Observations on Implementing the Western Hemisphere Travel
Initiative (20-DEC-07, GAO-08-274R).
Securing the nation's borders has taken on added importance since
the terrorist attacks of September 11, 2001. For years, millions
of citizens of the United States, Canada, and Bermuda could enter
the United States from certain parts of the Western Hemisphere
using a wide variety of documents, including a driver's license
issued by a state motor vehicle administration or a birth
certificate, or in some cases for U.S. and Canadian citizens,
without showing any documents. In the heightened national
security environment following September 11, we have previously
reported that documents like driver's licenses and birth
certificates can easily be obtained, altered, or counterfeited
and used by terrorists to travel into and out of the country. To
help provide better assurance that border officials have the
tools and resources to establish that people are who they say
they are, as called for in the 9/11 Commission report, section
7209 of the Intelligence Reform and Terrorism Prevention Act of
2004, as amended, requires the Secretary of Homeland Security, in
consultation with the Secretary of State, to develop and
implement a plan that requires a passport or other document or
combination of documents that the Secretary of Homeland Security
deems sufficient to show identity and citizenship for U.S.
citizens and citizens of Bermuda, Canada, and Mexico when
entering the United States from certain countries in North,
Central, or South America. The Department of Homeland Security's
(DHS) and the Department of State's (State) effort to specify
acceptable documents and implement document requirements at 326
air, land, and sea ports of entry is called the Western
Hemisphere Travel Initiative (WHTI). DHS is required by law to
implement WHTI document requirements at the land and sea ports of
entry on the earlier of two dates: June 1, 2009, or 3 months
after DHS and State certify that certain implementation
requirements have been met. U.S. Customs and Border Protection
(CBP), a component within DHS, is the lead agency in charge of
inspecting travelers seeking to enter the United States at air,
land, and sea ports of entry. CBP has created a WHTI program
office within CBP's Office of Field Operations to manage efforts
to propose acceptable documents, implement document requirements,
and oversee technological upgrades. In fiscal year 2008, DHS
requested about $252 million for WHTI implementation, including
approximately $166 million for related technological upgrades--to
develop new software and to deploy that software and new hardware
at 13 of the highest-volume U.S. land ports of entry. According
to DHS, implementation of the WHTI document requirements and
related technological upgrades will support its strategic goal of
facilitating legitimate trade and travel while enforcing all U.S.
trade, immigration, drug, consumer protection, intellectual
property, and agricultural laws and regulations at the borders.
According to DHS, the technological upgrades are designed to
improve customer service by avoiding a more time-intensive and
intrusive inspection process that would result from meeting WHTI
document requirements without this technology. In May 2006, we
reported our observations on steps taken and challenges faced by
DHS and State in implementing WHTI in five main areas: (1)
proceeding through the rulemaking process, (2) making a decision
about what documents individuals will need when they enter the
United States, (3) carrying out a cost-benefit study, (4)
resolving technical and programmatic issues, and (5) managing
implementation of the program. This report provides updated
information in those five areas.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-08-274R
ACCNO: A79391
TITLE: Observations on Implementing the Western Hemisphere
Travel Initiative
DATE: 12/20/2007
SUBJECT: Border control
Border security
Documentation
Entry security
Homeland security
Identification cards
Immigration
International travel
Port security
Program evaluation
Security policies
Security regulations
Security threats
Strategic planning
Technology assessment
Program implementation
Western Hemisphere Travel Initiative
******************************************************************
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GAO-08-274R
United States Government Accountability Office Washington, DC 20548
December 20, 2007
The Honorable Loretta Sanchez
Chairwoman
Subcommittee on Border, Maritime and Global Counterterrorism
Committee on Homeland Security
House of Representatives
The Honorable John M. McHugh
The Honorable Louise M. Slaughter
House of Representatives
Subject: Observations on Implementing the Western Hemisphere Travel
Initiative
Securing the nation's borders has taken on added importance since the
terrorist attacks of September 11, 2001. For years, millions of citizens
of the United States, Canada, and Bermuda could enter the United States
from certain parts of the Western Hemisphere using a wide variety of
documents, including a driver's license issued by a state motor vehicle
administration or a birth certificate, or in some cases for U.S. and
Canadian citizens, without showing any documents. In the heightened
national security environment following September 11, we have previously
reported that documents like driver's licenses and birth certificates can
easily be obtained, altered, or counterfeited and used by terrorists to
travel into and out of the country.^1 To help provide better assurance
that border officials have the tools and resources to establish that
people are who they say they are, as called for in the 9/11 Commission
report,^2 section 7209 of the Intelligence Reform and Terrorism Prevention
Act of 2004, as amended, requires the Secretary of Homeland Security, in
consultation with the Secretary of State, to develop and implement a plan
that requires a passport or other document or combination of documents
that the Secretary of Homeland Security deems sufficient to show identity
and citizenship for U.S. citizens and citizens of Bermuda, Canada, and
Mexico when entering the United States from certain countries in North,
Central, or South America.^3
The Department of Homeland Security's (DHS) and the Department of State's
(State) effort to specify acceptable documents and implement document
requirements at 326 air,
land, and sea ports of entry is called the Western Hemisphere Travel
Initiative (WHTI).^4 On January 23, 2007, DHS implemented WHTI document
requirements at air ports of entry.^5 DHS is required by law to implement
WHTI document requirements at the land and sea ports of entry on the
earlier of two dates: June 1, 2009, or 3 months after DHS and State
certify that certain implementation requirements have been met.^6 Some
members of Congress have expressed concerns about whether DHS would be
prepared to implement WHTI document requirements before June 1, 2009, in a
manner that does not disrupt cross-border travel even if the agencies made
the required certifications. The consolidated appropriations bill for
fiscal year 2008--which includes the DHS appropriation--contains language
to prevent WHTI document requirements from being implemented before June
1, 2009.^7 As of December 19, 2007, the consolidated appropriations bill
for fiscal year 2008 had been passed by Congress but not signed by the
President.
