coast Guard and Inter-Departmental Coordination...............23
Federal Building Security..................................23
Federal Law Enforcement Training...........................23
Department of Homeland Security:
Consolidation of Border and Transportation
This report examines the consolidation of certain federal agencies charged with
border and transportation security within the newly established Department of
Homeland Security, which became operational March 1, 2003. It also includes
conceptual definitions for “border management” and “border security;” descriptions
of the principal border management missions; brief discussions of seaport and
transportation security, since both are integral to border security; and a brief
exploration of issues raised by transferring the Federal Protective Service, the Office
for Domestic Preparedness, and the Federal Law Enforcement Training Center to this
new directorate. The report concludes with an analysis of issues concerning the
consolidation of various border and transportation security agencies in the new
Department of Homeland Security. This report is intended as an analysis of border
and transportation security issues attached to the creation of the Department of
Homeland Security. While some of these issues may persist, this report will not be1
Most Recent Developments
The Senate confirmed the nomination of former Congressman and head of the
Drug Enforcement Administration, Asa Hutchinson, as Under Secretary for the
Border and Transportation Security Directorate, the Department of Homeland
Security, on January 23, 2003.
The Department of Homeland Security released a fact sheet on January 30,
2003, outlining the establishment of two bureaus under the Border and
Transportation Security Directorate by realigning several border management and
!The Bureau of Customs and Border Protection is to be established
by unifying the Customs Service’s commercial operations and
inspection programs, the immigration inspection and Border Patrol
programs, and the agricultural quarantine and inspection program.
!The Bureau of Immigration and Customs Enforcement is to be
established by consolidating the Customs and immigration
1 This report was originally coordinated by William J. Krouse.
2 For further information on this realignment of border management and security functions,
click on [http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0073.xml].
investigation programs, the Customs air and marine drug interdiction
program, the immigration detention and removal program, and the
Federal Protective Service.
The former will be headed by a Customs Commissioner, the latter by an Assistant
Secretary.3 As a result, the Border and Transportation Security Directorate will
include these bureaus, along with the Transportation Security Administration, the
Office for Domestic Preparedness, and the Federal Law Enforcement Training
Center. A more detailed discussion of these realigned border functions and other
related matters is included in the body of this report.
Congress has passed the Homeland Security Act of 2002,4 establishing a cabinet
level Department of Homeland Security (DHS),5 and within that department, a
Directorate of Border and Transportation Security (DBTS).6 The Homeland Security
Act charges the DBTS with securing the borders; territorial waters; terminals;
waterways; and air, land and sea transportation systems of the United States; and
managing the Nation’s ports of entry. As in the past, the challenge for policymakers
is to provide a level of border and transportation security that is commensurate with
a multitude of threats, while facilitating legitimate travel and commerce, as well as
protecting civil liberties. An immediate challenge for the 108th Congress will be to
work with the Administration to get the new department, including DBTS,
operational at a time when threats to borders and transportation systems are real and
To better position federal agencies to prevent terrorists from entering, and
smuggling “instruments of terror” into, the United States, and from attacking U.S.
transportation systems, the Homeland Security Act transfers to the Directorate of
Border and Transportation Security the following agencies and programs: (1) the
U.S. Customs Service, (2) the enforcement programs of the former Immigration and
Naturalization Service (INS), (3) the border-related inspection programs of the
Animal and Plant Health Inspection Service, (4) the Transportation Security
Administration, (5) the Federal Protective Service, (6) the Federal Law Enforcement
Training Center, and (7) the Office for Domestic Preparedness. The Act transfers to
the new department, but not to the new directorate, the Coast Guard and the
citizenship/services programs of INS as a stand-alone agency and bureau,
respectively. Nonetheless, the activities of the Coast Guard and Bureau of
3 For further information on departmental management structure, see CRS Report RL31492,
Homeland Security: Management Positions for The New Department, by Henry B. Hogue.
4 P.L. 107-296; 116 STAT. 2135.
5 For further information on departmental-wide considerations and issues, see CRS Report
RL31493, Homeland Security: Department Organization and Management, by Harold C.
6 For further information on departmental structure, see CRS Report RS21366, Department
of Homeland Security: Hypothetical Organization Chart, by Sharon S. Gressle.
Citizenship and Immigration Services will need to be closely coordinated with the
The success of the new Department of Homeland Security and its Border and
Transportation Security Directorate will depend in large measure on the development
of a unified strategic focus for directorate operations; effective and expedited
coordination of transferred agencies and programs; leverage of new and existing
technologies to improve threat detection; development of new inspection and
compliance processes with an eye on security and facilitation of legitimate travel and
trade; adequate funding and staffing; efficient deployment of resources; and
successful implementation of recently enacted border, port, and transportation
Border Management and Transportation Security
In the past, there have been many proposals to reorganize border management
agencies prompted by concerns about illegal immigration and international drug
trafficking.7 The threat of terrorism, however, prompted the establishment of a
Department of Homeland Security (DHS) and its Directorate of Border and
Transportation Security (DBTS) that integrates border management agencies. Today,
policy makers confront the real possibility that the World Trade Center and Pentagon
attacks were not “singular” events, and that international terrorists have planned, will
attempt, and may successfully carry out, attacks of similar magnitude against the
United States in the future. At the same time, trade experts emphasize that shutting
down borders in the event of a terrorist attack on the United States would have
detrimental and possibly catastrophic effects on the national and world economies.8
Hence, the security and livelihood of the United States depends more than ever upon
how efficiently federal agencies charged with border management achieve their
Border Management and Security. Border management entails regulating
the flow of people and goods into the United States and, in some instances, from the
United States. Border security is derived from how well border management
agencies perform their missions. That entails not only effective law enforcement in
some cases, but also prompt, efficient, and courteous service to the traveling public.
Over the past half-century, border management evolved as a balancing act between
facilitating legitimate cross border commerce and travel, and deterring illegal
immigration and the smuggling of drugs and other contraband.
Even before the September 11 terrorist attacks, border management was
emerging as a public policy area of growing concern for Congress. The Canadian
and North American free trade agreements created a perception, among some
observers, that some international borders were anachronistic, that they belonged to
an earlier era of nationalism, and that their usefulness was rapidly diminishing.
7 For further information on past attempt at border reorganizations, see CRS Report 97-974,
Reorganization Proposals for U.S. Border Management Agencies, by Frederick M. Kaiser.
8 Michael O’Hanlon, et al., Protecting the American Homeland, The Brookings Institution,
Washington, 2002, p. 25.
