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Issues in Homeland Security Policy for the 113th Congress.

Contents

What Is Homeland Security?
  Homeland Security: Definitions and Security
  The Budget and Security
    DHS Appropriations
Counterterrorism and Security Management
  The Transnational Trend of Terrorism
  Homegrown Jihadist Terrorism
  Cybersecurity
    Cyber Threats
    Legislative Branch Efforts to Address Cyber Threats
    Executive Branch Actions to Address Cyber Threats
  Medical Countermeasures to Chemical, Biological, Radiological,
    and Nuclear
      Terrorism
  BioWatch: Detection of Aerosol Release of Biological Agents
  Continuity of Government Operations
  Federal Facility Security: Federal Protective Service
  Food Defense
  Security of Pipelines
  Security of Chemical Facilities
  Security of Wastewater and Water Utilities
Transit Security
Border Security and Trade
  Southwest Border Issues
    Spillover Violence
    Illicit Proceeds and the Southwest Border
    Cross-Border Smuggling Tunnels
  Cargo Security
    Customs-Trade Partnership Against Terrorism (C-TPAT)
    100% Scanning Requirement
    Port of Entry (POE) Infrastructure and Personnel
  Domestic Nuclear Detection
  Transportation Worker Identification Credential (TWIC)
  Aviation Security
    Explosives Screening Strategy for the Aviation Domain
    Risk-Based Passenger Screening
    The Use of Terrorist Watchlists in the Aviation Domain
    Mitigating the Threat of Shoulder-Fired Missiles to Civilian
      Aircraft
    Security Issues Regarding the Operation of Unmanned Aircraft
Immigration
  Immigration Inspections at Ports of Entry
  Entry-Exit System
  Enforcement Between Ports of Entry
  CBP Integrity
Disaster Preparedness, Response, and Recovery
  Disaster Assistance Funding
  Hurricane Sandy Recovery
  DHS State and Local Preparedness Grants
    Consolidation of DHS State and Local Programs
  Firefighter Assistance Programs
  Emergency Communications Infrastructure and Technology
  Presidential Policy Directive 8 and the National Preparedness
    System
  Public Health and Medical Services
  Potential Reauthorization of the Defense Production Act of 1950
Management Issues at DHS
  DHS Reorganization Authority
  The Management Budget
    DHS Financial Management Reforms
    Headquarters Consolidation
  Department of Homeland Security Personnel Issues
    Recruitment and Hiring of Highly Qualified Candidates
    Diversity of the Workforce
    Employee Morale
  Acquisition
    Acquisition Workforce
    Balanced Workforce Strategy (BWS)
  Homeland Security Research and Development

Tables

Table 1. Congressional Funding for Transit Security, FY2002-FY2012

Contacts

Author Contact Information


Summary

With the 10th anniversary of the establishment of the Department of Homeland Security (DHS), many observers have made a fresh assessment of where America's homeland security enterprise stands today. DHS is currently the third-largest department in the federal government, although it does not incorporate all of the homeland security functions at the federal level. The definition of homeland security remains unsettled, and questions about the effectiveness and efficiency of the department have been raised since it was first proposed. Evolution of America's response to terrorist threats has continued under the leadership of different Administrations, Congresses, and in a shifting environment of public opinion.

This report outlines an array of homeland security issues that may come before the 113th Congress. After a brief discussion of the overall homeland security budget, the report divides the specific issues into five broad categories:

* Counterterrorism and Security Management,

* Border Security and Trade,

* Immigration,

* Disaster Preparedness, Response, and Recovery, and

* Departmental Management.

Each of those areas contains a survey of topics briefly analyzed by Congressional Research Service experts. The information included only scratches the surface on most of these issues. More detailed information can be obtained by consulting the CRS reports referenced herein, or by contacting the relevant CRS expert.

September 23, 2013

What is Homeland Security?

This question has dogged U.S. public policy debates for more than a decade. There is no statutory definition of homeland security that reflects the breadth of the enterprise as currently understood. Although there is a federal Department of Homeland Security, it is neither solely dedicated to homeland security missions, nor is it the only part of the federal government with significant responsibilities in this arena.

The Department of Homeland Security (DHS) was established by the Homeland Security Act of 2002 (P.L. 107-296), which was signed into law on November 25, 2002. The new department was assembled from components pulled from 22 different government agencies and began official operations on March 1, 2003. Since then, DHS has undergone a series of restructurings and reorganizations to improve its effectiveness and efficiency.

Although DHS does include many of the homeland security functions of the federal government, several of these functions or parts of these functions remain at their original executive branch agencies and departments, including the Departments of Justice, State, Defense, and Transportation. Not all of the missions of DHS are officially "homeland security" missions. Some components have historical missions that do not directly relate to conventional homeland security definitions, such as the Coast Guard's environmental and boater safety missions, and Congress has in the past debated whether FEMA and its disaster relief and recovery missions belong in the department.

Some aspects of crime and justice could arguably be included in a broad definition of homeland security. Issues such as the role of the military in law enforcement, monitoring and policing transfers of money, human trafficking, explosives and weapons laws, and aspects of foreign policy, trade, and economics have implications for homeland security policy.

Rather than trying to resolve the question of what is and is not homeland security, this report is limited to topics that generally fall within the four mission study areas used to develop the Quadrennial Homeland Security Review mandated by the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53):

* Counterterrorism and Security Management,

* Border Security and Trade,

* Immigration, and

* Disaster Preparedness, Response, and Recovery.

A fifth section covering management issues at DHS rounds out the discussion. As each topic is introduced, the lead expert and author of the section is listed, along with their contact information. In many cases, a specific CRS report is highlighted as a source of more detailed information.

The issues included in this report do not represent a comprehensive list of possible issues--they represent a broad array of issues likely to be addressed by Congress in the coming months.

Homeland Security: Definitions and Security

Shawn Reese, Analyst in Emergency Management and Homeland Security Policy (sreese@crs.loc.gov, 7-0635)

For more information, see CRS Report R42462, Defining Homeland Security: Analysis and Congressional Considerations.

Twelve years after the 9/11 terrorist attacks, policymakers continue to debate the definition of homeland security. Prior to 9/11, the United States addressed crises through the separate prisms of national defense, law enforcement, and emergency management. 9/11 prompted a strategic process that included a discussion about and the development of homeland security policy. Today, this debate and development has resulted in numerous federal entities with homeland security responsibilities. Presently, there are over 30 federal departments, agencies, and entities that have homeland security responsibilities and receive annual appropriations to execute homeland security missions.

Congress is responsible for appropriating funds for homeland security missions and priorities. These priorities need to exist and to be clear in order for funding to be most effective. Presently, homeland security is not funded based on clearly defined strategic priorities. In an ideal scenario, there would be a consensus definition of homeland security; as well as prioritized missions, goals, and activities. Policymakers could then use a process based on these defined priorities to incorporate feedback and strategically respond to new facts and situations as they develop.

The debate over and development of homeland security definitions and priorities persists as the federal government continues to issue and implement homeland security strategies. The first homeland security strategy document issued by President George W. Bush's Administration was the 2003 National Strategy for Homeland Security, which was revised in 2007. In 2008, the Department of Homeland Security (DHS) issued the Strategic Plan--One Team, One Mission, Securing Our Homeland. The 2007 National Strategy for Homeland Security primarily focused on terrorism, whereas the 2008 Strategic Plan included references to all-hazards and border security. Arguably, the 2003 and 2007 National Strategies for Homeland Security addressed terrorism due to such incidents as the 9/11 terrorist attacks and the attempted bombing of American Airlines Flight 93 on December 22, 2001, whereas the 2008 Strategic Plan addressed terrorism and all-hazards due to natural disasters such as Hurricane Katrina, which occurred in 2005. These documents have been superseded by several other documents which are now considered the principal homeland security strategies.

The White House and DHS are the principle source of homeland security strategies. The current primary national homeland security strategic document is the 2010 National Security Strategy, which unlike the 2007 National Strategy for Homeland Security addresses all hazards and is not primarily terrorism focused. (1) DHS's strategic documents are the 2010 Quadrennial Homeland Security Review; the 2010 Bottom-Up Review; and the 2012 Strategic Plan. DHS states that these documents are nested in the 2010 National Security Strategy and DHS is currently developing the 2014 Quadrennial Homeland Security Review (2) At the national level, the 2010 National Security Strategy guides not just DHS's activities, but also all federal government homeland security activities. The development of national homeland security strategy will continue as the Obama Administration and DHS develop and implement such strategies as the 2014 Quadrennial Homeland Security Review and a potentially new National Security Strategy that the Obama Administration may issue sometime in the next four years.

It has been argued that homeland security, at its core, is about coordination because of the disparate stakeholders and risks. (3) Many observers assert that homeland security is not only about coordination of resources and actions to counter risks; it is also about the coordination of the strategic process policymakers use in determining the risks, the stakeholders and their missions, and the prioritization of those missions.

Without a general consensus on the literal and philosophical definition of homeland security, achieved through a strategic process, some believe that there will continue to be the potential for disjointed and disparate approaches to securing the nation. From this perspective, general consensus on the homeland security concept necessarily starts with a consensus definition and an accepted list of prioritized missions that are constantly reevaluated to meet risks of the homeland security paradigm of the 21st century. The varied homeland security definitions and concepts represented in the current national and homeland security strategy documents, however, may be the result of a strategic process that has attempted to, in an ad hoc manner, adjust federal homeland security policy to emerging threats and risks.

The Budget and Security

William L. Painter, Analyst in Emergency Management and Homeland Security Policy (wpainter@crs.loc.gov, 7-3335)

For more information, see CRS Report R43147, Department of Homeland Security: FY2014 Appropriations.