^1GAO, Counterfeit Documents Used to Enter the United States from Certain
Western Hemisphere Countries Not Detected, GAO-03-713T (Washington, D.C.:
May 13, 2003).
^2U.S. NationalCommission on Terrorist Attacks Upon the United States, The
9/11 Commission Report (Washington: GPO, 2004).
^3Pub. L. No. 108-458, S 7209, 118 Stat. 3638, 3823 (2004), amended by
Department of Homeland Security Appropriations Act, 2007, Pub. L. No.
109-295, S 546, 120 Stat. 1355, 1386-87 (2006). This provision applies to
citizens of Bermuda, Canada, and Mexico entering the United States as
nonimmigrant visitors.
U.S. Customs and Border Protection (CBP), a component within DHS, is the
lead agency in charge of inspecting travelers seeking to enter the United
States at air, land, and sea ports of entry. CBP has created a WHTI
program office within CBP's Office of Field Operations to manage efforts
to propose acceptable documents, implement document requirements, and
oversee technological upgrades. In fiscal year 2008, DHS requested about
$252 million for WHTI implementation, including approximately $166 million
for related technological upgrades--to develop new software and to deploy
that software and new hardware at 13 of the highest-volume U.S. land ports
of entry. According to DHS, implementation of the WHTI document
requirements and related technological upgrades will support its strategic
goal of facilitating legitimate trade and travel while enforcing all U.S.
trade, immigration, drug, consumer protection, intellectual property, and
agricultural laws and regulations at the borders. According to DHS, the
technological upgrades are designed to improve customer service by
avoiding a more time-intensive and intrusive inspection process that would
result from meeting WHTI document requirements without this technology.
In May 2006, we reported our observations on steps taken and challenges
faced by DHS and State in implementing WHTI in five main areas: (1)
proceeding through the rulemaking process, (2) making a decision about
what documents individuals will need when
they enter the United States, (3) carrying out a cost-benefit study, (4)
resolving technical and programmatic issues, and (5) managing
implementation of the program.^8 This letter provides updated information
in those five areas.
^4Ports of entry are government-designated locations where DHS inspects
persons and goods to determine whether they may be lawfully admitted into
the country. A land port of entry may have more than one border crossing
point where DHS inspects travelers for admissibility into the United
States.
^5 See Documents Required for Travelers Departing from or Arriving in the
United States at Air Ports of Entry from within the Western Hemisphere, 71
Fed. Reg. 68,412 (Nov. 24, 2006).
^6These requirements include (1) National Institute of Standards and
Technology certification that DHS and State have selected a card
architecture that meets or exceeds the security standards set by the
International Organization for Standardization, (2) sharing the technology
used for the passport card with the governments of Canada and Mexico,
(3) submitting a detailed justification to the House and Senate Committees
on Appropriations concerning the fee that will be charged to individuals
by the U.S. Postal Service for the passport card, (4) developing an
alternative procedure for groups of children entering the United States
under adult supervision and with parental consent, (5) ensuring that the
infrastructure needed to process the passport cards has been installed at
ports of entry, (6) training CBP officers at those ports of entry to use
the new technology, (7) ensuring that the passport card is available to
U.S. citizens, and (8) establishing a single date for implementing the
program at sea and land ports of entry.
^7H.R. 2764, 110th Cong. S 545 (as amended and passed by Senate, Dec. 18,
2007 and by House, Dec. 19, 2007).
To address these five objectives, we reviewed documents related to
implementing the WHTI document requirements at air, land, and sea ports of
entry, as well as related plans for technological upgrades in vehicle
lanes at the land ports of entry. These documents included the final rule
making for WHTI documents at air ports of entry, the notice of proposed
rule making for WHTI documents at land and sea ports of entry, the notice
of proposed rule making for the passport card, the regulatory assessment
for the land and sea notice of proposed rule making, and the draft
programmatic environmental assessment for the land and sea notice of
proposed rule making. We considered information presented in the
programmatic environmental assessment related to projected effects of WHTI
document requirements and related technologies on wait times at the
border, but we did not evaluate the methods used to derive those
projections. In addition, we examined memoranda of agreement and the
corresponding business plans between DHS and Washington and Vermont--two
states developing enhanced driver's licenses that are expected to be
acceptable under WHTI. We also analyzed the public comments submitted by
organizations in response to DHS's and State's land and sea notice of
proposed rule making and DHS's regulatory assessment to identify specific
concerns, such as possible economic effects of the rule and the timeline
for document requirements, that stakeholders submitted for DHS and State
to consider when drafting a final rule. We did not assess the comments for
merit, nor did we evaluate the methods or data any of the commenters used
to draw conclusions. During our review, we interviewed DHS officials,
including those from the WHTI program office, the Screening Coordination
Office, and the CBP Office of Information and Technology. We also
interviewed officials from State's Bureau of Consular Affairs. We asked
these DHS and State officials about current requirements for crossing the
border, how those requirements may change under WHTI, the status of the
rule-making process for WHTI land and sea and the passport card, the
impact of WHTI on existing border-crossing programs, and other WHTI
implementation issues such as CBP staffing, training, communication, and
funding needs. We also visited land ports of entry and/or interviewed CBP
officers and supervisors in the field at the land ports of Alexandria Bay,
New York; Buffalo, New York; Fort Covington, New York; Ogdensburg, New
York; Blaine, Washington; Laredo, Texas; San Ysidro, California; Otay
Mesa, California; and Calexico, California. We asked these officials about
the current procedures for crossing the border, technology that is
currently in place at these ports of entry, plans DHS has to install new
technology at these ports of entry, effects that are anticipated from
changing current inspection procedures and implementing the new
documentary requirements, the strategy for communicating the new
requirements to the public, and any unique operational challenges of these
ports of entry that may be affected by WHTI. At the ports of entry we
visited, we observed the inspection areas, as well as other port
facilities, in order to understand how the changes expected under WHTI may
affect the current operational procedures at these ports of entry. We
chose these ports of entry, based on geographic location and size of the
port, to provide examples of the operational
environment of CBP officers. Because we selected a nonprobability sample
of ports to visit, we cannot generalize our work from these ports of entry
to all land ports of entry.