While these agreements fostered international trade, they did not cause the borders
to disappear nor was that an intention. Instead, the borders became in some ways
more prominent as increased trade and travel outpaced the institutions and
infrastructures set up to accommodate and regulate those activities. From 1985 to
2000, for example, trade between the United States and Canada increased from
$116.3 to $409.8 billion, yet the number of Customs inspectors on the northern
border reportedly decreased by about 25%.9
Despite significant increases in resources (mostly deployed to the southern
border), particularly for INS’s Border Patrol, an unauthorized immigrant population
of an estimated 7 to 9 million people10 and the continuing availability of illegal drugs
of foreign origin11 were and continue to be clear indicators that current federal border
management efforts have had mixed results to date. Critics of the status quo pointed
to fragmented authorities, overlapping jurisdictions, duplicated efforts, and
Consolidating Border and Transportation Security Missions. The
Homeland Security Act of 2002 (P.L. 107-296) in effect makes counterterrorism the
central mission for agencies tasked with border and transportation security. Prior to
the Homeland Security Act, no single government entity was charged with border
management and transportation security. Rather, a handful of agencies was charged
with what might be considered core border management missions. Those agencies
included: (1) the U.S. Customs Service in the Department of the Treasury, (2) the
former Immigration and Naturalization Service (INS) in the Department of Justice,
and (3) the U.S. Coast Guard in the Department of Transportation. Many other
agencies, like the Bureau of Consular Affairs in the Department of State and the
Animal and Plant Health Inspection Service (APHIS) in the Department of
Agriculture, play integral roles in border management as well. Reportedly, at least
40 federal agencies are involved in some aspect of border management, since
Customs and other border management agencies enforce over 400 laws on behalf of12
Examination of the activities of these agencies indicates that federal border
management missions can be broadly classified into five overarching areas: (1)
immigration and nationality, (2) international trade, (3) environmental and health
quarantine, (4) port security, and (5) border and coastal patrol. As a sixth category,
9 Stephen E. Flynn, America the Vulnerable, Foreign Affairs, Jan./Feb. 2002, p. 66.
10 Steven Camarota, Census Bureau: Eight Million Illegal Aliens in 2000 (Finding Raises
Concern Over Border Control in light of Terrorist Threat), Center for Immigration Studies,
Washington, Oct. 24, 2001. [http://www.cis.org/articles/2001/censusrelease1001.html].
11 According to Federal-wide Drug Seizure System, federal authorities seized between 100
to 130 tons of cocaine per year for the last 5 years. According to DEA estimates, federal
authorities seized approximately 20% to 25% of the cocaine in transit to the United States,
either at the border or on the high seas.
12 Leslie A. Glick, Guide to Customs and Trade Laws After the Customs Modernization Act,
transportation security is evolving as a federal mission that overlaps, and possibly
dovetails, with border management missions as well.
The creation of the new Department and its Directorate of Border and
Transportation Security has raised questions among some analysts as to whether
addressing border security from the angle of counter-terrorism alone, without
considering other federal objectives, like stemming drug trafficking or facilitating
legitimate cross border commerce, is practical or reasonable. Clearly, a key
challenge for policymakers charged with establishing the new department and its
Directorate of Border and Transportation Security will be to develop an integrated
strategic border management and transportation security focus that effectively weaves
counterterrorism into other federal border management- and transportation security-
related goals and activities.13
Building Security, Law Enforcement Training, and Terrorism
Preparedness. The Homeland Security Act of 2002 also transfers several other
federal entities to the Directorate of Border and Transportation Security. They
include (1) the Federal Protective Service (FPS), formerly located in the General
Services Administration; (2) the Federal Law Enforcement Training Center (FLETC),
formerly located in the Department of the Treasury; and (3) the Office of Domestic
Preparedness (ODP), formerly located in the Office of Justice Programs at the
Department of Justice. The inclusion of FPS, FLETC, and ODP will increase the
new directorate’s responsibilities in the areas of federal building security, training
federal law enforcement officers, and providing state and local first responders with
training and assistance (with a special emphasis on terrorism preparedness). These
activities, however, are not viewed traditionally as falling under either border or
transportation security missions. On the other hand, locating them in the Directorate
of Border and Transportation Security gives that directorate a wider scope of
responsibility that may permit new approaches in the area of combating terrorism.
INS, Consular Affairs, and Immigration Policy14
U.S. immigration and nationality policy has historically balanced generous
principles with restrictive priorities. The generous principles emphasize the
reunification of families; the admission of immigrants with needed job skills; the
protection of refugees and asylees; the promotion of opportunities for cultural
exchange; the facilitation of trade, commerce, and diplomacy; and the diversity of
admissions by the country of origin. Another principle of immigration and
nationality policy is to provide immigrants an opportunity to integrate fully into
society. Along these lines, immigrants (legal permanent residents) usually have the
opportunity to become citizens through a process known as naturalization. The
restrictive priorities of U.S. immigration law focus on protecting public health and
welfare, national security, public safety, and labor markets.
13 U.S. Commission on National Security/21st Century. Roadmap for National Security:
Imperative for Change. (Washington, February 15, 2001). p. 156. Available at
14 This section was prepared by Ruth Wasem, Lisa Seghetti, Susan Epstein, and William
These principles and priorities are embodied in the Immigration and Nationality
Act (INA), first codified in 1952. It is noteworthy that there is a tension between the
generous principles and restrictive priorities of immigration law. This tension was
difficult to reconcile in the day-to-day operations of the two lead agencies charged
with managing the migration of non-citizens across U.S. borders–Justice’s
Immigration and Naturalization Service and the State Department’s Bureau of
Consular Affairs. This was in evidence as Congress considered proposals to
establish a Department of Homeland Security. While the Homeland Security Act
does not alter the fundamental tenets of U.S. immigration and nationality policy, the
Act abolishes INS, creating separate bureaus for immigration enforcement and
services. It vests the Secretary of Homeland Security with responsibility for issuing
regulations and policies related to visa issuance.15
The Former Immigration and Naturalization Service (INS). The
Homeland Security Act of 2002 (P.L. 107-296) dismantles the INS and transfers
immigration enforcement and service functions to DHS as two separate and distinct
bureaus. Proposals to split INS had been considered by Congress prior to the
homeland security debate.16 For FY2002, Congress provided INS with $6.2 billion,17
supporting 36,117 funded permanent positions. According to DOJ, the FY2002
budget included $4.0 billion (26,708 positions) for enforcement programs, over $1.4
billion (5,707 positions) for immigration services, and $730 million (3,702 positions)
for administration and support (shared services).18
The Homeland Security Act establishes a Bureau of Border Security (to be
headed by an Assistant Secretary) in the Directorate of Border and Transportation
Security; and it establishes a Bureau of Citizenship and Immigration Services (to be
headed by a Director) under the DHS Deputy Secretary’s office. The Act explicitly
prohibits the joining of these two bureaus into a single agency or the consolidation
15 For further analysis of the potential transfer of immigration functions and activities to a
new Department of Homeland Security, see CRS Report RL31560, Homeland Security
Proposals: Issues Regarding Transfer of Immigration Agencies and Functions, by Lisa M.
Seghetti and Ruth Ellen Wasem; and CRS Report RL31512, Visa Issuances: Policy, Issues,
and Legislation, by Ruth Ellen Wasem..
16 Preceding the homeland security debate, the Administration supported a restructuring plan
to split the agency’s service and enforcement programs within INS. On April 25, 2002, the
House passed a measure (H.R. 3231) that would have dismantled INS. On May 2, a similar,
but competing, measure (S. 2444) was introduced in the Senate. Both bills would have
established separate immigration services and enforcement bureaus. The Senate bill,
however, would have created an immigration director with overall statutory authority for
immigration policy. The House bill would have established an Associate Attorney General
for Immigration, but the statutory authority for immigration services and enforcement would
have devolved to the respective bureau directors.
17 It should be noted that any FY2002 numbers quoted throughout the text of this paper are
not actual final amounts reported for FY2002. These numbers represent amounts pending
at the time of the creation of the Department of Homeland Security, and are used for
illustration purposes only.