According to data from the Office of Management and Budget (OMB), the entire U.S. government spent $564 billion (in nominal dollars) on "homeland security"--defined in law as "those activities that detect, deter, protect against, and respond to terrorist attacks occurring within the United States and its territories" (4)--in the 10 years after the 9/11 attacks. Such spending peaked in FY2009 at $73.8 billion. The total budget request for homeland security activities for FY2014 was $72.7 billion, a reduction of $1.1 billion from its high-water mark in nominal terms. (5)

By comparison, the budget for the Department of Homeland Security has grown from $31.2 billion in FY2003, when it did not have its own appropriations bill, to $59.9 billion in FY2012, the last year for which we have complete budget data. Roughly $35.1 billion, or 58.6%, is considered "homeland security" spending by OMB's accounting under the above definition. Some argue that the definition in law is too focused on explicit and directly attributable counterterrorism activities compared to broader theories that have been part of the national discussion, which consider immigration and border control or disaster response as a part of homeland security.

DHS Appropriations

In 2010, neither the House nor the Senate completed work on its version of a FY2011 appropriations bill for the Department of Homeland Security. For the first time, the department, like the rest of the federal government that year, was funded through a long-term continuing resolution. This resolution established funding levels for some components and activities, while leaving others to be funded at FY2010 levels. The resolution overall gave the department much less explicit direction from Congress than previous funding vehicles, in several cases leaving decisions usually made by Congress about how to allocate limited funds in DHS's hands. (6) This stood in contrast to previous years, when at least one body passed an appropriations bill funding the department, and legislation providing specific appropriations was either passed on a standalone basis or as part of legislation including multiple bills. Just as importantly, in those years, either a conference report or explanatory statement of the managers provided further direction to the department on allocation of appropriated funds, oversight requirements and other expressions of congressional intent.

For both FY2012 and FY2013, DHS was funded through consolidated appropriations legislation, which carried traditional levels of specific Congressional direction for the department. The actual level of budgetary resources available for the FY2013 budget year, however, was impacted by the across-the-board cuts--known as sequestration--mandated by the Budget Control and Deficit Reduction Act of 2011 (BCA). A combination of factors has therefore made the final funding levels for FY2013 difficult to ascertain, including the fact that:

* Some activities were legislatively exempt from sequestration;

* Sequestration was implemented before the final appropriations legislation for FY2013 was enacted, so the across-the-board reduction was taken against a baseline determined by OMB, rather than the actual amount appropriated; and

* Federal agencies have been encouraged to use the budgetary flexibility afforded them--the ability to transfer funds between accounts and to reprogram funding within accounts--to protect some activities deemed more important at the expense of others.

Although an expenditure plan was submitted to Congress on April 26, 2013, which outlined the post-sequester funding levels provided to DHS in the consolidated appropriations act for FY2013 (7) before the exercise of budgetary flexibility, it did not include resources provided through supplemental appropriations for disaster relief. (8) No official statement of final FY2013 post-sequester funding levels by program, project, and activity after the exercise of transfer and reprogramming authority has been made, and is not expected until the release of the FY2015 budget request.

As of this writing, the FY2014 annual appropriation for DHS is unresolved, as are the other eleven annual appropriations bills. For FY2014, the Administration's total discretionary appropriations request for DHS was $44.7 billion, including funding for disaster relief and overseas contingency operations (which do not count against the budget allocation of the bill). Comparable calculations for House-passed and Senate-reported DHS appropriations legislation show similar total funding levels, $44.6 billion and $44.7 billion, respectively. However, the appearance of general agreement on the rough funding level for the department should not be interpreted as a clear path forward for the legislation. The full Senate has not taken up its version of the bill as of this writing. There are significant differences in the policy direction and proposed funding levels that make up the bill's overall total, and the resolution of these differences and the precise funding level itself is linked to the resolution of the FY2014 budget and the other FY2014 appropriations bills.

Some sort of resolution on the size of the overall FY2014 budget will be necessary in order to complete the appropriations process, either through annual appropriations legislation, continuing resolutions, or a combination. The debate in FY2014 hinges in part on whether to continue with the automatic cuts mandated in the BCA as amended. These reductions in the overall discretionary spending cap total $91.6 billion, or roughly 8.7% of the total discretionary budget. The limit on discretionary defense spending described by current law is $497 million, and $469 million for non-defense discretionary spending. (9) Homeland security activities as defined in law are funded with both defense and non-defense budget authority, although most of the DHS budget falls in the non-defense category.

The current budget environment will likely present challenges to homeland security programs and the department going forward, as ongoing capital investment efforts and staffing needs will compete with the budget demands of the rest of the government for limited funds. The potential impact of the changed budget environment is discussed at various points throughout this report.

Counterterrorism and Security Management

The Transnational Trend of Terrorism

John Rollins, Specialist in Terrorism and National Security (jrollins@crs.loc.gov, 7-5529)

For more information, see CRS Report R41004, Terrorism and Transnational Crime: Foreign Policy Issues for Congress.

Terrorism remains a transnational threat that entails risks to U.S. global interests emanating from and manifested in both the international and domestic environment. Central to U.S. efforts to address transnational terrorism are actions taken to detect, deter, and defeat Al Qaeda. While recognizing that numerous other terrorist groups may wish to harm U.S. global security interests, the Administration primarily focuses on addressing threats from Al Qaeda, its affiliated organizations, and adherents to its violence-based philosophy. Speaking before the United Nations Counterterrorism Committee, Daniel Benjamin, the Coordinator of the Office of the Counterterrorism at the State Department, said "Rather than trying to combat directly every single terrorist organization regardless of whether they have the intent or capability to ever attack the U.S. or our citizens, President Obama's counterterrorism strategy is (focused on) Al Qaeda and its affiliates and adherents." (10) Understanding how Al Qaeda continues to evolve into a global entity with a diverse set of actors and capabilities is central to formulating sound strategic policy and overseeing its effective implementation.

The past few years have witnessed an increase in terrorist actions by entities claiming some affiliation with or philosophical connection to Al Qaeda. Many of the past year's global terrorist attacks were conducted by individuals or small terrorist cells that received support ranging from resources and training to having minimal connections, if any, with the terrorist groups to which they claim allegiance. Some argue that recent U.S. counterterrorism successes may be reducing the level of terrorist threats to the nation emanating from core Al Qaeda. U.S. officials suggest that the killing of Osama bin Laden in May 2011 coupled with continuous post-9/11 global military and intelligence counterterrorism actions have significantly degraded Al Qaeda's ability to successfully launch a catastrophic terrorist attack against U.S. global interests. Others suggest that Al Qaeda has changed from an organization to a philosophical movement, making it more difficult to detect and defeat. These security experts suggest that Al Qaeda and associated affiliates will remain viable, due in part to the prospective security implications related to the nation's budgetary situation. Noted author on counterterrorism issues Daveed Gartenstein-Ross argues that "The U.S. will not be (defeated) by Al Qaeda. But one can see that as the national debt increases, we (will) have to make spending cuts and as Al Qaeda gets stronger in multiple countries simultaneously--Somalia, Yemen, Pakistan, maybe Mali--suddenly you're looking at multiple theaters from where catastrophic strikes can be launched." (11) In August 2013 the Director of the Federal Bureau of Investigation noted concerns associated with Al Qaeda inspired entities also migrating to the countries of Tunisia, Libya, Algeria, Egypt, and Syria. (12)

The balance between ensuring effective counterterrorism policies and being mindful of the current budget environment is not lost on senior Administration officials. In recent years John Brennan, in his former capacity as the Assistant to the President for Homeland Security, now the Director of the Central Intelligence Agency, has spoken of Osama bin Laden's often stated objective of pursuing global acts of terrorism against the nation's interests with the desire to "bleed [the U.S.] financially by drawing us into long, costly wars that also inflame anti-American sentiment." (13)

The terrorist threat to U.S. global interests will likely remain an important issue for the Administration and remainder of the 113th Congress. Over the past few years numerous individuals were arrested in the homeland and abroad for conducting attacks and planning terrorism-related activities directed at U.S. national security interests. All of the attacks-- successful and unsuccessful--were of a transnational dimension and ranged from a lone shooter who appears to have become radicalized over the Internet to terrorist organizations wishing to use airliners as platforms for destruction to individuals attempting to detonate large quantities of explosives in symbolic areas frequented by large groups of people.

Thus far the 113th Congress undertook efforts, largely through hearings, to better understand the nature of terrorism in various geographic regions and assess the effectiveness of U.S. and partnering nations' counterterrorism efforts. Programs and policies that the 113th Congress have reviewed include public diplomacy efforts; imposition of sanctions; terrorism financing rules; the nexus between international crime, narcotics, and terrorism; and the relationship between domestic and international terrorism activities. The 113th Congress may continue to assess the Obama Administration's counterterrorism-related strategies, policies, and programs to ascertain if additional guidance or legislation is required. These assessments will likely entail considerations of how best to balance perceived risks to U.S. global security interests with concerns about the long-term fiscal challenges facing the nation.

Homegrown Jihadist Terrorism (14)

Jerome P. Bjelopera, Specialist in Organized Crime and Terrorism (jbjelopera@crs.loc.gov, 7-0622)

For more information, see CRS Report R41416, American Jihadist Terrorism: Combating a Complex Threat.

CRS estimates that, since May 2009, arrests have been made in 50 homegrown jihadist (15) terrorist plots by American citizens or legal permanent residents of the United States as part of a much-discussed apparent uptick in terrorist activity in the United States. (16) Three of these plots resulted in attacks--the bombing of the 2013 Boston Marathon allegedly committed by Tamerlan and Dzhokhar Tsarnaev; U.S. Army Major Nidal Hasan's assault at Fort Hood in Texas; and Abdulhakim Muhammed's shooting at the U.S. Army-Navy Career Center in Little Rock, AR--that produced 17 deaths. (17) By comparison, in more than seven years from the September 11, 2001, terrorist strikes (9/11) through May 2009, there were 21 such plots. (18) Two resulted in attacks, and never more than six occurred in a single year (2006). (19) The apparent spike in such activity after May 2009 suggests that at least some Americans--even if a tiny minority--are susceptible to ideologies supporting a violent form of jihad. Most of the homegrown plots after May 2009 likely reflect a trend in jihadist terrorist activity away from schemes directed by core members of significant terrorist groups such as Al Qaeda.