^8GAO, Observations on Efforts to Implement the Western Hemisphere Travel
Initiative on the U.S. Border with Canada, GAO-06-741R (Washington, D.C.:
May 25, 2006).
Whereas we focused our 2006 review on the U.S.-Canadian land border, we
expanded our scope in this work review to include the U.S.-Mexican land
border. We also considered WHTI implementation at air and sea ports of
entry, but placed a particular emphasis on the land environment, because,
according to DHS data, about three-quarters of all travelers enter the
United States through the nation's 163 land ports of entry, and because
volume and infrastructure concerns likely will present more complex
implementation challenges at the land ports. Our work was conducted from
May 2007 through November 2007 in accordance with generally accepted
government auditing standards.
Results in Brief
Since May 2006, DHS and State have taken important actions toward
implementing WHTI document requirements. We reported in May 2006 that DHS
and State had not made decisions about what documents would be acceptable,
had not begun the rule-making process to finalize those decisions, and
were in the early stages of studying costs and benefits. In addition, DHS
and State needed to choose a technology to use with the new passport
card--which State is developing specifically for WHTI. DHS also faced an
array of implementation challenges, including training staff and informing
the public. Since our 2006 work, DHS and State have taken the following
actions in the five main areas:
o Proceeding through the Rule-Making Process. DHS and State finalized
the rulemaking process for document requirements at air ports of
entry. The agencies also published a notice of proposed rule making
for document requirements at land and sea ports of entry and
anticipate finalizing the requirements in late fall 2007.
o Deciding on Acceptable Documents. By publishing a final rule for
document requirements at air ports of entry, DHS and State have
established acceptable documents for air travelers. The notice of
proposed rule making for land and sea proposes acceptable documents.
DHS plans to implement document requirements at land and sea ports of
entry as early as summer 2008.
o Performing a Cost-Benefit Study. DHS has performed a cost-benefit
study as required by the rule-making process. Data limitations
prevented DHS from quantifying the precise effect that WHTI will have
on wait times--a substantial source of uncertainty in its analysis.
DHS plans to do baseline studies at selected ports before WHTI
implementation so that it can compare the effects of WHTI document
requirements on wait times after the requirements are implemented.
o Resolving Technical and Programmatic Issues. DHS and State have
selected technology to be used with the passport card. To support the
card and other documents that use the same technology, DHS is planning
technological upgrades at land ports of entry. These upgrades are
intended to help reduce traveler wait times and more effectively
verify identity and citizenship. DHS has outlined a general strategy
for the upgrades at the 39 highest volume land ports, beginning in
January 2008 and continuing over roughly the next 2 years.
o Managing Implementation. DHS has developed general strategies for
implementing WHTI--including staffing and training. According to DHS
officials, they also plan to work with a contractor on a public
relations campaign to communicate clear and timely information about
document requirements. In addition, State has approved contracting
with a public relations firm to assist with educating the public,
particularly border resident communities about the new passport card
and the requirements of WHTI in general.
As DHS moves toward calendar year 2008, it faces challenges deploying
technology and staffing and training officers to use it. In the absence of
a fiscal year 2008 appropriation, funding for the contract has been
uncertain. According to DHS officials, they are exploring options for
funding a contract award, using available funds, if an appropriation is
not immediately forthcoming.^9 However, DHS has not yet determined when
and to what extent funds will be available. As of December 2007, lacking
certainty about how it will fund the contract award and when it will
publish the final rule, DHS could not provide a specific date by which it
will select a contractor and begin devising specific milestones and
deadlines for the testing and deployment of new hardware. Although DHS has
devised a strategy for training officers to use the new technology, part
of its delivery is tied to the yet undetermined milestones for hardware
deployment. In addition to specific deadlines and milestones for testing
and deploying hardware, DHS intends to have the contractor determine the
plan and procedures for testing the technology and a separate contractor
to devise specific goals, objectives, and schedules for conducting a
public outreach campaign. Therefore, these plan details will not be in
place until DHS makes contract awards and the contractors selected prepare
the plans.
DHS generally agreed with our observations and said that WHTI is a major
implementation effort that has continued to evolve and progress, even as
we conducted our review. DHS noted that some aspects of WHTI
implementation plans cannot be finalized until it has issued the final
rule for WHTI land and sea document requirements. DHS officials said that
the department is taking all appropriate actions within its legal
authority to fully implement WHTI as soon as feasible, given the security
imperative driving the initiative. DHS stated that it has drafted specific
plans that are ready to be implemented when the final rule for land and
sea document requirements has been published. We acknowledge that DHS has
taken a number of actions to prepare for testing and deploying
technologies and managing the implementation of other WHTI activities.
However, as key elements of planning for program management and execution
remain uncertain, we continue to believe that DHS faces challenges
deploying technology, and staffing and training officers to use it.
^9As previously noted, the fiscal year 2008 DHS appropriation was passed by
Congress on December 19, 2007 but not yet signed by the President.
Background
The Immigration and Nationality Act,^10 its implementing regulations,^11
and CBP policies and procedures for traveler inspection at all ports of
entry require officers to establish, at a minimum, the nationality of
individuals and whether they are eligible to enter the country. All
travelers attempting to enter the country through ports of entry undergo
primary inspection, which is a preliminary screening procedure to identify
those legitimate travelers who can readily be identified as admissible. At
land ports of entry, the primary inspection process in vehicle lanes
begins with screening the vehicle and automatically capturing the license
plate information of a vehicle using a license plate reader (where
installed). License plate readers automatically read front and rear
license plates of vehicles as they enter the primary inspection area, with
the data simultaneously queried--that is, checked against CBP and law
enforcement databases. Officers are to examine travelers' documentation of
citizenship, such as passports, or in some cases for
U.S. or Canadian citizens, officers may accept an oral declaration of
citizenship if they are satisfied that the traveler is a U.S. or Canadian
citizen. Visitors arriving as pedestrians enter an equivalent primary
inspection area, generally inside a CBP building. Persons whose
admissibility cannot be readily determined, persons selected as part of a
random selection process, or persons suspected of violations of customs,
agriculture, or other laws are subjected to a more detailed review called
a secondary inspection in a different area of the port.