18 U.S. Department of Justice, 2003 Budget Summary, (Washington, winter 2002), p. 105.
of the functions or organizational units of these two bureaus.19 The Act also
establishes a Director of Shared Services under the Deputy Secretary’s Office.
Coordination and information sharing between these two separate bureaus will be
critical to the success of the Directorate’s management of border and transportation
security and the Department’s management of immigration and nationality policy.
Immigration Enforcement. Immigration enforcement functions – previously
carried out by INS – include the following: (1) patrol of the border between ports of
entry; (2) inspection of travelers seeking entry into the United States at ports of entry;
(3) investigation of violations of immigration law both at the border and within the
interior of the United States; (4) detention and removal of non-citizens found to be
in violation of immigration law; and (5) the collection of intelligence concerning
immigration-related illegal activities. The Homeland Security Act transfers all
former INS enforcement functions to the Bureau of Border Security, in the DHS
Directorate for Border and Transportation Security.
Between ports of entry, the U.S. Border Patrol, formerly a division of INS,
enforces U.S. immigration law and other federal laws at the border. Border Patrol
agents often apprehend drug smugglers and others engaged in criminal activities, but
the principal focus of the Border Patrol has been to stem illegal immigration,20 by
compelling border crossers to present themselves for inspection at a designated port
of entry. At ports of entry, immigration inspectors – formerly attached to INS –
examine and verify the travel documents of international travelers to determine their
eligibility to enter the United States.21 Unlike other immigration enforcement
functions, the inspections function includes service-related activities as well. For
example, immigration inspectors are often the first line of contact with the traveling
public, including non-citizens seeking to enter the United States for the first time.
On the other hand, immigration inspectors screen foreign travelers by checking
border lookout systems to determine whether they are listed as known terrorists or
supporters of terrorist organizations.22
Special agents investigate immigration violations at the border, since neither the
Border Patrol nor immigration inspections has a criminal investigations capability,
and in the interior of the United States, as well. Such investigations include
identifying criminal aliens for removal, immigration-related document and benefit
fraud, alien smuggling, and employer sanctions. Federal law prohibits employers
from knowingly hiring aliens who are unauthorized to work in the United States.
19 Section 471(b) of P.L. 107-296.
20 Over 90% of Border Patrol agents are deployed on the Southwest border.
21 According to the INS Statistics Office, INS inspectors screened about 511 million persons
for entry (approximately 36% citizens and 64% non-citizens) in FY2001. The non-citizens
they found inadmissible number in the hundreds of thousands, but represented less than
22 In the INS budget, inspections was considered an enforcement program, but
organizationally inspections was considered an examinations or service program. The
Homeland Security Act transfers the immigration inspections program to the Bureau of
Border Security, in the DHS Directorate of Border and Transportation Security.
Immigration special agents, inspectors, and Border Patrol agents participate in
interagency task forces, like the Joint Terrorism Task Forces, since only an
immigration officer can determine immigration and nationality status, as opposed to
a U.S. Marshal or FBI agent.23 In addition, a small number of immigration special
agents are stationed abroad.
Immigration officers also oversee the detention and removal of non-citizens –
many of whom cannot be released under the law until removed from the United
States. In recent years, INS had come under intense criticism for not expeditiously
deporting criminal aliens. Despite increased funding, INS officials had maintained
that the agency did not possess sufficient detention capacity to comply with the law.
Furthermore, immigration officers collect intelligence in regard to illegal
immigration-related activities, such as alien smuggling or large-scale document and
benefit fraud. Such intelligence is often useful to other federal law enforcement
agencies, as well.
It is notable that immigration enforcement and service functions are linked. For
example, immigration inspectors routinely query application processing databases
maintained by former INS service programs in order to determine the immigration
status of applicants for admission at international ports of entry. Conversely,
immigration adjudicators routinely query immigration enforcement databases to
determine whether non-citizen applicants for certain immigration benefits have been
or are in violation of immigration law. In addition, immigration adjudicators are also
required to conduct criminal background and lookout system checks on certain
applicants by checking with the FBI and the Department of State. Along these lines,
moreover, Congress has recently mandated that all immigration databases, service
and enforcement systems, be made compatible (interoperable).24
Immigration Services. The Homeland Security Act transfers citizenship and
immigration services – previously administered by INS – to a Bureau for Citizenship
and Immigration Services, under the DHS Office of Deputy Secretary. The
transferred functions consist of two major activities: (1) the adjudication of
immigration- and naturalization-related benefits; and (2) the consideration of refugee
and asylum claims. As part of the former INS adjudications and nationality program,
immigration adjudication officers and clerks process family-sponsored and
employment-based immigrant petitions to determine the eligibility of relatives of
U.S. citizens and immigrants (legal permanent residents), and employees of U.S.
businesses, to be permanently admitted to the United States. Another significant
workload for immigration adjudications officers is that associated with applications
for adjustment of status to permanent residency for non-citizens who are already in
the United States, but who are otherwise eligible for immigrant status. Immigration
officers also process temporary (nonimmigrant) employment and fiancee visa
23 A term of art, “immigration officers” include special agents, immigration agents,
immigration inspectors, Border Patrol agents, deportation officers, detention enforcement
officers, Asylum Corps officers, and adjudications officers.
24 Section 202(a)(1) of the Enhanced Border Security and Visa Entry Reform Act of 2002
(P.L. 107-173; 116 Stat. 543).
applications, nonimmigrant visa adjustments and extensions of stay, as well as many
other immigration- and naturalization-related applications.25
The former INS Office of International Affairs, among other things, oversaw the
consideration of refugee claims abroad, and asylum claims domestically. Essentially,
non-citizens are granted refugee and asylum status on the same basis. Under current
law, refugees and asylees are persons who are outside of their home country (or the
last country in which they habitually resided), and are unable to return to that country
because of a well founded fear of persecution on the basis of race, religion,
nationality, membership in a particular social group, or political opinion. Asylum
applicants apply in the United States; refugee applicants apply from abroad. Located
in eight offices around the country, the Asylum Corps – previously part of INS –
accounts for a small, but high profile portion of the immigration services workload.
In addition, immigration officers (often Asylum Corps officers) – previously attached
to INS – are assigned to many foreign locations to consider refugee claims.
Consular Affairs (CA): Visa and Passport Issuance. The Department
of State’s Bureau of Consular Affairs (CA) manages three functions, two of which
– visa and passport issuance – are related to border management and security. Of
these two functions, however, overseas visa issuance policy was the principal focus
of border security proposals acted upon by Congress. The third function, unrelated
to border security, includes services to U.S. citizens abroad.
The Homeland Security Act vests the Secretary of Homeland Security with
responsibility for issuing regulations related to the granting or refusal of visas, and
for providing homeland security training to consular officers, but limits that authority
in that the Secretary may not alter or reverse the decision of an individual consular
officer. To promote homeland security and provide training to consular staff, the Act
authorizes the Secretary to station DHS staff at consular posts abroad. By
comparison, the Administration’s proposal would have given the Secretary of
Homeland Security exclusive policy authority “through the Secretary of State” over
the granting or refusal of visas.
Under Section 104 of the INA (unamended by P.L. 107-296), the Secretary of
State continues to hold the primary responsibility for the administration and
enforcement of immigration law as it relates to the duties and functions of diplomatic26
and consular officers. CA’s Visa Office carries out the Secretary of State’s
immigration responsibilities, processing immigrant and nonimmigrant visa
applications (as opposed to visa petitions, which are processed by INS). Section
25 In FY2001, INS received about 7.8 million applications and completed a record 7 million,
but INS ended the year with nearly 4.9 million applications pending, a nearly 24% increase
over the previous year.