The Threat: Four Key Themes

Homegrown violent jihadist activity since 9/11 defies easy categorization. CRS analysis of the terrorist plots and attacks since 9/11 suggests four broad themes:

* Various Endgames: Plots have involved individuals interested in a variety of ways to harm U.S. interests. Some individuals focused on becoming foreign fighters in conflict zones, such as Somalia. Others planned attacks using explosives, incendiary devices, or firearms. Yet others incorporated multiple, unspecific, or unique tactics. Finally, outside of the post-9/11 violent plots, additional individuals intended only to fund or materially support jihadist activities.

* Little Interest in Martyrdom: A minority of homegrown jihadists clearly exhibited interest in killing themselves while engaged in violent jihad.

* Success of Lone Wolves: Individuals acting alone, so-called "lone wolves," conducted all four successful homegrown attacks since 9/11.

* Divergent Capabilities: The operational capabilities of participants diverge greatly. Some evinced terrorist tradecraft such as bomb-making skills. Others appeared to be far less experienced.

Countering the Threat

The Obama Administration has acknowledged the significance of the homegrown jihadist threat in two of its recent strategy documents. In June 2011 it announced its National Strategy for Counterterrorism. (20) The strategy focuses on Al Qaeda, its affiliates (groups aligned with it), and its adherents (individuals linked to or inspired by the terrorist group). (21) John Brennan, at the time President Obama's top counterterrorism advisor, publicly described the strategy as the first one "that designates the homeland as a primary area of emphasis in our counterterrorism efforts." (22)

In 2011, the Obama Administration also released a strategy for combating violent extremism. (23) It revolves around countering the radicalization of all types of potential terrorists. As such, the radicalization of violent jihadists falls under its purview. The strategy's domestic focus includes philosophical statements about the importance of protecting civil rights, federal cooperation with local leaders in the private and public sectors, and the insistence that the strategy does not center solely on fighting one particular radical ideology. (24)

Radicalization

Radicalization has been described as the exposure of individuals to ideological messages and the movement of those individuals from mainstream beliefs to extremist viewpoints. (25) Others define it more simply, as changes in belief and behavior to justify intergroup violence and personal or group sacrifice to forward specific closely held ideas. (26) The United Kingdom's "Prevent" counter-radicalization strategy defines radicalization as "the process by which a person comes to support terrorism and forms of extremism leading to terrorism." (27) The Obama Administration's counter- radicalization strategy frames its discussion around "violent extremists," which it defines as "individuals who support or commit ideologically-motivated violence to further political goals." (28)

While the concept of "radicalization" and its possible end result of "terrorism" are certainly related, an important distinction between the terms exists as they relate to the threshold of U.S. law enforcement interest and action. This is because Americans have the right under the First Amendment to adopt, express, or disseminate ideas, even hateful and radical ones. But when radicalized individuals mobilize their views (i.e., move from a radicalized viewpoint to membership in a terrorist group, or to planning, materially supporting, or executing terrorist activity), then the nation's public safety and security interests are activated.

In the post-9/11 environment, the public expects law enforcement to disrupt terrorist plots before an attack occurs. This has led authorities to adopt a preventive policing approach that focuses not just on crime that has occurred, but on the possibility that a crime may be committed in the future. In this context, a major challenge for federal law enforcement, particularly the Federal Bureau of Investigation (FBI), is gauging how quickly and at what point individuals move from radicalized beliefs to violence so that a terrorist plot can be detected and disrupted. A 2008 revision to the Attorney General's Guidelines for Domestic Federal Bureau of Investigation Operations was intended to be helpful in this regard, streamlining FBI investigations and making them more proactive. The revision permits the bureau to conduct assessments of individuals or groups without factual predication. (29) However, the new guidelines have generated some controversy.

Civil libertarians have questioned their impacts on privacy. (30) Also, the bombing of the 2013 Boston Marathon has prompted some to ask whether the FBI appropriately shared information with state and local officials regarding an assessment of Tamerlan Tsarnaev its agents conducted in 2011. (31)

To counter violent jihadist plots, U.S. and foreign law enforcement have employed two sets of innovative tactics. Using violations of civil laws to arrest and prosecute suspected terrorists and their support networks is known as taking the "Al Capone" approach, in reference to the federal government's successful use of the mobster's violations of tax law to incarcerate him. Law enforcement has also successfully used "agents provocateurs"--people employed to associate with suspects and incite them to commit acts that they can be arrested for. These tactics have long been used in a wide variety of criminal cases but have particular utility in counterterrorism investigations as they allow suspects to be arrested prior to the commission of a terrorist act rather than after the damage has been done.

Cybersecurity

John Rollins, Specialist in Terrorism and National Security (jrollins@crs.loc.gov, 7-5529)

For more information, see CRS Report R40836, Cybersecurity: Current Legislation, Executive Branch Initiatives, and Options for Congress.

Cyber threats to the United States are a current and growing concern to policymakers. Technology is ubiquitous and relied upon in almost every facet of modern life, such as supporting government services, corporate business processes, and individual professional and personal pursuits. Many of these technologies are interdependent and the disruption to one piece of equipment may have a negative cascading effect on other devices. A denial of service, theft or manipulation of data, or damage to critical infrastructure through a cyber-based attack could have significant impacts on national security, the economy, and the livelihood of individual citizens. These concerns raise many questions for Congress, among them,

* Who are the aggressors in cyberspace and what are their intentions and capabilities?

* What are the impacts and implications of cyberattacks?

* What legislative and policy actions have the Congress and executive branch taken to respond to threats from cyberspace? What further steps should be taken?

Cyber Threats

Cyber-based technologies (32) are now ubiquitous around the globe. The vast majority of their users pursue lawful professional and personal objectives. However, criminals, terrorists, and spies also rely heavily on cyber-based technologies to support organizational objectives. These malefactors may access cyber-based technologies in order to deny service, steal or manipulate data, or use a device to launch an attack. Entities using cyber-based technologies for illegal purposes take many forms and pursue a variety of actions counter to U.S. global security and economic interests.

The threats posed by these cyber-aggressors and the examples of types of attacks they can pursue are not mutually exclusive. For example, a hacker targeting the intellectual property of a corporation may be categorized as both a cyberthief and a cyberspy. A cyberterrorist and cyberwarrior may be employing different technological capabilities in support of a nation's security and political objectives. Commonly recognized cyber-aggressors and representative examples of the harm they can inflict include the following:

Cyberterrorists are state-sponsored and non-state actors who engage in cyberattacks as a form of terrorism. Transnational terrorist organizations, insurgents, and jihadists have used the Internet as a tool for planning attacks, radicalization and recruitment, a method of propaganda distribution, and a means of communication. (33) While no unclassified reports have been published regarding a cyberattack on a critical component of the nation's infrastructure, the vulnerability of critical life-sustaining control systems being accessed and destroyed via the Internet has been demonstrated. In 2009, the Department of Homeland Security (DHS) conducted an experiment that revealed some of the vulnerabilities to the nation's control systems that manage power generators and grids. The experiment, known as the Aurora Project, entailed a computer-based attack on a power generator's control system that caused operations to cease and the equipment to be destroyed. (34)

Cyberspies are individuals who steal classified or proprietary information used by governments or private corporations to gain a competitive strategic, security, financial, or political advantage. These individuals often work at the behest of, and take direction from, foreign government entities. For example, a 2011 FBI report noted, "a company was the victim of an intrusion and had lost 10 years' worth of research and development data--valued at $1 billion--virtually overnight." (35) Likewise, in 2008 the Department of Defense's (DOD's) classified computer network system was unlawfully accessed and "the computer code, placed there by a foreign intelligence agency, uploaded itself undetected onto both classified and unclassified systems from which data could be transferred to servers under foreign control." (36) Reportedly, the intelligence community will soon complete a classified National Intelligence Estimate focused on cyberspying against U.S. targets from abroad. Many cybersecurity experts expect this report to address activities relating to the "Chinese government's broad policy of encouraging theft of intellectual property through cyberattacks." (37) Then-DOD Secretary Leon Panetta reportedly stated, "it's no secret that Russia and China have advanced cyber capabilities." (38)

Cyberthieves are individuals who engage in illegal cyber-attacks for monetary gain. (39) Examples include an organization or individual who illegally accesses a technology system to steal and use or sell credit card numbers and someone who deceives a victim into providing access to a financial account. One estimate has placed the annual cost of cybercrime to individuals in 24 countries at $388 billion. (40) However, given the complex and sometimes ambiguous nature of the costs associated with cybercrime, and the reluctance in many cases of victims to admit to being attacked, there does not appear to be any publicly available, comprehensive, reliable assessment of the overall costs of cyberattacks.

Cyberwarriors are agents or quasi-agents of nation-states who develop capabilities and undertake cyberattacks in support of a country's strategic objectives. (41) These entities may or may not be acting on behalf of the government with respect to target selection, timing of the attack, and type(s) of cyberattack and are often blamed by the host country when accusations are levied by the nation that has been attacked. Often, when a foreign government is provided evidence that a cyberattack is emanating from its country, the nation that has been attacked is informed that the perpetrators acted of their own volition and not at the behest of the government. In August 2012 a series of cyberattacks were directed against Saudi Aramco, the world's largest oil and gas producer and most valuable company, according to the New York Times. The attacks compromised 30,000 of the company's computers and the code was apparently designed to disrupt or halt the production of oil. Some security officials have suggested that Iran may have supported this attack. However, numerous cyberwarrior groups, some with linkages to nations with objectives counter to those of Saudi Arabia, have claimed credit for this incident. (42)

Cyberactivists are individuals who perform cyberattacks for pleasure, philosophical, or other nonmonetary reasons. Examples include someone who attacks a technology system as a personal challenge (who might be termed a "classic" hacker), and a "hacktivist" such as a member of a group who undertakes an attack for political reasons. The activities of these groups can range from simple nuisance-related denial of service attacks to disrupting government and private corporation business processes.

Ascertaining information about the aggressor and their capabilities and intentions is very difficult. (43) The threats posed by these aggressors coupled with the United States' proclivity to be an early adopter of emerging technologies, (44) which are often interdependent and contain vulnerabilities, make for a complex environment when considering operational responses, policies, and legislation designed to safeguard the nation's strategic economic and security interests.