The current document requirements for travelers entering the United States
by sea or land generally depend on the nationality of the traveler and
whether or not the traveler is entering the United States from certain
countries within the Western Hemisphere.^12 Currently, U.S. citizens
arriving at land or sea ports of entry from these Western Hemisphere
countries can present a wide variety of documents to border officials to
establish their right to enter the United States. In addition, in some
cases, border officials may admit U.S. citizens with no documentation at
all--if the official is satisfied by the traveler's oral declaration of
citizenship. In most cases, Canadian citizens and citizens of the British
Overseas Territory of Bermuda are also not currently required to present a
passport and visa when entering the United States as nonimmigrant visitors
by sea or land from certain parts of the Western Hemisphere,^13 but must
satisfy border officials of their identity, citizenship, and admissibility
and present any proof of citizenship in their possession.^14 Under these
conditions, CBP officers at the ports of entry must assess the validity of
thousands of documents that differ in appearance, information, and
security features. For example, CBP officials at one port of entry we
visited noted that there are 16 variations of the Florida driver's license
currently in use. According to DHS and State,
the wide range of documents that can be presented creates the danger that
non-U.S. citizens could fraudulently present themselves as U.S. citizens.
^10See 8 U.S.C. S 1225(a)
^11See 8 C.F.R. S 235.1(a), (b), and (f)(1).
^12The Western Hemisphere countries addressed in this report are those in
North, South, or Central America, and associated islands and waters. These
islands are Bermuda and the islands located in the Caribbean Sea, except
Cuba.
^13A nonimmigrant alien is an international traveler that wishes to enter the
United States on a temporary basis for tourism, medical treatment,
business, temporary work, study, or other similar reasons.
^14As previously mentioned, in some cases Canadian citizens may be admitted
with an oral declaration of citizenship alone.
Balancing border security with the facilitation of free movement of
admissible people and legitimate goods is a challenge, particularly on the
land border, which presents complex operational challenges. One reason
land borders are more challenging is that CBP officers there lack advance
traveler manifest information from commercial carriers, like the
information they have at air and sea ports, to prescreen travelers.
Another reason is the tremendous amount of traffic that must be processed
by CBP officers in a short amount of time because the majority of people
entering the U.S. cross a land border. For example, in fiscal year 2005
over 319 million border crossings by travelers were processed at official
ports of entry located along about 7,500 miles of land border. During the
primary inspection process, most travelers at the land border physically
hand over documentation such as a driver's license and birth certificate,
or a passport, to prove their identity and citizenship. The CBP officer
may check the information contained in the documents against CBP and law
enforcement databases and watch lists to determine whether any derogatory
information exists. To the extent possible, officers are required to query
law enforcement databases for all travelers in a vehicle. When an
individual presents a driver's license for inspection, if the CBP officer
queries the document, the information on the license must be hand-typed
into the computer, because it cannot be machine read at CBP primary
inspection stations. According to one DHS study, under the current
conditions the total median time for the primary inspection process is
approximately 45 seconds.^15 However, wait times at the border can be
influenced by a variety of factors that are associated with, but not
directly related to, document requirements. For example, the physical
layout of the ports, the volume and type of traffic that typically crosses
the border at a given port, and the frequency with which CBP officers
query documents against law enforcement databases maintained by CBP and
other law enforcement agencies are all factors that can influence wait
times.
The streamlined travel documentation requirements of WHTI are intended to
enhance security at the nation's ports of entry while facilitating
legitimate trade and travel. However, streamlining and implementing new
document requirements for citizens of the United States, Canada, Mexico,
and Bermuda is one initiative in DHS's multiple activities designed to
enhance border security at and between official ports of entry. Since DHS
began operations in 2003, we have issued more than 65 reports and
testimonies about multiple efforts to secure the U.S. border. These
activities are interdependent in that successfully enhancing security in
one area may lead people who intend to unlawfully enter the United States
to attempt exploitation of other avenues of unlawful entry. The security
enhancement potential from WHTI-related activities discussed in this
letter applies solely to the official ports of entry--primarily in the
vehicle lanes for primary inspection at land borders. Among reviews
related to border security, we have ongoing work examining CBP's Secure
Border Initiative, we recently released a report about
CBP's traveler inspections^16 and have recently testified about
vulnerabilities along the border at unmanned and unmonitored locations.^17
^15See U.S. Customs and Border Protection, Western Hemisphere Travel
Initiative in the Land and Sea Environments Draft Programmatic
Environmental Assessment (Washington, D.C.: June 2007).
Proceeding through the Rule-Making Process
In May 2006, we reported that DHS and State were to publish three rules in
the Federal Register--(1) for WHTI air and sea document requirements, (2)
for WHTI land document requirements, and (3) for implementing a new
passport card to be issued by State. At the time of our May 2006 report
DHS and State had not entered the first phase of rule making for any these
three areas. (See appendix I for a general overview of the rule-making
process.)
Since our May 2006 report, DHS and State published a final rule announcing
the document requirements, with limited exceptions, for air ports of entry
on November 24, 2006, and implemented them in January 2007. Under the
final rule, U.S. citizens and nonimmigrant citizens of Canada, Mexico, and
Bermuda traveling by air between the United States and Canada, Mexico,
Central and South America, the Caribbean, and Bermuda are required to
present a valid passport or other WHTI-compliant documentation, as
specified in the final rule, to enter, or depart from, the United States.
Whereas DHS and State originally intended to combine document requirements
for air and sea ports of entry, they decided to instead combine document
requirements for sea ports of entry with the requirements for land ports
of entry. DHS and State did so because they had recently proposed allowing
the new passport card to be used at seaports and needed to delay
implementation until the card would be available for use there, and
because recent legislation had required them to certify to Congress that
they would be implementing the new requirements at sea and land ports at
the same time.