26 Among other things, Section 221 of the INA (8 U.S.C., § 1201) sets out that, subject to
limitations in the Act and relevant regulations, consular officers may issue immigrant and
responsibilities related to issuing passports to U.S. citizens.27 CA’s Passport Office
oversees the issuance of U.S. passports. While CA provides for headquarters
management of all consular activities, these activities are conducted by the staff of
many different bureaus (regional and administrative) within the Department of State.
For FY2002, the department-wide budget for consular activities was about $574
million,28 supporting 3,756 positions.29
CA also maintains the Consolidated Lookout and Support System (CLASS), a
system that is used to screen persons known to be ineligible for visas. CLASS
lookout records, in turn, are downloaded into the Interagency Border Inspection
System (IBIS), a system that is maintained by Customs and used by both Customs
and INS inspectors to screen foreign travelers seeking to enter the United States.30
CLASS was developed under State’s Border Security Program, which is fully funded
through machine readable visa (MRV) application fees that are paid by persons
seeking nonimmigrant visas. For FY2002, under the Border Security Program, it was
estimated the MRV fees would generate an estimated $465 million,31 but this
estimate did not factor in the decline in travel due to the September 11 terrorist
attacks. In addition to funding CLASS, significant amounts of MRV fees are
allocated to passport issuance and systems, and to the Diplomatic Security Service
to conduct visa and passport fraud investigations.32
In regard to processing immigrant visas, CA works in tandem with immigration
service programs – formerly part of INS – in a two-step process. The immigration
service programs process the family-sponsored and employment-based immigrant
visa petitions and, if favorably adjudicated, CA contacts the prospective immigrants.
Then, CA processes their visa applications and, if favorably adjudicated, issues the
non-citizen beneficiaries immigrant visas. The burden of proof is on applicants to
establish eligibility. For denials of visa applications (immigrant or nonimmigrant),
there is only limited review, and no process for administrative or judicial appeal.
Following inspection at a U.S. port of entry, the immigrant visa holder becomes a
legal permanent resident. For the majority of nonimmigrant (temporary) visas, most
of which do not require a U.S. petitioner, CA handles the entire application process.
27 With certain exceptions, Section 215 of the INA prohibits any U.S. citizen from departing
from or entering the United States without a valid passport.
28 U.S. Department of State, Congressional Presentation Document, FY2003, (Washington,
winter 2002), p. 40. (Hereafter cited as Congressional Presentation Document, FY2003.)
29 Ibid., p. 41.
30 For further information, see CRS Report RL31019, Terrorism: Automated Lookout
Systems and Border Security Options and Issues, by William J. Krouse and Raphael F. Perl.
31 Congressional Presentation Document, FY2003, p. 516.
32 Nearly all of this amount, for the border security program, $476 million, is allocated for
consular activities; therefore, it overlaps with the $574 million for consular activities.
In general, foreign nationals who wish to come to the United States must have
a visa to be admitted.33 A notable exception would be the visa waiver program under
which foreign nationals from certain countries seeking to enter the United States for
a temporary visit for business or pleasure may enter without a visa.34 In FY2001,
Consular Affairs issued over 406,000 immigrant visas,35 and nearly 7.6 million
nonimmigrant visas.36 Often described as a double check system, both State’s
consular officers at overseas posts (when aliens apply for a visa), and immigration
inspectors at international ports of entry (when aliens apply for admission) are
required to confirm that the alien is admissible and not subject to exclusion as
enumerated in the INA. Beside criminal and public health-related grounds, such
reasons for exclusion also include being a suspected terrorist or supporter of a
Customs Service and International Trade37
The Homeland Security Act of 2002 (P.L. 107-296) transfers the U.S. Customs
Service in its entirety to the DHS Directorate of Border and Transportation Security.
The Customs Service, formerly an agency of the Department of the Treasury, screens
goods and merchandise being imported into and, to a lesser extent, exported from,
the United States. Customs is the lead agency charged with administering the Tariff
Act of 1930, as amended. At international ports of entry, Customs officers represent
about 40 other federal agencies, administering and enforcing over 400 statutes and
regulations related to international trade and commerce, drug and crime control,
immigration, public health and safety, environmental protection, child welfare, and
Customs processes goods being imported into the United States, including
collection of duties and tariffs. The agency plays a major role in federal efforts to
interdict illegal drugs and other contraband being smuggled into the United States.
Customs administers U.S. export law, in part, by interdicting the export of unreported
currency from narcotics trafficking and other illicit activities, preventing international
terrorist groups and rogue nations from obtaining sensitive and controlled
commodities, and interdicting stolen vehicles and other stolen property. Like other
33 Authorities to except or to waive visa requirements are specified in law, such as the broad
parole authority of the Attorney General under §212(d)(5) of INA and the specific authority
of the Visa Waiver Program in §217 of INA.
34 See CRS Report RS21205, Immigration: Visa Waiver Program, by Alison Siskin.
35 In FY2001, over 1 million people gained immigrant status (legal permanent residency).
Well over half were already in the United States and, therefore, processed by INS and their
status adjusted to legal permanent residency in the United States under section 245 of the
INA. As a result, they were not issued immigrant visas by the Department of State.
36 In FY2001, according to INS, about 325 million nonimmigrants were admitted to the
United States (including multiple entries by the same visitors). Of those nonimmigrants, an
estimated 17 million were admitted under the visa waiver program.
37 This section was prepared by William Krouse.
38 Provided they have the requisite training, certain Immigration Inspectors and Border
Patrol agents are authorized to act as Customs officers at the border.
federal law enforcement agencies, Customs has also engaged in efforts to identify and
investigate trans-border crimes committed through the Internet. Those various
responsibilities comprise Customs’ dual mission of enforcing the laws of the United
States, while fostering legitimate international commerce and travel. All of Customs’
activities are related to border management and security.
In FY2001, Customs collected over $22 billion in trade-related duties, taxes, and
fees.39 Total imports for that year reached an estimated value of $1.2 trillion.40 A
large percentage of these imports arrived in more than 16 million cargo containers,
and about 5.7 million of these containers arrived by ship (most of the rest come by
rail or commercial trucks).41 In FY2001, Customs processed more than 214,000
ships.42 In addition, Customs processed over 472 million pedestrians and passengers
(nearly 66 million arrived by aircraft, 11 million by ship, 307 million by automobile,
53 million pedestrians, and 35 million by some other means of conveyance).43 For
FY2002, Congress appropriated $3.1 billion for Customs,44 supporting 18,595 full
time equivalent staff positions. This was a 35% increase over the agency’s FY2001
appropriation, most of which was provided to improve border security.45
A number of Customs-related provisions included in the Homeland Security Act
address concerns among the “importing community”46 that Customs’ transfer to DHS
– a department exclusively focused on counterterrorism – may result in less emphasis
39 U.S. Customs Service, U.S. Customs Service: America’s Frontline, FY2001 Annual
Report. Washington, July 2002, p. 70.