Legislative Branch Efforts to Address Cyber Threats (45)

More than 50 federal statutes address various aspects of cybersecurity either directly or indirectly, but there is no overarching framework legislation in place. While revisions to most of those laws have been proposed over the past few years, no major cybersecurity legislation has been enacted since 2002. Recent legislative proposals, including many bills introduced in the 111th and 112th Congresses, have focused largely on issues in 10 broad areas: national strategy and the role of government, reform of the Federal Information Security Management Act (FISMA), protection of critical infrastructure (including the electricity grid and the chemical industry), information sharing and cross-sector coordination, breaches resulting in theft or exposure of personal data such as financial information, cybercrime, privacy in the context of electronic commerce, international efforts, research and development, and the cybersecurity workforce.

For most of those topics, at least some of the bills addressing them have proposed changes to current laws. Several of the bills specifically focused on cybersecurity received committee or floor action, but none became law prior to the 113th Congress. Many observers believe that enactment of cybersecurity legislation will be attempted again in the 113th Congress.

Executive Branch Actions to Address Cyber Threats (46)

In 2008, the George W. Bush Administration established the Comprehensive National Cybersecurity Initiative (CNCI) through National Security Presidential Directive 54/Homeland Security Presidential Directive 23 (NSPD-54/HSPD-23). Those documents are classified, but the Obama Administration released a description of them in March 2010. (47) Goals of the 12 initiatives in that description include consolidating external access points to federal systems; deploying intrusion detection and prevention systems across those systems; improving research coordination and prioritization and developing "next-generation" technology, information sharing, and cybersecurity education and awareness; mitigating risks from the global supply chain for information technology; and clarifying the federal role in protecting critical infrastructure.

In December 2009, the Obama Administration created the position of White House Cybersecurity Coordinator. The responsibilities for this position include government-wide coordination of cybersecurity-related issues, including overseeing the implementation of the CNCI. The Coordinator works with both the National Security and Economic Councils in the White House. However, the Coordinator does not have direct control over agency budgets, and some observers argue that operational entities such as the DOD's National Security Agency (NSA) have far greater influence over federal cybersecurity issues. (48) Reportedly, in October 2012 President Obama signed a classified Presidential Decision Directive that "enables the military to act more aggressively to thwart cyberattacks on the Nation's web of government and private computer networks. (49)

The complex federal role in cybersecurity involves both securing federal systems, assisting in protecting nonfederal systems, and pursuing military, intelligence, and law enforcement community detection, surveillance, defensive, and offensive initiatives. Under current law, all federal agencies have cybersecurity responsibilities relating to their own systems and dozens of agencies have government-wide aggressor, issue, and critical infrastructure sector-specific responsibilities and legislative authorities. The cybersecurity roles and responsibilities of these agencies are often complementary but at times are overlapping or competing. In the absence of enactment of cybersecurity legislation, the White House issued an executive order on February 12, 2013, "directing federal departments and agencies to use their existing authorities to provide better cybersecurity for the Nation." (50)

Medical Countermeasures to Chemical, Biological, Radiological, and Nuclear Terrorism

Frank Gottron, Specialist, Science and Technology Policy (fgottron@crs.loc.gov, 7-5854)

The anthrax attacks of 2001 highlighted the nation's vulnerability to biological terrorism. The federal government responded to these attacks by increasing efforts to protect civilians against chemical, biological, radiological, and nuclear (CBRN) terrorism. Successful deployment of effective medical countermeasures, such as drugs or vaccines, could reduce the effects of a CBRN attack. The federal government has created several programs over the last decade to develop, procure, and distribute CBRN medical countermeasures. Despite these efforts, the pharmaceutical industry has developed few new countermeasures, and many experts question the government's ability to quickly distribute countermeasures following an attack. The 113th Congress will likely consider the effectiveness of the federal efforts and whether these programs should be continued, modified, or ended.

In 2004, Congress passed the Project BioShield Act (P.L. 108-276) to encourage the private sector to develop CBRN medical countermeasures by creating a guaranteed federal market. (51) Congress advance appropriated $5.6 billion for Project BioShield acquisitions for FY2004-FY2013. Through August 2013, the federal government had obligated $2.8 billion of this advance appropriation to acquire CBRN countermeasures. Additionally, Congress removed $2.3 billion from this account through rescission or transfers to other programs. The 113th Congress passed the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (PAHPRA, P.L. 113-5) that authorized $2.8 billion in advance funding for Project BioShield through FY2018. The 113th Congress may still consider whether modifying the funding amount or providing appropriations on an annual basis would improve the program's efficiency or performance.

In light of the current fiscal environment, Congress is likely to increase its scrutiny of the planning, coordination, and accountability of federal efforts to research, develop, and procure CBRN medical countermeasures. To this end, PAHPRA requires additional planning and transparency by requiring detailed annual countermeasure strategy and implementation plans and a coordinated multi-year budget. Congress may also consider nontraditional programs that may improve the efficiency of existing efforts, such as the President's request to create a nonprofit, nongovernmental strategic investment corporation to provide capital and business advice to small companies developing medical countermeasure-related technologies. (52)

Distribution of existing medical countermeasures during a CBRN emergency remains a challenge for the federal government and its partners. The federal government maintains programs that stockpile and distribute stores of medical countermeasures, including the Centers for Disease Control and Prevention's Strategic National Stockpile (SNS). Many experts question the sufficiency of these federal programs, and whether state governments have sufficient plans, organization, and resources to receive and effectively disseminate federal stockpiles. (53) Congress is likely to continue evaluating the effectiveness of federal programs and may also consider whether to augment these efforts with other stockpiling and distribution methods. Such methods include stockpiling countermeasures at homes or businesses and using the U.S. Postal Service to distribute countermeasures. These proposals may raise some concerns regarding program costs, unintended use of countermeasures, and local implementation.

BioWatch: Detection of Aerosol Release of Biological Agents

Sarah A. Lister, Specialist in Public Health and Epidemiology (slister@crs.loc.gov, 7-7320)

The BioWatch program--launched in 2003--deploys sensors in more than 30 large U.S. cities to detect the possible aerosol release of a bioterrorism pathogen, in order that medications can be distributed to the population before exposed individuals become ill. Air filters in the sensors are collected daily and tested for biological agents. The DHS Office of Health Affairs (OHA) is responsible for system management, including operational costs and procurements. The Under Secretary for Science and Technology advises the Secretary regarding research and development efforts and priorities in general, in support of the department's missions. The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) is responsible for some aspects of BioWatch laboratory testing. Local jurisdictions are responsible for the public health response to a bioterrorism incident. BioWatch has not detected such an incident since its inception, although it has detected pathogens of interest; scientists believe that natural airborne "background" levels of these pathogens may exist in certain regions.

In July 2012, the Los Angeles Times published the first in a series of investigative articles criticizing the performance of the current BioWatch system. (54) The articles claimed that the system is prone to "false alarms" and is also insufficiently sensitive to detect an actual incident. The DHS Assistant Secretary for Health Affairs published a response disputing these claims. (55) In addition, some state and local health officials defended the program, saying, among other things, that it has fostered collaboration among federal, state, and local officials, who would be called upon to work together in response to an actual incident. (56)

Because prompt treatment may minimize casualties in a bioterrorism event, federal officials have sought to reduce the inherent delay in daily BioWatch filter collection by developing so-called autonomous sensors. These sensors would analyze filter deposits and transmit results in near-real time. OHA has been pursuing procurement of this type of sensor, which it terms Generation 3, or Gen-3, since 2007. However, according to the Government Accountability Office (GAO), "BioWatch Gen-3 has a history of technical and management challenges." (57) In particular, "Gen-3's estimated life cycle cost, some $5.8 billion, makes it one of the largest DHS acquisitions. And the question is, whether it justifies that level of investment." (58) GAO recommended that before continuing the acquisition, "DHS reevaluate the mission need and alternatives and develop performance, schedule, and cost information in accordance with guidance and good acquisition practices." (59) In June 2013, DHS announced that it had paused Gen-3 deployment to conduct an analysis of alternatives in response to GAO's recommendation. (60)

The performance of the BioWatch program has attracted the attention of Members of Congress since the program's inception. Congressional appropriators have at times sought to limit funding for program expansion and/or called for program reviews. (61) Authorizing committees in each Congress since the 108th have held hearings on the program. In the 112th Congress, the House Committee on Energy and Commerce began an investigation of the program, which it has continued in the 113th Congress. (62) In August 2013, committee leadership asked GAO for a new study of the technical capabilities of the Gen-3 system intended for deployment. (63)

Continuity of Government Operations

R. Eric Petersen, Specialist in American National Government, Government and Finance Division (epetersen@crs.loc.gov, 7-0643)

Continuity of government operations refers to programs and initiatives to ensure that governing entities are able to recover from a wide range of potential operational interruptions. Government continuity planning may be viewed as a process that incorporates preparedness capacities, including agency response plans, employee training, recovery plans, and the resumption of normal operations. These activities are established in part to ensure the maintenance of civil authority, provision of support for those affected by an incident, infrastructure repair, and other actions in support of recovery. Arguably, any emergency response presumes the existence of an ongoing, functional government to fund, support, and oversee recovery efforts. Interruptions for which contingency plans might be activated include localized acts of nature, accidents, technological emergencies, and military or terrorist attack-related incidents.

Current authority for executive branch continuity programs is provided in a 2007 National Security Presidential Directive (NSPD) 51 on National Continuity Policy. (64) To support the provision of essential government activities, NSPD 51 sets out a policy "to maintain a comprehensive and effective continuity capability composed of continuity of operations (65) and continuity of government (66) programs in order to ensure the preservation of our form of government (67) under the Constitution and the continuing performance of national essential functions (NEF) under all conditions."

Executive Order (E.O.) 12656, Assignment of Emergency Preparedness Responsibilities, was issued in 1988, (68) and assigns national security emergency preparedness responsibilities to federal executive departments and agencies. E.O. 12656 requires the head of each federal department and agency to "ensure the continuity of essential functions in any national security emergency by providing for: succession to office and emergency delegation of authority in accordance with applicable law; safekeeping of essential resources, facilities, and records; and establishment of emergency operating capabilities." Subsequent sections require each department to carry out specific contingency planning activities in its areas of policy responsibility.