With regard to travel via land and sea ports of entry, on June 26, 2007,
DHS and State published a notice of proposed rule making to propose WHTI
land and sea document requirements and to seek public comments on the
requirements in advance of issuing a final rule. In the notice of proposed
rule making, DHS outlined proposed WHTI document requirements for U.S.
citizens and nonimmigrant aliens, operational and security considerations
at the border, and special rules for specific groups of travelers (such as
children under 16).
During the public comment period on the proposed land and sea rule, DHS
and State received 600 submissions from the public, which, according to
DHS, included over 1,350 separate comments. According to the Director of
the WHTI program office, that office has completed a draft of its response
to the comments, which, as of November 2007, was being reviewed at DHS. We
analyzed the 600 stakeholder submissions and found that 323 were from
stakeholders who identified themselves with various organizations and 277
were from individual stakeholders who were not affiliated with
organizations. These stakeholders commented on issues such as concerns
about the implementation timeline,
support for the passport card and enhanced driver's licenses, support for
WHTI alternative processes for select populations--such as children under
16 and children traveling in organized groups--and support for the
continued use of trusted traveler programs to cross the border. DHS and
State officials have not provided a specific date when they will publish
the final rule for WHTI land and sea document requirements, but DHS
officials have stated that they expect the final rule to be issued in late
fall 2007. DHS has announced its intention to implement the WHTI document
requirements at land and sea ports in summer 2008. The exact
implementation date is to be established in the final rule or in a
separate notice in the Federal Register.
^16GAO, Border Security: Despite Progress, Weaknesses in Traveler Inspections
Exist at Our Nation's Ports of Entry, GAO-08-219 (Washington, D.C.: Nov.
5, 2007).
^17GAO, Border Security: Security Vulnerabilities at Unmanned and Unmonitored
U.S. Border Locations, GAO-07-884T (Washington, D.C.: Sept. 27, 2007).
With regard to the passport card, State published a notice of proposed
rule making in the Federal Register in October 2006 and sent a draft final
rule to be reviewed by the Office of Management and Budget in October
2007. The notice describes the issuance process and proposed use of the
passport card, which would be an alternative form of a passport used only
by U.S. citizens to demonstrate citizenship and identity when crossing
U.S. land borders and when traveling by sea between the United States and
Canada, Mexico, the Caribbean, or Bermuda. State has proposed to issue the
passport card for less than one half the cost of a traditional passport
book and expects to begin issuing the cards to the public in spring 2008.
Making Decisions about Document Requirements
In May 2006, we reported that to implement WHTI document requirements, DHS
and State needed to decide what alternative documents, if any, will be
acceptable in lieu of a passport. DHS and State finalized these document
decisions for air ports of entry by publishing the final WHTI air rule.
The rule established that United States citizens and nonimmigrant aliens
from Canada, Bermuda, and Mexico entering the United States at air ports
of entry would generally be required to present a valid passport.^18
WHTI land and sea document requirements will be finalized when DHS and
State publish a final rule in the Federal Register for this purpose.
According to the notice of proposed rule making for land and sea, U.S.
citizens age 16 years and older would be required to present a traditional
passport, the new passport card, or a trusted traveler document.^19 Under
the proposed rule, Canadian citizens and citizens of Bermuda arriving by
land or sea would be required to show a passport, and Canadian citizens
would also be able to show valid trusted traveler cards. There are limited
circumstances in which travelers would not have to show one of these
documents. For example, U.S. and Canadian citizens age 15 years and
younger and U.S. and Canadian citizens ages 16 to 19 who are
traveling with parental permission with their school or other organized
group would be allowed to present a birth certificate, or, in the case of
U.S. citizens, other evidence of citizenship.^20 The proposed rule would
not change the documentation requirements for most Mexican nationals, who
are generally required to present a passport and visa or a Border Crossing
Card when attempting to enter the United States.^21
^18The only exceptions to the passport requirement for air travel would be
for United States citizens who are members of the U.S. armed forces
traveling on active duty, travelers who present a merchant mariner
document traveling in conjunction with maritime business, and travelers
who present a NEXUS Air card--NEXUS is one of three trusted traveler
programs designed to expedite security processing for low risk travelers
who apply and are granted membership.
^19The trusted traveler programs--NEXUS, SENTRI, and FAST--are designed to
streamline border inspection for preapproved, low-risk travelers and
commercial drivers. The NEXUS program is a joint program between the
United States and Canada. After passing a security-based vetting process
and paying an application fee, Mexican, Canadian, and U.S. citizens in
these programs are eligible for expedited passage into the United States
when traveling in designated trusted traveler lanes.
In describing how DHS intends to implement land and sea document
requirements, the notice of proposed rule making also announced DHS's
intention to discontinue allowing travelers entering the U.S. by land or
sea and claiming to be U.S. or Canadian citizens, to prove their
citizenship using only an oral declaration--that is, without showing
travel documents--on January 31, 2008. After DHS ends oral declaration and
until the WHTI document requirements are fully implemented, all U.S. and
Canadian citizens would be required to show one of the documents described
in the proposed rule or a governmentissued photo identification, such as a
driver's license, and proof of citizenship such as a birth certificate.
According to CBP officials at the ports of entry we visited, they do not
expect the end of oral declaration to represent a significant operational
change for them, because the majority of people crossing at their ports
already present documents rather than attempt entry by oral declaration
alone.
The land and sea proposed rule also provides for future consideration of
alternative documents issued by states, tribes, bands, provinces,
territories, or foreign governments if developed in accordance with
agreements between those entities and DHS. The notice of proposed rule
making specifically includes, as an example of these, a pilot program in
which DHS has entered into an agreement with the State of Washington to
develop an enhanced driver's license. This license would be available to
U.S. citizens who are also residents of Washington through its Department
of Licensing and would be accepted at any land border crossing. Similar
agreements have been signed by DHS with Arizona, Vermont, and New York.