40 Ibid., p. 16.
41 U.S. Customs Service, U.S. Customs Container Security Initiative to Safeguard U.S.,
Global Economy, Fact Sheet, Washington, Feb. 2002, p. 1. Available online from the
Customs Service at
[ ht t p: / / www.cbp.gov/ xp/ cgov/ newsr oom/ pr e ss_r e l eases/ 22002/ 02222002.xml ]
42 Ibid., p. 1.
43 Customs FY2001 Annual Report, p. 16.
44 This amount includes the FY2002 emergency supplemental appropriation of $393 million
allocated in the Department of Defense Appropriations Act (P.L. 107-117). It also includes
monies appropriated into four accounts: 1) $2.501 billion in the salaries and expenses
account, 2) $185 million in the air and marine interdiction program account, 3) $428 million
in the automation modernization account, and 4) $3 million in the harbor maintenance fee
45 From FY1992 to FY2001, Congress increased direct appropriations for the U.S. Customs
Service from $1.5 to $2.3 billion, a 59% increase. To cover the costs of commercial
operations and as directed by Congress, Customs offsets its direct appropriation by the
balance of merchandise processing fees in the Customs User Fee Account ($930 million in
FY2001). In addition to appropriated funding, the Customs Service collects Consolidated
Omnibus Budget Reconciliation Act (COBRA) fee receipts that are available to the agency
for expenditure ($305 million in FY2001).
46 Possibly not all inclusive, the concept of “importing community” would include importers,
exporters, customs brokers, shippers, freight forwarders, carriers, international trade
attorneys and consultants, and foreign trade zones.
on facilitating legitimate international commerce and travel.47 For example, the Act
gives the Secretary of the Treasury continued authority over “customs revenue
functions.”48 It also includes several other provisions, which were recommended by
the House Committee on Ways and Means, that:
!establish the Customs Service as a stand-alone agency vested with
largely the same revenue-related responsibilities as the agency
!require that the Customs Service be headed by a Commissioner (as
is the case today), who would be appointed with advice and consent
of the Senate;
!leave the statutory revenue collecting authority with the Secretary of
the Treasury, but allow the Secretary to delegate revenue collecting
responsibilities to the proposed DHS;
!prohibit the use of Customs user fees for non-Customs-related
!require the Administration to submit a separate budget on Customs’
revenue functions within the proposed DHS;
!define “customs revenue function” and related activities;
!require the GAO to report on all trade functions performed by the
!direct the DHS Secretary to maintain adequate staffing to assure that
the agency’s revenue services are maintained;
!establish reporting requirements to ensure that the level of revenue
services provided by Customs prior to enactment are maintained;
!dedicate a portion of merchandise processing fees for the continued
development, establishment, and implementation of an Automated
Commercial Environment (a computer system to track imports).
Animal and Plant Health Inspection Service (APHIS)49
While the INS and Customs Service are the principal border management and
inspection agencies, they are assisted in this endeavor by other federal inspection
agencies that are charged with protecting the environment, food supply, and public
47 Ann Saccomano, One Agency, Many Questions: Department of Homeland Security Will
Have Impact on Trade System, Journal Commerce, Nov. 25-Dec. 1, 2002, p. 13. R. G.
Edmonson, Trade Facilitation in Peril? Some Wonder if Customs Trade Role Will Be
Diminished or Lost within Proposed Department of Homeland Security, Journal of
Commerce, June 17, 2002, p. 39.
48 Some Members of Congress explored the possibility of splitting Customs enforcement and
trade compliance activities (loosely equivalent to those activities that would fall under
“customs revenue functions”) along the same lines as splitting INS enforcement and services
activities. Others observed, however, that Customs’ enforcement activities are derived
largely from its regulatory activities, and that all these activities are part of managing
international trade at the borders.
49 This section was prepared by Jean Rawson and William Krouse.
health.50 The Department of Agriculture’s Animal and Plant Health Inspection
Service (APHIS), following INS and Customs, has the largest presence at the border.
As a lead inspections agency, nearly 60% of APHIS’s staff and 30% of its $1.2
billion FY2001 budget were dedicated to border inspection-related duties. As such,
APHIS has been included in recent proposals to consolidate border management
The Homeland Security Act of 2002 (P.L. 107-296) transfers APHIS import and
entry inspection functions to the DHS Directorate for Border and Transportation
Security, but explicitly exempts the agency’s plant and animal quarantine operations,
reflecting recommendations made by the House Committee on Agriculture. The Act
requires the DHS Secretary to follow APHIS regulations, policies, and procedures
concerning border inspections, and the USDA Secretary retains the authority to make
changes in the same, with the requirement to coordinate with the DHS Secretary. By
comparison, the Administration’s original plan would have transferred APHIS in its
entirety to the proposed DHS.
Agriculture’s APHIS conducts inspection and quarantine activities at
international ports of entry to minimize the risk that agricultural pests and exotic
animal and plant diseases will be introduced into the United States. APHIS is also
charged with several non-border management responsibilities that include nationwide
monitoring of animal and plant health; pest and disease management; animal care;
and controlling and eradicating pests and diseases that are harmful to agriculture,
wildlife, or public safety. These functions, for the most part, will remain in the
Department of Agriculture.
The Homeland Security Act gives the DHS Secretary the authority to issue
directives and guidelines to ensure the effective use of the transferred personnel,
pursuant to consultation with USDA. It effectively transfers 3,200 APHIS employees
to the new department, and requires USDA to transfer – from the fees it collects from
importers for inspection services – sufficient funds to cover the costs incurred by
DHS in carrying out agricultural inspection activities at borders and ports of entry.
In addition, the Act transfers the Plum Island Foreign Animal Disease Diagnostics
Laboratory to the DHS Directorate of Science and Technology. This lab was
formerly operated jointly by APHIS and USDA’s in-house research agency, the
Agricultural Research Service (ARS). It also directs the USDA and DHS Secretaries
to create an agreement of understanding so that ARS personnel would continue to be
able to use the facility.
50 Other agencies bring their expertise to bear at the border, as well, supporting the federal
inspection services in carrying out their responsibilities related to the environmental and
public health quarantine function. They include the Environmental Protection Agency; the
Fish and Wildlife Service in the Department of the Interior; the Food Safety Inspection
Service in the Department of Agriculture; and the Food and Drug Administration, the Public
Health Service’s Commissioned Officer Corps, and the Centers for Disease Control and
Prevention in the Department of Health and Human Services.
Coast Guard and Maritime Security51
In recent years, many analysts have identified U.S. vessels, ports, shoreside
facilities, and infrastructure as vulnerable to terrorist attacks. To address these
vulnerabilities in part, the Homeland Security Act of 2002 (P.L. 107-296) transfers
the U.S. Coast Guard to the DHS. In addition, Congress passed the Maritime
Transportation Security Act of 2002 (P.L. 107-295), an Act that includes many
border security-related provisions as well.