Although contingency planning authorities are chiefly based on presidential directives, Congress could consider whether current authorities accurately reflect current government organization and goals, the costs of these programs, potential conflicts that might result from departments and agencies complying with different authorities, and the extent to which government contingency planning ensures that the federal executive branch will be able to carry out its responsibilities under challenging circumstances.

Federal Facility Security: Federal Protective Service

Shawn Reese, Analyst in Emergency Management and Homeland Security Policy (sreese@crs.loc.gov, 7-0635)

For more information, see CRS Report R41138, Federal Building, Courthouse, and Facility Security.

The federal government's real property (69) is comprised over 900,000 assets. (70) The security of this federal property affects not only the daily operations of the federal government but the safety of federal employees and the public. A number of these properties are multi-tenant federal buildings that house federal courthouses, and some congressional state and district offices. Security of federal facilities includes physical security assets such as closed-circuit television cameras, barrier material, and security personnel.

The Federal Protective Service (FPS) is designated as the lead "Government Facilities Sector Agency" for the National Infrastructure Protection Plan, and as such is responsible for the protection and security of federally owned and leased buildings, property, and personnel. In general, FPS undertakes security and law enforcement activities that reduce vulnerability to criminal and terrorist threats, which include all-hazards based risk assessments; emplacement of criminal and terrorist countermeasures, such as vehicle barriers and closed-circuit video cameras; law enforcement response; assistance to federal agencies through facility security committees; and emergency and safety education programs. FPS also assists other federal agencies, such as the U.S. Secret Service at National Special Security Events. FPS employs approximately 1,225 law enforcement officers, investigators, and administrative personnel; and it administers the services of approximately 15,000 contract security guards. (71) Federal agencies protected by FPS pay fees that are established by the Office of Management and Budget. FPS's funding is derived from those fees.

Federal facility security practices have been subject to criticism by government auditors and security experts, and have been the topic of congressional oversight hearings. Elements that have received criticism include the use of private security guards, FPS management and security practices, and the coordination of federal facility security. According to FPS, it plans to (1) improve the strategic methods used in identifying and reducing actual and potential threats directed at FPS-protected facilities; (2) restore proactive monitoring activities to mitigate the increased risk to these facilities; (3) improve the service provided by contract security guard forces through acquisition strategies and "intensive" monitoring and training; (4) develop risk-based security standards tied to intelligence and risk-assessments; (5) refine business practices through stakeholder interface; and (6) implement a capital plan that will improve security and customer service. (72) Congress will likely continue oversight of FPS management and operations in the 113th Congress to ensure that it has the necessary staffing, resources, and funding to carry out its mission.

Food Defense

Sarah A. Lister, Specialist in Public Health and Epidemiology (slister@crs.loc.gov, 7-7320)

Foods may be intentionally contaminated for purposes of terrorism, fraud (e.g., the dilution of a valuable commodity), or other harmful intent. Food safety efforts have long focused on protecting against unintentional contaminants, such as infectious pathogens or pesticide residues. Since the 2001 terrorist attacks, regulators and others have added a focus on food defense, the protection of the food supply from deliberate or intentional acts of contamination or tampering. (73) Large-scale foodborne outbreaks can sicken hundreds of people. Sales of affected commodities--as well as unaffected commodities that the consuming public perceives to be involved--can suffer. An intentional incident of food contamination, especially if it were an act of terrorism, could have serious economic consequences, in addition to any illnesses it caused.

Federal food safety responsibility rests primarily with the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA). USDA's Food Safety and Inspection Service (FSIS) regulates most meat and poultry and some egg products; FDA is responsible for the safety of most other foods. (74) State and local authorities assist with inspection, outbreak response, and other food safety functions, and regulate retail establishments. Noting the complexity of the nation's food and agriculture sector, which accounts for about one-fifth of the nation's economy, DHS says that "FDA is responsible for the safety of 80 percent of the food consumed in the United States ... FDA regulates $240 billion of domestic food and $15 billion of imported food. In addition, roughly 600,000 restaurants and institutional food service providers, an estimated 235,000 grocery stores, and other food outlets are regulated by State and local authorities that receive guidance and other technical assistance from FDA." (75)

The 111th Congress enacted a comprehensive food safety law, the Food Safety Modernization Act (FSMA, P.L. 111-353), focused mainly on foods regulated by FDA. (76) FSMA attempts to prevent both intentional and unintentional contamination of foods through a variety of strategies to prevent food contamination and through enhanced regulatory authorities. However, FDA has not yet implemented some of the law's provisions. (77) In addition, FSMA requires the Secretaries of Health and Human Services and Agriculture to develop a National Agriculture and Food Defense Strategy, implementation plan, and research agenda. This strategy and the accompanying documents have not yet been published. (78)

GAO has named food safety as a high-risk issue, citing the fragmentation of federal oversight, among other concerns. (79) GAO specifically noted delays in the implementation of the nation's food and agriculture defense policy, Homeland Security Presidential Directive 9 (HSPD-9). This directive, issued by the George W. Bush Administration in 2004, assigns various emergency response and recovery responsibilities to USDA, FDA, DHS, and other agencies. GAO found that there is no centralized coordination of HSPD-9 implementation efforts, and recommended that DHS take on this role to assure that the nation's food and agriculture defense policy is fully in place. In addition, GAO recommended that the executive branch develop a government-wide performance plan for all of its food safety activities.

Security of Pipelines

Paul Parfomak, Specialist in Energy and Infrastructure Policy, Resources, Science and Industry Division (pparfomak@crs.loc.gov, 7-0030)

For more information, see CRS Report R41536, Keeping America's Pipelines Safe and Secure: Key Issues for Congress.

Nearly a half-million miles of high-volume pipeline transport natural gas, oil, and other hazardous liquids across the United States. (80) These pipelines are integral to U.S. energy supply and link to other critical infrastructure, such as power plants, airports, and military bases. While a fundamentally safe means of transport, gas and oil pipelines, globally, have been a favored target of terrorists, militants, and organized crime. Since September 11, 2001, U.S. officials have foiled plots to attack jet fuel pipelines at the John F. Kennedy International Airport and to attack the Trans Alaska Pipeline System and a major natural gas pipeline in the eastern United States. (81) Although Al Qaeda attacks on U.S. pipelines are perceived as unlikely, attacks by individuals unaffiliated with organized or terrorist groups may be a growing concern. For example, in August 2011, federal agents arrested a U.S. citizen--acting alone--who confessed to planting an explosive device under a natural gas pipeline in Oklahoma. (82) In June 2012, a man was critically injured attempting to plant an explosive device along a natural gas pipeline in Plano, TX. (83) One specific area of pipeline security that has recently come to the fore is cybersecurity. In March 2012, the Industrial Control Systems Cyber Emergency Response Team within DHS identified an ongoing series of cyber intrusions among U.S. natural gas pipeline operators dating back to December 2011 "positively identified ... as related to a single campaign." (84)

Federal pipeline security activities are led by the Pipeline Security Division within the Transportation Security Administration (TSA). Although the TSA has statutory authority to regulate pipeline security, to date, these activities have relied upon voluntary industry compliance with federal security guidance and TSA security best practices. TSA has been engaged in a number of specific pipeline security initiatives since 2003, including developing security standards; implementing measures to mitigate security risk; building and maintaining stakeholder relations, coordination, education, and outreach; and monitoring compliance with voluntary pipeline security standards. The cornerstone of TSA's pipeline activities is its Corporate Security Review (CSR) program, wherein the agency visits the largest pipeline and natural gas distribution operators to review their security plans and inspect their facilities. TSA has completed CSRs covering the largest 100 pipeline systems (84% of total U.S. energy pipeline throughput) and is in the process of conducting second CSRs of these systems. (85) In 2008, the TSA initiated its Critical Facility Inspection Program (CFI) to conduct in-depth inspections of all the critical facilities of the 125 largest pipeline systems in the United States. TSA concluded the CFI program in May 2011, having completed a total of 347 facility inspections throughout the United States. (86)

While TSA is generally credited with significantly strengthening U.S. pipeline security, Congress has had ongoing concerns about the adequacy of the agency's pipeline security standards, its overall level of resources, and certain aspects of its CSR program. Because the TSA believes the most critical U.S. pipeline systems generally meet or exceed industry security guidance, the agency believes it achieves better security with voluntary guidelines, and maintains a more cooperative and collaborative relationship with its industry partners as well. (87) But some Members of Congress, as well as the Department of Transportation's Office of Inspector General, have questioned the adequacy of voluntary, rather than mandatory, federal pipeline security requirements. (88) In 2010, a Member expressed concern that TSA's pipeline division--with 13 fulltime equivalent staff--did not have sufficient staff to carry out a federal pipeline security program on a national scale. (89) In a 2010 report, the Government Accountability Office recommended a number of specific actions to improve TSA's pipeline security priority-setting and CSR assessment processes, such as transmitting CSR recommendations in writing to pipeline operators. (90) To date, there has been no federal legislation directly addressing these concerns, but they may receive additional attention in the 113th Congress. In addition to these specific issues, the next Congress may assess how pipeline security fits together with the U.S. pipeline safety program, administered by the DOT, in the nation's overall strategy to protect transportation infrastructure. While the DOT and TSA have distinct missions, pipeline safety and security are intertwined.

Security of Chemical Facilities

Dana A. Shea, Specialist in Science and Technology Policy (dshea@crs.loc.gov, 7-6844)

For more information, see CRS Report R42918, Chemical Facility Security: Issues and Options for the 113th Congress and CRS Report R43070, Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia.