According to CBP officials, DHS is in discussions about forming enhanced
driver's license programs with other states, including Michigan and Texas.
Enhanced driver's licenses issued by these states are to denote
citizenship and work with the technologies that CBP uses to electronically
verify other WHTI documents. For each state that decides to pursue
development of an enhanced driver's license, DHS stated that it plans to
specifically and individually evaluate the states' processes for issuing
driver's licenses to approve them for WHTI purposes. For example,
according to the director of the WHTI office, in order for a state to
produce an enhanced driver's license, DHS requires that the license be
produced at one centralized facility, which helps ensure the security of
the card. Moreover, the director said that DHS requires controls to
enhance security around the issuance process such as requiring employees
who can issue enhanced driver's licenses to be U.S. citizens, to pass a
background check, and to receive document fraud and interviewing technique
training.
^20In addition, members of the U.S. military traveling under official orders
may show a Military Identification Card, U.S. Merchant Mariners traveling
in conjunction with official maritime business may show a merchant mariner
document, and U.S. citizen cruise line passengers whose voyages begin and
end in the United States or its territories would be allowed to present a
photo identification and birth certificate or other evidence of
citizenship.
^21The Border Crossing Card permits limited travel, without additional
documentation 25 miles inside the border of the United States (75 miles if
entering through certain ports of entry in Arizona) for fewer than 30
days.
WHTI is intended to simplify and facilitate the job of CBP officers at
ports of entry by reducing the large number of documents that are
currently presented and by making them easier to verify, thereby providing
more reliable evidence of identity and citizenship to enhance security.
Adding documents for programs like the enhanced driver's license after the
publication of the final rule would expand this number again. CPB
officials told us they are not concerned about the effect of adding
enhanced driver's licenses to the set of documents acceptable for WHTI,
because no matter how many states and Canadian provinces decide to develop
them, there would still be many fewer documents under WHTI than the
thousands that are currently in use. More important, they say, is that DHS
plans to deem documents sufficient to establish identity and citizenship
only when they have (1) minimum physical security features to help
officers to verify the documents by physical inspection and (2) features
that work in concert with technological upgrades they are designing to
improve officers' ability to electronically verify the information from
the document.
Carrying Out a Cost-Benefit Study
In May 2006, we reported that decisions about documentation for crossing
the border may need to be preceded by a comprehensive and publicly
disclosed cost-benefit study, because the economic impact of WHTI may be
$100 million or more in any single year. We noted that at that time DHS
was in the early stages of studying costs and benefits, but much more work
would be needed.
In accordance with the federal requirements, DHS submitted for Office of
Management and Budget review and for public comment, regulatory
assessments along with the proposed WHTI rules for air and for land and
sea. These regulatory assessments present the costs and benefits of the
proposed documentary requirements for U.S. citizens, along with the costs
and benefits of several alternatives considered during the rule-making
process.
In laying out its analyses in the regulatory assessment for the land
environment, DHS acknowledged that its estimates are subject to
substantial uncertainty. Among other things contributing to uncertainty
was DHS's inability to quantify the effects of proposed document
alternatives on the time travelers have to wait in lines at the border for
a primary inspection. Uncertainty arises because, for example, longer wait
times at the border represent an increase in the cost of travel, which may
lead people to make fewer trips. Conversely, shorter wait times represent
a decrease in the cost of travel, which may lead people to make more
trips. The regulatory assessment described data limitations that prevented
DHS from quantifying the effect of wait times. For example, the authors of
the regulatory assessment noted that they had identified data that
described traffic crossing the border at land ports of entry, but none of
these was extensive enough or current enough to allow them to estimate
traffic volume at individual border crossing points. According to DHS, it
has designed methods to evaluate changes in wait times that result from
WHTI and related technological upgrades. DHS has begun to collect baseline
data for this effort and plans to evaluate effects at 10 to15 high-volume
ports after full implementation of the WHTI document requirements and full
deployment of related technological upgrades. As of November 2007, DHS had
conducted baseline studies at ports in Detroit, Michigan; Nogales,
Arizona; and Blaine, Washington.
Stakeholders responded to the regulatory assessment by submitting comments
during the public comment period required for the rule-making process. Of
the 323 submissions from organizations responding to the proposed rule, we
identified 13 that specifically cited concerns with how the regulatory
assessment was conducted. Of these, 12 argued that DHS had underestimated
the general impact of WHTI on the economies of Canada and the United
States or on individuals and small business owners. For example, 1 of
these 12 stakeholders offered alternative data from a 2007 study to
calculate lost spending resulting from Canadians who chose not to cross
the U.S. border rather than obtaining the required documents. This comment
asserted that if these data were used, this lost spending estimate would
be roughly four times higher than the result published in the regulatory
assessment. We have not evaluated the methods or data employed by this
study or the reliability of its outcomes. The final regulatory assessment
is to be published along with the final rule, and DHS is to consider all
public comments. DHS officials told us that they will not comment on any
considerations related to their ongoing rule-making process.
Resolving Technical and Programmatic Issues
In May 2006, we reported that if DHS and State were to proceed with
developing a card form of the U.S. passport specifically for crossing land
and sea borders, they would still need to make key decisions about the
card. Specifically, we noted that DHS and State had taken steps to
identify the passport card as a lower-cost alternative form of a passport
but had not resolved what type of technology to use to allow it to be
electronically read. Under consideration were two forms of the same
technology that would store data on a tag on the passport card. The data
could then be read and transmitted to the CBP officer using wireless
communication. One form of this technology would require that cards be in
close proximity to the device that would read them, and the other would
allow the cards to be read from a distance of as much as 30 feet away.