Background Information on the Coast Guard. The Homeland Security
Act of 2002 transfers all Coast Guard authorities, functions, personnel, and assets to
the DHS. The Act also requires the Commandant of the Coast Guard to report
directly to the Secretary of Homeland Security. Hence, the Coast Guard is
transferred to DHS as a stand-alone agency, outside of the Directorate of Border and
Transportation Security. Nonetheless, the activities of the Coast Guard will need to
be closely coordinated with the new Directorate, particularly in the area of seaport
Formerly located in the Department of Transportation, the Coast Guard is one
of five military services. The Coast Guard contributes to border security in the areas
of maritime intervention and seaports and coastal waterways security. Charged with
federal law enforcement in both U.S. territorial waters and on the high seas, border
security-related missions include multi-agency maritime drug interdiction; illegal
migrant interdiction; and regulating foreign fishing vessel transits into the 200-mile
U.S. Exclusive Economic Zone (EEZ). In addition, the Coast Guard is responsible
for the search and rescue of those who find themselves in distress in all waters, and
icebreaking operations in areas like the Great Lakes to maintain year-round access
to those waterways and the polar regions in support of scientific and national security
operations. The Coast Guard, with its ports and waterways security mandate, is the
federal agency that coordinates the inspection and security activities of other federal
agencies and local port authorities.52
There has been continuing concern over the adequacy of Coast Guard operating
resources and the condition of some of its vessels and equipment. The
Administration and Congress have significantly increased these resources. For
FY2002, Congress appropriated $5.7 billion for the Coast Guard (including a $209
million counterterrorism supplemental). This amount funds about 37,000 active-duty
personnel, about 6,000 civilian employees, and about 8,000 reserve uniformed
personnel. Later in the year, Congress appropriated for the Coast Guard an additional
51 This section was prepared by Martin Lee and Ronald O’Rourke (Coast Guard), and John
Frittelli (seaport security).
52 For further information, see CRS Report RS20924, Homeland Security: Coast Guard
Legislation in the 107th Congress, by Martin Lee, and CRS Report RS21125, Homeland
Security: Coast Guard Operations-Background and Issues for Congress, by Ronald O-
$255 million in a supplemental spending measure53 for further recovery and response
to the September 11 terrorist attacks, bringing total FY2002 Coast Guard funding to
over $6.0 billion.54
As with other agencies, some Members of Congress voiced concern that, if the
Coast Guard were transferred to the proposed DHS, certain non-security functions
such as boating safety, search and rescue, and fishing regulation could be de-
emphasized.55 To address these concerns, the Act defines “non-homeland security”
and “homeland security” Coast Guard missions. The Act, moreover, requires these
missions remain intact after the agency’s transfer, and prohibits substantially or
significantly reducing those missions or the Agency’s capabilities to perform them.
It further requires the DHS Inspector General to assess annually how all missions of
the Coast Guard are being performed. And the Act requires that a study be conducted
to assess the feasibility of accelerating the Integrated Deepwater System program
from the planned 20-year period to a 10-year period.56
Seaport Security Legislation. While the transfer of the Coast Guard to
DHS may address some aspects of security at U.S. seaports, on November 14, 2002
the Congress passed a separate measure, the Maritime Transportation Security Act
of 2002 (P.L. 107-295) addressing this issue in further detail. Even before the
September 11 terrorist attacks, an interagency commission issued a report that found,
with few exceptions, the level of security at seaports was poor to fair.57 Today, there
is heightened concern that a cargo container or ship’s hull could be used to transport
a weapon of mass destruction to the United States that might be detonated in a major58
seaport. The Act creates a U.S. maritime security system and requires federal
agencies, ports, and vessel owners to take numerous steps to upgrade security. The
Act requires the Coast Guard to develop national and regional area maritime
transportation security plans. It requires further that ports, waterfront terminals, and
certain types of vessels to develop and submit to the Coast Guard for approval
security and incident response plans.
The Act authorizes the Customs Service to require that cargo manifest
information for inbound or outbound shipments be provided to the agency
electronically prior to the arrival or departure of the cargo. This information may be
53 P.L. 107-206; 116 STAT. 820.
54 From FY1992 to FY2001, the Coast Guard budget increased from about $3.6 to $5.1
55 The House Committee on Transportation and Infrastructure recommended that the Coast
Guard remain in DOT, a new Coast Guard Vice Commandant for Homeland Security be
created, and all core missions be performed at adequate levels, but this proposal failed to
56 See CRS Report RS21019, Coast Guard Deepwater Program: Background and Issues for
Congress, by Ronald O’Rourke.
57 Report of The Interagency Commission on Crime and Security in U.S. Seaports.
Washington, fall 2000, p. 169.
58 For further information, see CRS Report RS21293, Terrorist Nuclear Attacks on Seaports:
Threat and Response, by Jon Medalia.
shared with other appropriate federal agencies. The DHS Secretary is required to
assess the security measures of foreign ports engaged in trade with the United States.
If a foreign port does not maintain effective antiterrorism measures, the United States
may prescribe conditions for vessels arriving in U.S. waters from those ports or deny
their entry. The Act also tasks the Department of Transportation with determining
the level of funding needed to finance a grant program for security upgrades, and
charges the Maritime Administration with allocating such grants in a “fair and
equitable” manner to port authorities, terminal operators, and state and local
governments. It also authorizes $90 million in grants for research and development
to improve cargo inspection, nuclear materials detection, and the physical security
of marine shipping containers.
Transportation Security: An Evolving Federal Activity59
The Homeland Security Act of 2002 (P.L. 107-296) transfers the Transportation
Security Administration (TSA) to the DHS Directorate of Border and Transportation
Security, and requires that TSA be maintained as a distinct entity within the DHS for
2 years after enactment. TSA, founded by the Aviation and Transportation Security
Act (ATSA),60 is responsible for the security of all modes of transportation. Because
aircraft were used as weapons in the September 11, 2001, attacks and ATSA’s tight
aviation security deadlines for programs initiated in the wake of the attacks, TSA’s
early efforts have focused on aviation security.61 Notwithstanding the need to secure
other modes of transportation, the rising TSA budget and estimates of the agency’s
eventual size have sparked controversy.
According to TSA, the agency’s total appropriation for FY2002 was $5.8
billion. 62 Early estimates of TSA’s personnel needs were in the range of 28,000 to
33,000 employees. More recent estimates have been in the range of 60,000 to 70,000
employees. The agency asserts that this increase in funding and personnel is largely
an outgrowth of ATSA’s tight implementation guidelines and especially the
59 This section was prepared by Robert Kirk.
60 P.L. 107-71; 115 STAT. 597.
61 On Nov. 18, 2002, Secretary of Transportation, Norman Mineta, announced that TSA had
met ATSA’s 1 year after enactment deadline for deploying federal screeners at all screening
stations at all 429 commercial service airports. This was one of the two exceptionally
demanding ATSA deadlines that many observers predicted that ATSA would fail to meet.
The second exceptionally demanding deadline is the upcoming Dec. 31, 2002 deadline for
100% Explosive Detection Systems (EDS) screening of checked baggage. Currently, TSA’s
goal is to have EDS screening of all baggage at more than 400 airports by the deadline. A
combination of electronic screening, in some cases augmented by other congressionally
authorized techniques, are to be used at these airports, until 100% EDS baggage screening
can be in place and operating.