Congress provided DHS authority to regulate security at chemical facilities in the Homeland Security Appropriations Act, 2007 (P.L. 109-295, [section]550). This authority expires on October 4, 2013. Congressional policymakers are considering a range of actions in the 113th Congress, including an extension or revision of this authority. Even before the explosion of the West Fertilizer Company in West, TX, various stakeholders had criticized the content of DHS regulation and the effectiveness and pace of its implementation and recommended changes to the underlying statute. Recommended statutory changes include broadening the regulated community, (91) enabling the federal government to require adoption of particular security measures at facilities, (92) and increasing access to currently confidential vulnerability information. Other stakeholders, including many industry representatives, support an extension of the existing authority without any changes. (93)

DHS regulates chemical facilities for security purposes. The Obama Administration and other stakeholders have determined that existing regulatory exemptions, such as for community water systems and wastewater treatment facilities, pose potential risks. Environmental and "right-to-know" groups additionally advocate that Congress include requirements for facilities to adopt or identify "inherently safer technologies" and widely disseminate security-related information to first responders and employees. The regulated industry generally opposes granting DHS the ability to require implementation of inherently safer technologies or other specific security measures. They question the maturity and applicability of the inherently safer technology concept as a security measure and cite the need to tailor security approaches for each facility. The Obama Administration has identified potential security concerns if chemical security-related information is more broadly disseminated, but the discovery that information about the chemical inventory of the West Fertilizer Company was not effectively shared between federal agencies has led to reconsideration of existing information sharing policies. The Obama Administration issued Executive Order 13650, Improving Chemical Facility Safety and Security, to begin a multiagency effort to coordinate federal efforts. Challenges facing policymakers include whether to extend or change the existing statutory authority, whether to mandate consideration or implementation of inherently safer technologies, what the appropriate balance is between protecting security information and releasing information to non-governmental stakeholders, and how to assess and potentially ameliorate costs associated with implementing required security measures.

While the DHS regulatory program is still in its early stages, it has experienced significant implementation challenges and delays. Few of the thousands of regulated chemical facilities have fully complied with the DHS chemical security regulations, (94) the Government Accountability Office estimates that it will be seven to nine years before DHS has completed review and approval of information submitted by regulated facilities, (95) and congressional policymakers have questioned the efficacy of DHS regulatory activities. (96) Policymakers performing oversight of the program face critical decisions regarding program changes. Significant changes could increase implementation delays, but such changes may be most effective if made early in the program's implementation, rather than later after companies have invested in specific security measures.

Security of Wastewater and Water Utilities

Claudia Copeland, Specialist in Resources and Environmental Policy, (ccopeland@crs.loc.gov, 7-7227)

For more information, see CRS Report RL32189, Terrorism and Security Issues Facing the Water Infrastructure Sector.

The systems that comprise the nation's water supply and water quality infrastructure have long been recognized as being potentially vulnerable to terrorist attacks of various types, including physical disruption, bioterrorism/chemical contamination, and cyber attack. Across the country, these systems consist of 16,000 publicly owned wastewater treatment facilities and 168,000 public drinking water facilities, plus thousands of miles of pipes, aqueducts, water distribution, and sewer lines. Damage or destruction could disrupt the delivery of vital human services, threatening public health and the environment, or possibly causing loss of life. In recognition, Congress and other policymakers have considered a number of initiatives in this area, including enhanced physical security of water infrastructure facilities, improved communication and coordination, and research. Recent policy interest has focused on two issues: (1) security of wastewater utilities, and (2) whether to include wastewater and water utilities in chemical plant security regulations implemented by DHS.

When Congress created DHS in 2002, (97) it gave DHS responsibility to coordinate information to secure the nation's critical infrastructure, including the water sector, through partnerships with the public and private sectors. Under Homeland Security Presidential Directive 7, the Environmental Protection Agency (EPA) is the lead federal agency for protecting wastewater and drinking water utility systems, because EPA has regulatory authority over both types of water utilities under the Clean Water Act and the Safe Drinking Water Act, respectively. Separately, in P.L. 107-188, (98) Congress required drinking water systems serving more than 3,300 persons to conduct vulnerability analyses and to submit the assessments to EPA. Congressional committees have on several occasions considered legislation to encourage or require wastewater treatment facilities to similarly conduct vulnerability assessments and develop site security plans (such as H.R. 2883 in the 111th Congress), but no bill has been enacted.

Congress also has been considering requirements for wastewater and drinking water utilities in connection with legislation to establish risk-based and performance-based security standards at the nation's chemical plants (see discussion of "Security of Chemical Facilities"). Issues debated for some time include (1) whether to preserve an existing exemption for water utilities from chemical facility standards or include them in the scope of DHS rules under the Chemical Facility Anti-Terrorism Standards program (CFATS); and (2) whether water utilities that store or use extremely hazardous substances, such as chlorine gas, should be required to consider the use of different chemicals or safer processes (so-called "inherently safer technology"). A third issue is what roles EPA and DHS should play in implementing such requirements and generally in overseeing homeland security at wastewater and drinking water utilities. There has been considerable debate about coordination between EPA and DHS and whether EPA's lead role for the water utility sector should be altered. Water utilities have urged Congress not to create a dual or split regulatory arrangement between two agencies, arguing that EPA has long-standing expertise in wastewater and water regulatory and security issues. Others have argued that DHS should have overall responsibility.

Legislative proposals addressing these issues that received committee approval in the 112th Congress differed in a number of respects but reflected apparent consensus regarding water utility issues: they would have preserved the existing exemption from the DHS CFATS program, and none would have mandated inherently safer technology. Further, none would have altered EPA's lead role for the water utility sector. None of these bills was enacted by the 112th Congress. A provision of the Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6), extended authority for the existing CFATS program through October 4, 2013. In addition, legislation that would extend statutory authority for the CFATS program for another year, through October 4, 2014 (H.R. 2217), has passed the House and been reported by the Senate Appropriations Committee. (99)

Other legislation introduced in the 113th Congress (S. 67, the Secure Water Facilities Act) would add coverage of wastewater and drinking water facilities in the CFATS program and would require certain facilities in the water sector that handle chemicals to take action to reduce the consequences of a terrorist attack, such as using different chemicals, or changing to inherently safer technology (IST). The bill would not alter EPA's lead role in regulating wastewater facilities and community water systems for security purposes.

Since the terrorist attacks of 2001, wastewater and water utilities have been engaged in numerous activities to assess potential vulnerabilities and strengthen facility and system protections. Congressional oversight of this sector's homeland security activities has been limited but could be of interest in the 113th Congress.

Transit Security

David Randall Peterman, Analyst in Transportation Policy (dpeterman@crs.loc.gov, 7-3267)

For more information, see CRS Report RL33512, Transportation Security: Issues for the 113th Congress.

Bombings of passenger trains in Europe and Asia in the past several years illustrate the vulnerability of passenger rail systems to terrorist attacks. Passenger rail systems--primarily subway systems--in the United States carry about five times as many passengers each day as do airlines, over many thousands of miles of track, serving stations that are designed primarily for easy access. The increased security efforts around air travel have led to concerns that terrorists may turn their attention to "softer" targets, such as transit or passenger rail. A key challenge Congress faces is balancing the desire for increased rail passenger security with the efficient functioning of transit systems, with the potential costs and damages of an attack, and with other federal priorities.

The volume of ridership and number of access points make it impractical to subject all rail passengers to the type of screening airline passengers undergo. Consequently, transit security measures tend to emphasize managing the consequences of an attack. Nevertheless, steps have been taken to try to reduce the risks, as well as the consequences, of an attack. These include vulnerability assessments; emergency planning; emergency response training and drilling of transit personnel (ideally in coordination with police, fire, and emergency medical personnel); increasing the number of transit security personnel; installing video surveillance equipment in vehicles and stations; and conducting random inspections of bags, platforms, and trains.

The challenges of securing rail passengers are dwarfed by the challenge of securing bus passengers. There are some 76,000 buses carrying 19 million passengers each weekday in the United States. Some transit systems have installed video cameras on their buses, and Congress has provided grants for security improvements to intercity buses. But the number and operation characteristics of transit buses make them all but impossible to secure.

The Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53), passed by Congress on July 27, 2007, included provisions on passenger rail and transit security and authorized $3.5 billion for FY2008-FY2011 for grants for public transportation security. The act required public transportation agencies and railroads considered to be high-risk targets by DHS to have security plans approved by DHS ([section][section]1405 and 1512). Other provisions required DHS to conduct a name-based security background check and an immigration status check on all public transportation and railroad frontline employees ([section][section]1414 and 1522), and gave DHS the authority to regulate rail and transit employee security training standards ([section][section]1408 and 1517).

In 2010 TSA completed a national threat assessment for transit and passenger rail, and in 2011 completed an updated transportation systems-sector specific plan, which established goals and objectives for a secure transportation system. The three primary objectives for reducing risk in transit are to:

* mitigate risks to high-risk/high-consequence assets;

* expand operational deterrence activities; and

* enhance information sharing. (100)

TSA surface transportation security inspectors conduct assessments of transit systems (and other surface modes) through the agency's Baseline Assessment for Security Enhancement (BASE) program. The agency has also developed a security training and security exercise program for transit (I-STEP), and its Visible Intermodal Prevention and Response (VIPR) teams conduct operations with local law enforcement officials, including periodic patrols of transit and passenger rail systems, to create "unpredictable visual deterrents."

The House Committee on Homeland Security's Subcommittee on Transportation Security held a hearing in May 2012 to examine the surface transportation security inspector program. As discussed at the hearing, the number of inspectors had increased from 175 in FY2008 to 404 in FY2011 (full-time equivalents). Issues considered at the hearing included the lack of surface transportation expertise among the inspectors, many of whom were promoted from screening passengers at airports; the administrative challenge of having the surface inspectors managed by federal security directors who are located at airports, and who themselves typically have no surface transportation experience; and the security value of the tasks performed by surface inspectors. (101)

The Department of Homeland Security (DHS) provides grants for security improvements for public transit, passenger rail, and occasionally other surface transportation modes under the Urban Area Security Initiative program (see Table 1). The vast majority of the funding goes to public transit providers. The Transit Security Grant Program (TSGP) did not receive a specified amount of funding in FY2012, as Congress left program funding allocations to the discretion of DHS.