Since that time, DHS and State have proposed to proceed with the passport
card using radio frequency identification (RFID) technology that would
allow cards to be read from as much as 30 feet away.^22 This technology is
a newer version of technology already used for CBP's trusted traveler
programs. The technology is designed to allow information to be
transmitted to the CBP officer before the vehicle reaches the inspection
station. CBP has estimated that if all travelers were to present documents
with this technology in lanes containing the RFID readers, thus reducing
the time required to query databases and watch lists, inspection times
would be lower than when travelers present a mix of documents that
officers must either swipe through a machine reader or hand type the
salient information into the computer on a keyboard. The State-issued
passport card, DHS-issued trusted traveler cards, and any enhanced
driver's licenses developed by states or provinces are expected to use
RFID technology.
^22RFID is an automated data-capture technology that can be used to
electronically identify and store information contained on a tag.
Identification capabilities are provided using wireless communication to
transmit information. The information being transmitted is a single
identifying number that will allow the CBP database to find an
individual's personal information. This technology is similar in function
to the EZ-PASS system in use at highway toll stations.
Since our May 2006 report, in the course of drafting the proposed rule and
related studies for the land and sea document requirements, as well as
making its fiscal year 2008 budget request, DHS has more clearly
articulated its plans to employ new WHTI document requirements in
conjunction with upgrades in technology in vehicle lanes at land ports of
entry. These plans are designed to use technology to help CBP balance
border security with free movement of admissible people and legitimate
goods. According to CBP, to reach the full security benefit of WHTI,
documents must be queried against its databases and validated at the ports
of entry. Moreover, CBP has noted that in recent years, its increased
scrutiny of travelers at ports of entry has led to an increase in the time
travelers spend waiting in lines at the border for primary inspections.
CBP, therefore, has sought technological solutions to enable it to more
effectively validate approved WHTI travel documents for every traveler
while avoiding more time-intensive inspection processes at land ports of
entry. According to CBP officials, these technology upgrades are vital to
balancing CBP's security and facilitation missions.
DHS has reported that regardless of the technology used to read the
documents, there could be some increases in traffic wait times at
higher-volume ports of entry as officers and travelers adjust to new
document requirements, particularly on the northern border. By the same
token, it reported that over time, it expects standardized document
requirements and technologies that electronically read documents to result
in decreases in wait times and RFID technology to provide the most
improvement to traffic flow and wait times.
Key aspects of CBP's technology upgrade plans include the following
o replacing the current primary processing interface--the software that
manages database queries in the vehicle primary lanes--with a new
interface that will work with all WHTI-acceptable documents and will
help officers better validate document information;
o installing hardware in all vehicle lanes at the highest-volume land
ports of entry to facilitate use of the RFID technology that is to be
used to read information on trusted traveler documents, the new
passport card, and any enhanced driver's licenses currently under
development;
o upgrading current license plate readers with new versions that read
plates more accurately and are to work with the new primary processing
interface to link travelers to a specific vehicle at the time of
crossing; and
o replacing the current workstation monitors with new monitors that are
to more efficiently and effectively display the information available
through the new primary processing interface.
CBP officials told us that they plan to begin deployment of the new
primary processing interface (software) in February 2008. To test and
deploy the new hardware, CBP plans to work with a primary contractor and
has issued a request for proposal, which, among other things, would
require this contractor to establish a specific timeline and deployment
schedule for implementation. As of December 19, 2007, DHS has not yet
awarded a contract. Although the specific timeline for implementation
remains uncertain, CBP has developed and articulated a general strategy
for deploying and implementing the technology upgrades in 469 vehicle
lanes at the 39 highest-volume ports of entry over approximately the next
2 years. In its fiscal year 2008 budget request, DHS requested funding to
develop, manage, and deploy the technology upgrades at 13 high-volume
ports of entry. First, it plans to install and test the new primary
processing interface at two land ports of entry in Nogales, Arizona, and
Blaine, Washington, in February 2008 and test it for at least 90 days.
Then, CBP expects that the contractor it selects will have the new
hardware in place and operational at these two ports sometime in April
2008. When both hardware and software are in place at the two initial
ports, CBP plans to test the entire technology package for a minimum of 45
days. During this testing, CBP officials say they will resolve any
technological and human-factors issues that may arise--for example,
studying how officers interact with the new workstations to ensure that
the configuration does not slow processing or increase injury risk. After
testing and evaluation, CBP then plans to implement and deploy the
technologies--hardware and software together--at 11 more high volume ports
of entry, in fiscal year 2008. Third, in future years, it plans to move
the efforts to additional ports, until the 39 highest- volume
ports--representing 95 percent of all land border crossings--have the
technology upgrades. Finally, over time, CBP plans to install the new
primary processing interface and upgrade the license plate readers at the
land ports that are not included in the 39 highest-volume ports.
To achieve ther full benefit, RFID-enabled documents must be paired with
RFID readers at the ports of entry. Although RFID readers will not be
installed at all of the 39 highestvolume ports by DHS's planned WHTI
implementation that could be as early as summer 2008, there is, according
to DHS, an alternative technology available in all vehicle lanes at land
ports of entry that allows documents with a specific kind of data strip to
be hand swiped through an electronic document reader. The passport,
passport card, trusted traveler documents, and any enhanced driver's
licenses currently under development already have or are expected to have
this kind of data strip.^23 (See appendix II for a list of the primary
documents proposed to be acceptable under WHTI and their circumstances of
use.) According to CBP, in the absence of RFID readers in vehicle lanes,
its officers will swipe RFID-enabled documents through electronic
readers--at smaller ports not slated to receive the technology and at
ports among the 39 that have not yet received the upgrades when DHS
implements the WHTI document requirements. In addition, because the RFID
technology in traditional U.S. passports is not compatible with the RFID
technology CBP plans to install at land ports, officers will continue to
swipe U.S. passports through an electronic reader as the standard method
for electronically reading them.