62 Of this amount, $5.2 billion was for aviation security, including: $2.3 billion for
passenger screening; $1.9 billion for baggage screening; and $944 million for security
direction and enforcement. In addition, for FY2002, the TSA budget included: $261 million
for maritime and land security; $1.5 million for intelligence; $164 million for research and
development; and $244 million for headquarters staff, start-up costs, administrative
contracts, and information technology projects.
requirement that all checked baggage be screened by explosive detection systems
(EDS) by December 31, 2002.63 The Homeland Security Act provides for a process
whereby airports may request and the Under Secretary for Transportation Security
may extend by one year the ATSA December 31, 2002, deadline that all checked
baggage be screened by explosive detection systems (EDS). In addition, the bill
prohibits the new department from receiving any funding from the various
transportation trust funds.64
Under ATSA, the design of TSA was influenced significantly by the decision
to put the proposed agency in the Department of Transportation. While TSA’s
security mandate covers both domestic and international transportation, its
international transportation security role overlaps with border security. For example,
when TSA baggage screeners prevent someone with ill intent from boarding an
international flight, this could be viewed as a border security activity. Also, when
TSA sky marshals provide security on international flights departing from airports
abroad, this could also be viewed as a border security activity. Nonetheless, how
TSA’s security functions will be merged or coordinated with border management
agencies, like the new Bureau of Border Security (formerly INS enforcement
programs), Customs, and the Coast Guard, has yet to be specified.
Federal Building Security65
The Homeland Security Act of 2002 (P.L. 107-296) transfers the Office of
Federal Protective Service (FPS) to the DHS Directorate for Border and
Transportation Security. FPS was formerly part of the Public Buildings Service
(PBS) at the General Services Administration (GSA). Under PBS, approximately
7,000 contract security personnel supplement nearly 1,400 FPS employees.66 FPS
delivers integrated security and law enforcement services to all federal buildings that
GSA owns, controls, or leases, providing protection to federal employees and visitors
in about 8,300 properties within the United States. Services provided by FPS
!Providing a visible uniformed presence in major federal facilities
!Responding to criminal incidents and other emergencies
!Installing and monitoring security devices and systems
!Investigating criminal incidents
!Conducting physical security surveys
63 Checked baggage screeners were not included in the early personnel estimates.
64 The latter TSA provisions emerged from a contentious mark up meeting of the House
Select Committee on Homeland Security on July 22, 2002 on H.R. 5005.
65 This section was prepared by Elaine Halchin.
66 Information provided in a facsimile by the Office of Federal Protective Service, May 9,
67 General Services Administration. Security and Law Enforcement Services – Frequently
Asked Questions. Available at [http://www.gsa.gov/]. Last visited on May 22, 2003. Under
“Key Information” click on “Security and Law Enforcement Services - Frequently Asked
!Coordinating a comprehensive program for occupant agencies’
!Providing formal crime prevention and security awareness programs
!Providing police emergency and special security services during
natural disasters, major civil disturbances, and other incidents and
It is notable that many agencies are responsible for securing their buildings and
protecting their personnel. These include agencies and associated facilities that: (1)
are exempted statutorily from GSA’s authority; (2) have requested and received a
delegation of security authority from GSA; or (3) have independent real property
authority.68 At the same time, any federal agency may contract with FPS for security
services. Provisions in the Homeland Security Act allow the GSA Administrator to
retain the authority to collect such fees and authorize the transfer of funds from the
rents and fees collected by GSA to DHS. The Act also requires that these funds be
used solely for the protection of buildings and grounds owned or occupied by federal
government entities. Furthermore, it would prohibit the DHS Secretary from
obligating amounts in the Federal Buildings Fund.
Federal Law Enforcement Training Center69
The Homeland Security Act of 2002 (P.L. 107-296) transfers the Federal Law
Enforcement Training Center (FLETC) to the DHS Directorate of Border and
Transportation Security. FLETC was formerly part of the Department of Treasury.
While federal law enforcement agencies have different training needs and federal law
enforcement officers (police, inspectors, and investigators) receive training from
many sources, federal agencies often send their personnel to FLETC for various
levels of training, ranging from basic training to more advanced investigative
techniques on such topics as financial or computer crime. The main FLETC campus
is located in Glynco, Georgia. For FY2002, Congress provided $132 million for
FLETC. An additional $46 million in offsetting fee collections was available for
center operations, bringing the FLETC net budget authority to $178 million.
The Homeland Security Act also includes provisions stating that the enactment
would not affect law enforcement training agreements already entered into, and all
FLETC activities would be continued in the same locations as prior to enactment.
One rationale for transferring FLETC to the DHS Directorate of Border and
Transportation Security is that the new directorate will be hiring additional staff in
the coming years. In addition, with the Customs Services being transferred to the
new directorate, the Secret Service to DHS, and the Bureau of Alcohol, Tobacco, and
Firearms to the Department of Justice, FLETC would have been the lone law
enforcement entity within the Department of the Treasury.
68 Twenty-six agencies have independent real property authority. The list includes, for
example, all 13 executive departments, the Federal Emergency Management Agency, the
General Services Administration, and the U.S. Postal Service. (U.S. Department of Justice,
Vulnerability Assessment of Federal Facilities. Washington, DC, U.S. Department of
Justice, 1995, p. H-2.)
69 This section was prepared by William Krouse.
Office for Domestic Preparedness70
The Homeland Security Act of 2002 (P.L. 107-296) transfers the Office for
Domestic Preparedness to the DHS Directorate of Border and Transportation
Security. ODP, formerly part of the Office of Justice Programs at the Department of
Justice,71 provides federal training, equipment grants, and technical assistance to state
and local first responders.72 ODP’s activities focus exclusively on preparedness for
terrorist attacks – particularly those involving weapons of mass destruction (WMDs).
For FY2002, Congress provided $651 million for ODP.
While ODP offers assistance in a law enforcement context and provides most
of its assistance to law enforcement officers, it also offers assistance to fire and
rescue personnel, and public health officials. This approach, with an emphasis on
law enforcement, was outlined in the Interagency Domestic Terrorism Concept of
Operations Plan (CONPLAN), which divides terrorism response into two categories:
consequence management – responding to and recovering from attacks; and crisis
management – investigating crime scenes and pursuing terrorists.73 The Bush
Administration, however, does not support the distinction between consequence and
crisis management, calling it an “artificial distinction.”74 In its FY2003 proposed
budget, the Administration proposed transferring ODP to FEMA, and consolidating
about $3.5 billion in existing and proposed preparedness assistance programs for
state and local first responders in a single formula grant program to be administered
The Homeland Security Act expands ODP’s mission from supervising terrorism
preparedness training and assistance programs to also include coordinating state and
local preparedness efforts on a national basis. Other agencies charged with
consequence management functions, like FEMA and the HHS Office for Emergency
70 This section was prepared by Ben Canada. For more information on domestic
preparedness issues, see CRS Report RL31490, Department of Homeland Security: State
and Local Preparedness Issues, by Ben Canada.
71 The ODP web site is: [http://www.ojp.usdoj.gov/odp/].
72 Other federal agencies offer preparedness assistance with a consequence management
focus: (1) FEMA’s Office for National Preparedness, for example, provides grants for
planning, equipment, and exercises, and provides technical assistance; (2) the U.S. Fire
Administration and the Emergency Management Institute, also located within FEMA,
provides a wide array of training to state and local responders; and (3) the Department of
Health and Human Services (HHS), through its Office of Emergency Preparedness, seeks
to coordinate the resources of local governments to prepare for weapons of mass destruction
incidents. For further information, see CRS Report RL31227, Terrorism Preparedness:
Catalog of Selected Federal Assistance Programs, coordinated by Ben Canada.
73 The CONPLAN is available from the Federal Bureau of Investigation’s web site at
[ h t t p : / / www.f b i . go v/ publ i cat i ons/ c onpl an/ c onpl an.pdf ] .
74 Office of Homeland Security, Department of Homeland Security (Washington: GPO,
June 2002), pp. 13-14.