In a February 2012 report, the Government Accountability Office found opportunity for duplication among four DHS state and local security grant programs with similar goals, one of which was the public transportation security grant program. (102) The Obama Administration proposed consolidating several of these programs in the FY2013 budget. This proposal was not supported by congressional appropriators, though appropriators have expressed concerns that grant programs have not focused on areas of highest risk and that significant amounts of previously appropriated funds have not yet been awarded to recipients. (103)

Border Security and Trade

Southwest Border Issues

Spillover Violence

Kristin M. Finklea, Specialist in Domestic Security (kfinklea@crs.loc.gov, 7-6259)

For more information, see CRS Report R41075, Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence.

There has been an elevated level of drug trafficking-related violence within and between the drug trafficking organizations (DTOs) in Mexico, and some estimates have placed the number of drug trafficking-related deaths in Mexico between December 2006 (when Mexican President Felipe Calderon began his campaign against the DTOs) and December 2012 (when the Calderon administration ended) at somewhere between 45,000 and 55,000. (104) Mexican DTOs have been at war with each other as well as with the Mexican police and military personnel who are attempting to enforce the drug laws in northern Mexico along the U.S. border. Further, in an illegal marketplace, such as that of illicit drugs, where prices and profits are elevated due to the risks of operating outside the law, violence or the threat of violence becomes the primary means for settling disputes. (105) This has generated concern among U.S. policy makers that the violence in Mexico might spill over into the United States. U.S. officials deny that the drug trafficking-related violence in Mexico has resulted in a spillover into the United States, but they acknowledge that the prospect is a concern. (106)

Mexican DTOs are reportedly the greatest drug trafficking threat to the United States. (107) Mexican DTOs either (1) transport or (2) produce and transport drugs north across the United States-Mexico border. After being smuggled across the border by DTOs, the drugs are distributed and sold within the United States. The illicit proceeds may then be laundered or smuggled south across the border. The proceeds may also be used to purchase weapons in the United States that are then smuggled into Mexico. The United States is the largest marketplace for illegal drugs and sustains a multi-billion dollar market in illegal drugs--thus partially fueling the threat posed by the DTOs. (108) While drugs are the primary goods trafficked by the DTOs, they also generate income from other illegal activities, such as the smuggling of humans and weapons, counterfeiting and piracy, kidnapping for ransom, and extortion. Reports of these crimes in the United States have contributed to the fear of spillover violence. (109)

One issue that may be of concern to Congress involves determining exactly what constitutes spillover violence above and beyond the level of drug trafficking-related violence that has previously existed in the United States. The interagency community has defined "spillover violence" as violence targeted primarily at civilians and government entities--excluding trafficker-on-trafficker violence (110)--while other experts and scholars have maintained that trafficker-on-trafficker violence is central to spillover. (111) A clear definition of spillover that can be used to track and analyze trends is central to debating policy options to prevent or mitigate such violence. (112) A related issue that Congress may consider is how to prevent drug trafficking-related violence in Mexico from spilling into the United States. Potential options that experts have presented include increasing border enforcement efforts; providing additional aid to Mexico to support the disruption of organized crime, implementation of judicial reform, enhancement of a 21st century border, and strengthening communities; (113) reducing drug demand in the United States; and decriminalizing or legalizing certain drugs.

Illicit Proceeds and the Southwest Border

Kristin M. Finklea, Specialist in Domestic Security (kfinklea@crs.loc.gov, 7-6259)

The flow of money outside legal channels not only presents challenges to law enforcement, but it also has a significant nexus with homeland security policy. Proceeds from illegal enterprises are sometimes used to fund broader destabilizing activities, such as smuggling, illegal border crossings, or more violent activities, such as the operations of the FARC (Revolutionary Armed Forces of Colombia) and right-wing paramilitary groups in Colombia. (114) While this is an issue with a global scope, this section focuses specifically on the policies affected by movement of illicit funds across the Southwest border.

The sale of illegal drugs in the United States generates somewhere between $18 billion and $39 billion in annual wholesale proceeds for Mexican and Colombian drug trafficking organizations (DTOs). (115) Money from the DTOs' illegal sale of drugs in the United States is moved south across the border into Mexico. Moving these funds from the United States into Mexico fuels the drug traffickers' criminal activities. This money is not directly deposited into the U.S. financial system, but rather is illegally laundered through mechanisms such as bulk cash smuggling and the Black Market Peso Exchange, (116) or placed in financial institutions, cash-intensive front businesses, prepaid or stored value cards, or money services businesses. (117)

The development of new technologies has provided outlets through which DTOs may conceal their illicit proceeds. (118) Increasingly, the use of stored value cards, (119) mobile banking systems, and other technologies allows traffickers to move profits more quickly and stealthily. In addition, profits that the Mexican DTOs generate from the sale of Colombian cocaine can be moved directly from the United States to the source country without traversing through middlemen. (120)

While bulk cash smuggling has been an important means by which criminals have moved illegal profits from the United States into Mexico, traffickers have also turned to stored value cards to move money. With these cards, criminals are able to avoid the reporting requirement under which they would have to declare any amount over $10,000 in cash moving across the border. Current federal regulations regarding international transportation only apply to monetary instruments as defined under the Bank Secrecy Act (BSA). (121) A stored value card is not, however, considered a monetary instrument under current law, and thus is not subject to these international transportation regulations. The Financial Crimes Enforcement Network (FinCEN) has issued a proposed rule that would amend the definition of "monetary instrument," for the purposes of BSA international monetary transport regulations, to include prepaid access devices. (122) Policy makers may debate the proper balance between providing for the ease of legitimate monetary transactions and inhibiting the movement of proceeds from illegal activities.

Various departments and agencies--including the Drug Enforcement Administration, Federal Bureau of Investigation, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, and FinCEN--share responsibility for combating drug-related activity and the flow of illicit proceeds both along the Southwest border and throughout the United States. Many of these agencies are also represented in Mexico, increasing U.S.-Mexican bilateral cooperation. Further, while some efforts explicitly target money laundering and bulk cash smuggling, other efforts are more tangentially related. For instance, operations targeting southbound firearms smuggling may intercept individuals smuggling not only weapons, but cash proceeds from illicit drug sales as well.

Cross-Border Smuggling Tunnels

Kristin M. Finklea, Specialist in Domestic Security (kfinklea@crs.loc.gov, 7-6259)

Mexican traffickers rely on cross-border tunnels to smuggle persons and drugs, as well as other contraband, from Mexico into the United States. The use of smuggling tunnels has increased not only in frequency but in the sophistication of the tunnels themselves. (123) More than 150 tunnels have been discovered along the Southwest border since the 1990s; (124) notably, there has been an 80% uptick in tunnels detected since 2008.125 Early tunnels were rudimentary "gopher hole" tunnels dug on the Mexican side of the border, traveling just below the surface, and popping out on the U.S. side as close as 100 feet from the border. Slightly more advanced tunnels relied on existing infrastructure, which may be shared by neighboring border cities such as Nogales, AZ, in the United States and Nogales, Sonora, in Mexico. These interconnecting tunnels may tap into storm drains or sewage systems, allowing smugglers to move drugs further and more easily than in tunnels they dug themselves. The most sophisticated tunnels can have rail, ventilation, and electrical systems. One of the most elaborate and sophisticated of such tunnels discovered to date was found in November 2011 in San Diego, CA. It stretched 612 yards in length, boasted electric rail cars, lighting, reinforced walls, and wooden floors, and its discovery resulted in the seizure of 32 tons of marijuana. (126) In July 2012, three sophisticated drug smuggling tunnels were uncovered along the Southwest border in less than a week. (127)

U.S. law enforcement uses various tactics to detect these cross-border tunnels. Law enforcement may use sonic equipment to detect the sounds of digging and tunnel construction and seismic technology to detect blasts that may be linked to tunnel excavation. Another tool for tunnel detection is ground penetrating radar. (128) However, factors including soil conditions, tunnel diameter, and tunnel depth can limit the effectiveness of this technology.

Despite these tools, U.S. officials have acknowledged that law enforcement currently does not have technology that is reliably able to detect sophisticated tunnels. (129) Rather, tunnels are more effectively discovered as a result of human intelligence and tips. U.S. officials have noted the value of U.S.-Mexican law enforcement cooperation in detecting, investigating, and prosecuting the criminals who create and use the cross-border tunnels. (130) As a result, the 113th Congress may not only consider how to best help U.S. law enforcement develop technologies that can keep pace with tunneling organizations, but also examine whether existing bi-national law enforcement partnerships are effective and whether they may be improved to enhance investigations of transnational criminals.

Cargo Security

Marc R. Rosenblum, Specialist in Immigration Policy (mrosenblum@crs.loc.gov, 7-7360)

For more information, see CRS Report R43014, U.S. Customs and Border Protection: Trade Facilitation, Enforcement, and Security.

Approximately 25 million cargo containers arrived at U.S. ports of entry (POE) in FY2012, down from a high point of 26 million in 2006, but up 4% over FY2011. (131) U.S. Customs and Border Protection (CBP), within the Department of Homeland Security (DHS), is America's primary trade enforcement agency, and CBP seeks to balance the benefits of efficient trade flows against the demand for cargo security and the enforcement of U.S. trade laws. Thus, the overarching policy question with respect to incoming cargo is how to minimize the risk that weapons of mass destruction (WMD), illegal drugs, and other contraband will enter through a U.S. port of entry (POE), while limiting the costs and delays associated with such enforcement. Six laws enacted between 2002 and 2007 included provisions related to the trade process and cargo security. (132)

CBP's current trade strategy emphasizes "risk management" and a "multi-layered" approach to enforcement. (133) With respect to cargo security, risk management means that CBP segments importers into higher and lower risk pools and focuses security procedures on higher-risk flows, while expediting lower-risk flows. CBP's "multi-layered approach" means that enforcement occurs at multiple points in the import process, beginning before goods are loaded in foreign ports and continuing months or years after the time goods have been admitted into the United States. In recent years, congressional attention to cargo security has focused on one of CBP's primary tools for risk management, the Customs-Trade Partnership Against Terrorism (C-TPAT) trusted trader program, and on the statutory requirement that 100% of incoming maritime cargo containers be scanned abroad prior to being loaded on U.S.-bound ships. Congress also faces perennial questions about spending levels on POE infrastructure and personnel.