75 For further information on the formula grant proposal, see CRS Report RL31475, First
Responder Initiative: Policy Issues and Options, by Ben Canada.
Preparedness are transferred to the Emergency Preparedness and Response
Directorate, along with the FBI’s National Domestic Preparedness Office and
Domestic Emergency Support Team. These transfers effectively split responsibility
for preparedness assistance programs between the Directorate of Border and
Transportation Security and the Directorate of Emergency Preparedness and
Response.76 In part, this split reflects the concern of key policy makers that ODP
would lose its focus and expertise on crisis management and law enforcement
training if wholly transferred to the Directorate of Emergency Preparedness and
Response, the cornerstone of which is FEMA.77
Issues for Congress
To more effectively address the increased threat of terrorism, Congress passed
legislation that establishes the cabinet-level Department of Homeland Security
(DHS). To DHS were transferred several federal agencies charged with overseeing
elements of border, transportation, federal building security, law enforcement
training, and domestic preparedness. The establishment of the new department and
its Directorate of Border and Transportation Security raises new issues for Congress.
The most immediate issue for the 108th Congress will be to work with the
Administration to make the new department operational – up and running–at a time
when threats to borders and transportation systems are real and arguably imminent.
Other corollary issues, listed below, may arise as well.
Expeditious Consolidation of Agencies and Functions. In the short
run, there is a real risk that the reorganization will make the country more vulnerable
to terrorist attacks by disrupting these agencies, dispersing their resources, and
distracting their attention from more immediate threat responses and related
initiatives. What steps can be taken to maintain the desired expanded focus on
counterterrorism and border security while consolidating these agencies? How can
any disruption to legitimate travel and commerce caused by an expanded focus on
counterterrorism be mitigated?
Integration and Strategic Focus. In the long run, after the physical
consolidation of these agencies has been completed, many integrative and
harmonization of operations steps may still be necessary. How will these agencies
(within and without the Directorate) share information needed for border security?
How will agreements be struck to more effectively integrate the border inspection
activities? How will coordination be improved with the multiple agencies that are
left out of the consolidation? Finally, can the activities of the transferred agencies
and functions be conducted under a single and unified strategic vision that is built
around the central mission – counterterrorism – while also incorporating the
transferred agencies’ other border management- and transportation security-related
missions and activities?
76 For further information, see CRS Report RS21367, Emergency Preparedness and
Response Directorate of the Department of Homeland Security, by Keith Bea, et al.
77 See generally Jason Peckenpaugh, “Homeland Security Bill Would Reorganize Federal
First Responder Programs,” Government Executive, Nov. 14, 2002.
Border Security and Technology. Congress has explored, and in many
cases adopted, other border and transportation security-related provisions. Many of
these provisions center on the concept of extending our border-related activities
outward by identifying threats and preventing their arrival at U.S. borders throughst
increased intelligence, preinspection, port security, and leverage of 21 Century
technologies. With regard to technology, Congress has passed legislation to require
(1) greater information sharing across agencies and departments through
interoperable computer systems; (2) greater use of biometrics to verify the identity
of travelers, and (3) the submission of electronic manifests from airlines and shippers
prior to arrival. In addition, the Administration, with Congressional support, has
explored new inspection and compliance processes that are designed not only to
increase security, but also to facilitate legitimate cross border travel and commerce.
How quickly and effectively can these provisions be implemented and these new
technologies be brought online to improve threat detection, while keeping borders
open to legitimate cross-border travel and commerce moving?
Adequate Funding and Staffing. Outside observers, including the
Congressional Budget Office78 and General Accounting Office,79 cautioned that
establishing the Department of Homeland Security would increase costs. Several
questions arise here. How can costs be reduced through eliminating redundancies,
or will it be necessary to increase spending to more fully integrate disparate systems
and operations? Should funding be increased for other more specific border security-
and transportation-related initiatives, such as continuing the development and
implementation of automated interoperable information systems that track persons
and merchandise (possibly international terrorists and instruments of terror) entering
the United States, or by putting additional inspectors and agents on the border?
Efficient Deployment of Resources. In response to narcotics trafficking
and illegal immigration, Congress increased resources for the Customs Service and
INS. The lion’s share of these increased resources were deployed to the southern tier
of the United States, the Caribbean and the Southwest border with Mexico. How will
existing resources and future supplemental resources be deployed to all the U.S.
borders and preinspection sites abroad to most effectively prevent future terrorist
attacks while simultaneously deterring other illegal activities and facilitating
legitimate cross-border trade and travel?
78 Based on the assumption that the necessary amounts were appropriated, CBO estimates
that implementing the Homeland Security Act (H.R. 5005, as introduced) would cost about
$4.5 billion over the FY2003 to FY2007 period, and estimated that implementing the
National Homeland Security and Combating Terrorism Act (S. 2452, as introduced) would
cost about $10.6 billion over the same time period. These amounts were in addition to the
funding necessary to maintain the ongoing activities of the transferred agencies. Neither
estimate separated out costs associated with establishing the Border and Transportation
79 U.S. General Accounting Office, GAO-02-957T, Homeland Security: Critical Design and
Implementation Issues, Statement of David Walker Comptroller General of the United
States, (Washington: July 17, 2002), p. 20. [http://www.gao.gov/new.items/d02957t.pdf]
Coast Guard and Inter-Departmental Coordination. There is growing
recognition that U.S. seaports and maritime traffic are vulnerable to terrorist attacks.
How will the efforts and activities of the Coast Guard and the Directorate of Border
and Transportation Security be coordinated within the Department of Homeland
Transportation Security. Congress created and charged the Transportation
Security Administration with securing all modes of transportation. In addition, the
vast majority of TSA’s counterterrorism efforts will be directed toward protecting
domestic transportation. How and when will TSA provide increased security for non-
aviation modes of transportation? What mechanisms will be necessary to coordinate
the activities of TSA with border agencies, like the new Bureau of Border Security,
Customs, and the Coast Guard?
Federal Building Security. The Federal Protective Service (FPS) is a
relatively small agency charged with providing law enforcement services in GSA
buildings. Located in the Border and Transportation Security Directorate, will FPS
continue to provide the same level of security services to federal agencies? Or will
those services be increased? Will FPS’s mission change to encompass a wider range
of activities related to homeland security?
Federal Law Enforcement Training. The Federal Law Enforcement
Training Center (FLETC) provides various levels of training to federal police,
inspectors, and investigators on levels ranging from basic training to advanced
investigative techniques. It is likely that the new department and directorate will
receive many new law enforcement positions for which recruits will need to be
trained at FLETC, but the center also provides training for numerous other non-
homeland security agencies. Will FLETC continue to provide the same level of
training to non-homeland security agencies, or will it focus on directorate and
departmental needs in the future?
Terrorism Preparedness. Transferred to the Directorate of Border and
Transportation Security, the Office for Domestic Preparedness (ODP) is charged with
coordinating state and local preparedness efforts and supervising terrorism
preparedness grant programs. Will ODP’s activities complement those of the
transferred border and transportation security agencies that were also transferred to
the Directorate? Will ODP’s new responsibilities constitute a major new mission for
the directorate on par with border and transportation security? To what extent will
ODP’s efforts to coordinate state and local terrorism preparedness overlap with those
of the DHS Directorate of Emergency Preparedness and Response