Customs-Trade Partnership Against Terrorism (C-TPAT)

The Customs-Trade Partnership Against Terrorism (C-TPAT) is a voluntary public-private and international partnership that permits certain import-related businesses to register with CBP and perform security tasks prescribed by the agency. In return C-TPAT members are recognized as low-risk actors and are eligible for expedited import processing and other benefits. (134) CBP established C-TPAT in November 2001 following the September 11, 2001 (9/11), terrorist attacks, and the program was authorized as part of the Security and Accountability for Every Port Act of 2006 (SAFE Port Act, P.L. 109-347).

Some Members of Congress and some CBP officials favor increased participation in C-TPAT and related programs as a way to facilitate legal trade flows. (135) Yet some businesses have criticized the program for providing inadequate membership benefits, especially in light of the time and financial investments required to become certified as C-TPAT members. (136) In particular, even with expedited processing, C-TPAT members may face delays during the import process as a result of limited coordination between CBP and the other 46 government agencies that play a role in trade enforcement. Thus, while many large import-related businesses have joined C-TPAT, the Congressional Research Service (CRS) estimates that only about 6% of all eligible import-related businesses and about 8% of eligible customs brokers have joined the program. (137) Congress may consider legislation to increase C-TPAT benefits or take other steps to encourage C-TPAT participation and thereby facilitate lawful trade flows. (138)

Yet there may be no easy way to substantially expand C-TPAT benefits. In the case of land ports, the primary trusted trader benefit is access to dedicated lanes where wait times may be shorter and more predictable. But adding lanes at land ports is difficult because many of them are located in urban areas with limited space for expansion and with limited ingress and egress infrastructure. (139) In the case of maritime imports, the primary trusted trader benefit is a reduced likelihood of secondary inspection. (140) But only about 4% of all maritime containers currently are selected for such an inspection, (141) so C-TPAT membership may offer little practical advantage in this regard. In addition, some CBP officials have told CRS that further reduction in C-TPAT inspections may raise security risks because smugglers may establish clean companies and join the program in order to game the system. (142)

100% Scanning Requirement

Section 231 of the SAFE Port Act directed the Department of Homeland Security (DHS), in coordination with the Department of Energy (DOE), the private sector, and foreign governments, to pilot an integrated system in three foreign ports to scan 100% of cargo containers destined for the United States from those ports. (143) Section 232 of the law required that 100% of cargo containers imported into the United States be screened by DHS to identify high-risk containers, and that 100% of containers identified as high risk also be scanned through non-intrusive inspection (NII) and radiation detection equipment before arriving in the United States. (144) In 2007, Section 1701 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act) (P.L. 110-53) amended the SAFE Port Act to require that by July 1, 2012, 100% of maritime containers imported to the United States--that is, from all ports, whether or not they are identified as high-risk--be scanned by NII and radiation detection equipment before being loaded onto a U.S.-bound vessel in a foreign port. Nonetheless, as of August 2012, just 1% of cargo was scanned with NII before being loaded on U.S.-bound ships--and only about 5% of cargo was subject to NII scanning at any point prior to entering the United States. (145)

On May 2, 2012, DHS Secretary Janet Napolitano notified Members of Congress that she would exercise her authority under the 9/11 Act to extend the deadline for 100% scanning. (146) The decision to delay implementation of the 100% scanning program partly reflects the department's findings from its evaluation of the pilot program. In its final report to Congress on the program, CBP identified three main obstacles to implementing 100% scanning at all foreign ports. (147) First, 100% scanning requires significant host state and private sector cooperation, but some foreign governments and business groups do not support 100% scanning. Second, 100% scanning would be logistically difficult. Initial pilots were deployed in relatively low-volume ports with natural chokepoints, but many cargo containers pass through large volume ports with more varied port architectures. Third, 100% scanning would be costly. In February 2012, the Congressional Budget Office (CBO) estimated that 100% scanning at foreign ports would cost an average of $8 million per shipping lane to implement, or a total of about $16.8 billion for all 2,100 shipping lanes. (148) Port operators and foreign partners also absorb additional costs associated with fuel and utilities, staffing, and related expenses. More generally, 100% scanning conflicts with DHS's overall approach to risk management, which seeks to focus scarce inspection resources on the highest risk containers. (149)

Some Members of Congress have expressed frustration that DHS has made little progress toward implementing 100% scanning. (150) Congress may continue to monitor the 100% scanning requirement and encourage DHS to scan a higher proportion of inbound cargo. On the other hand, in light of the difficulties DHS has identified, Congress may consider changes to the 100% scanning requirement, potentially including provisions to allow DHS to scan less than 100% of U.S.-bound cargo or to allow certain scanning to occur within U.S. ports rather than abroad. In its report to accompany the Department of Homeland Security Appropriations Bill, 2014 (H.R. 2217), the House Appropriations Committee directed DHS, in light of the department's finding that 100% scanning is cost-prohibitive, to submit an alternative strategy for cargo scanning to Congress by January 1, 2014. (151)

Port of Entry (POE) Infrastructure and Personnel

In light of the substantial flow of cargo and travelers at ports of entry (also see "Immigration Inspections at Ports of Entry"), one perennial issue for Congress is how to allocate resources for CBP Office of Field Operations (OFO) personnel and for port infrastructure. Some in Congress have argued that inadequate personnel and infrastructure have contributed to costly delays and unpredictable wait times at ports of entry, particularly at land ports on the U.S.-Mexico border. (152) In general, Congress has invested more heavily since 2011 in enforcement personnel between ports of entry (i.e., U.S. Border Patrol agents) than in OFO officers (also see "Enforcement between Ports of Entry"). (153) The Obama Administration's FY2014 budget request proposed to increase OFO personnel by 3,477 officers (on top of 21,775 officers deployed in FY2013) through a combination of appropriations and increased user fees, but the House-passed DHS appropriations act (H.R. 2217) included funding for only about 800 new officers, while the Senate-reported version of the bill would support 1,850 officers. (154) Other legislation under consideration in both chambers also would require CBP to deploy additional officers at POEs. (155)

DHS also has proposed to expand POE inspection services while controlling costs by forming public-private partnerships (PPPs) with private sector and/or sub-federal government agencies to support customs and immigration services at certain ports of entry. Current law generally prohibits Customs and Border Protection from receiving reimbursement for POE services or from collecting extra fees as compensation for providing services outside of normal business hours, and so limits CBP's authority to form such partnerships. (156) But pursuant to the Administration's FY2013 budget request, section 560 of the FY2013 DHS appropriations act (Division D of P.L. 113-6) established a pilot program to permit CBP to enter into up to five PPPs to support customs and immigration services at certain ports of entry. The Administration's FY2014 request included similar language regarding five pilot projects, and requested authority to expand the partnerships program by permitting DHS to accept donations of real and personal property (including monetary donations) from private parties and state and local government entities for the purpose of constructing or expanding POE facilities. The House-passed Department of Homeland Security Appropriations Act, 2014 (H.R. 2217) does not include language supporting the Administration's request, and the Trade Facilitation and Trade Enforcement Reauthorization Act of 2013 (S. 662/H.R. 3004) would strike the existing pilot program. On the other hand, the Senate-reported version of H.R. 2217 would reauthorize the PPP pilot program, and also would meet the Administration's request to authorize CBP to accept donations for the purpose of constructing or operating POEs. (157)

Domestic Nuclear Detection

Dana A. Shea, Specialist in Science and Technology Policy (dshea@crs.loc.gov, 7-6844)

Congress has emphasized the need to detect and interdict smuggled nuclear and radiological material before it enters the United States, funding investment in nuclear detection domestically and abroad. DHS has adopted a strategy of securing the border through emplacement of radiation portal monitors and non-intrusive imaging equipment. Some experts have criticized this combined system as insufficient to detect all smuggled special nuclear material. DHS has spent several years developing, testing, and evaluating next-generation detection equipment. Several of these next-generation systems, the Advanced Spectroscopic Portal and the Cargo Advanced Automated Radiography System, did not meet testing and evaluation milestones, lagged performance and timeline expectations, and ultimately were not procured. (158)

DHS has deployed radiation portal monitors and other nuclear and radiological material detection equipment since its establishment. In 2005, DHS established a new office, the Domestic Nuclear Detection Office (DNDO), to research, develop, and procure needed necessary detection equipment and coordinate DHS nuclear detection activities located mainly in Customs and Border Protection, U.S. Coast Guard, and the Transportation Security Administration. The Government Accountability Office (GAO) and other groups have questioned the efficacy of DNDO's efforts to develop a next-generation radiation detection system.

As mentioned in the preceding section, Congress also has required DHS to scan all containerized cargo entering the United States for nuclear and radiological material. DHS has not yet met this requirement, and stakeholders question whether the DHS approach will meet this requirement in the future. In addition, a shortfall of a key neutron detection material, helium-3, has forced a reconsideration of the current nuclear detection approach. (159) DHS has invested in testing new neutron-detection materials and refitting deployed systems with alternative neutron-detection capabilities. As currently deployed systems approach their design lifetime, DHS and congressional decision-makers face questions whether to recapitalize these systems or further invest in next-generation technology.

DHS activities to detect smuggled radiological and nuclear materials at the U.S. border are part of a large interagency effort to develop a global nuclear detection architecture (GNDA). Congress made DHS, through DNDO, responsible for coordinating federal efforts within the GNDA and implementing this architecture domestically. A GNDA strategic plan has been released, and DHS has developed an implementation plan for its portion of the GNDA. (160) Other agencies have not yet developed equivalent implementation plans. While GAO has identified weaknesses in the GNDA strategic plan, it has also generally supported DHS's development of an implementation plan.

The 113th Congress may continue its oversight over the development, testing, and procurement of current and next-generation nuclear detection equipment, interagency coordination in nuclear detection, the sufficiency of the global nuclear detection architecture that links this equipment together, and DHS's approach to the helium-3 shortage.
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Title Annotation:What Is Homeland Security-Transportation Worker Identification Credential (TWIC)
Author:Painter, William L.
Publication:Congressional Research Service (CRS) Reports and Issue Briefs
Article Type:Report
Geographic Code:1USA
Date:Sep 1, 2013
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