Although CBP has noted that hand swiping documents through electronic
readers is more efficient than typing information into a computer on a
keyboard, it has also noted that it takes more time to read documents than
it would if the planned RFID technology were installed. Moreover, CBP has
stated that swiping the documents does not provide the benefit of
information that has been wirelessly transmitted to the officers in
advance of vehicles approaching the primary inspection booths. CBP says
this benefit of RFID technology allows officers to be aware of derogatory
data before encountering travelers and to focus more attention on
inspecting vehicles. DHS has not determined how many
ports must have operational RFID technology before implementing the
document requirements. However, according to CBP officials, the technology
is important for balancing border security with facilitation of trade and
travel, and they would like to complete the upgrades at least at the first
10 ports before the document requirements are implemented.
^23Some documents included in the proposed rule that will be acceptable in
limited and specific circumstances currently lack the ability to be
electronically read at land ports of entry (e.g., merchant mariner
documents and birth certificates).
Aside from deploying the technological upgrades, CBP is faced with making
logistical decisions about how to use the technology and the new document
requirements within its standard inspection policies and procedures. For
example, CBP headquarters or each port director will be able to decide
whether to dedicate specific lanes exclusively for RFID-enabled documents,
such as passport cards, that can be read before the vehicle approaches the
primary inspections booth, rather than lanes that are dedicated to
handling both RFID-enabled cards and other documents. At larger ports,
port directors have already dedicated lanes for people who present trusted
traveler documents that currently use this kind of technology. Another
example of a decision CBP is facing concerns how to implement its
inspection processes in light of the new technological features. For
example, for documents that transmit information to the officer in advance
of the traveler's arrival at the inspection booth, CBP is confronted with
determining whether it is necessary, from a security standpoint, to
physically inspect those documents or if a visual match between travelers
and their onscreen images would be sufficient to assess the validity of
the documents.
Managing Program Implementation
In May 2006, we reported that even after DHS and State finalize the WHTI
document requirements, DHS would face challenges implementing the program
and that failing to overcome these challenges may hinder DHS's ability to
achieve the goal of improving security while facilitating commerce and
travel. Our report noted that DHS still had much more work remaining in
developing (1) an implementation plan, (2) training programs for DHS
staff, (3) awareness programs for the public, (4) bilateral coordination
with Canada, and (5) budget estimates to support these initiatives.
Since our May 2006 report, CBP has developed general strategies in each of
the areas to help manage its implementation of WHTI document requirements
at land and sea ports of entry. Specifically, as previously discussed,
DHS's plans for implementing the new document requirements at land and sea
ports are first to end the use of oral declaration on January 31, 2008,
and then implement the WHTI document requirements at a date established
through the rule-making process--currently expected to be as early as the
summer of 2008. With regard to implementing new technologies, the request
for proposal for managing the hardware installation requires the
contractor to develop specific program management and project execution
plans that contain milestones and deadlines. Given the uncertainty
surrounding the timing of and funding for this contract award, some
details of the implementation plan for deployment of the new
technologies-- particularly the deployment timeline--are still unknown.
The WHTI program office has developed a training strategy to inform CBP
staff of the new tasks, tools, policies, and procedures that will support
WHTI. According to the strategy, DHS will make Web-based training
available to all CBP officers and, based on the implementation schedule of
new technologies, will begin to offer customized training to CBP officers
at each port of entry in conjunction with technology deployment.
The WHTI program office also plans to carry out a public information
campaign about the document requirements, using CBP's public affairs
office and additional contractor support. CBP has outlined the roles and
responsibilities of the contractor in a request for proposal and expects
to make a contract award in January 2008. Among other things, the
contractor is to provide program management support to the CBP public
affairs office and develop a communications strategic plan. This plan will
define the specific goals and objectives and establish the implementation
schedule of the communication strategy for educating the public about the
WHTI document requirements. In addition to DHS's public outreach plans,
State has approved contracting with a public relations firm to assist with
educating the public, particularly border resident communities about the
new passport card and the requirements of WHTI in general. One key
challenge of managing public information is communicating clear and timely
messages about these documents, whose costs and availability may be
uncertain and changing. For example, multiple states are in different
stages of developing an enhanced driver's license program, but it is not
clear when the licenses will be available or what other states might
participate at a later date. If DHS implements the WHTI document
requirements in summer 2008, Washington may be the only state with an
available enhanced driver's license.
Our May 2006 report also noted that DHS and State face challenges in
developing bilateral coordination with Canada as they implement WHTI.
According to DHS and State officials, they meet in bilateral working
groups with their Canadian counterparts, including meetings with Canadian
stakeholders that the DHS Offices of Screening Coordination and
International Affairs coordinate, meetings between CBP and the Canada
Border Services Agency, and meetings between State and the Passport Canada
office. In addition, CBP officers at one port of entry we visited noted
that they are in contact with their Canadian counterparts and that they
discuss potential inspection changes that result from WHTI. Finally, the
WHTI program office and State's Bureau of Consular Affairs told us they
are currently in discussions with Canadian officials regarding the
development of WHTI-acceptable alternatives to a Canadian passport, such
as an enhanced driver's license produced by the Canadian provinces and a
Canadian version of the passport card.
In May 2006, we reported that DHS had not requested funds for WHTI in its
2007 budget request and had not developed budget estimates. In fiscal year
2008, DHS's budget request included about $252 million for WHTI
implementation, with specific funding requests for program management,
communication and outreach, software development and enhancement,
deployment and implementation of technologies, and infrastructure
upgrades. In addition, DHS requested fiscal year 2008 funding for staffing
increases related to WHTI. In connection with the request, CBP developed a
strategy to hire additional officers to prepare for, among other things,
the anticipated increase in the number of secondary inspections that may
occur because of individuals attempting to cross the border without
acceptable documentation. Although DHS has requested these funds to
support WHTI implementation during fiscal year 2008, as of December 19,
2007, DHS's fiscal year 2008 appropriation was awaiting signature by the
President. According to CBP officials, the extent to which they can hire
additional officers and fund the contracts that are to support many of the
implementation efforts remains uncertain until DHS receives its 2008
allocation.
Agency Comment and Our Evaluation
We requested comments on a draft of this report from the Secretaries of
State and Homeland Security. DHS and State provided technical comments,
which we incorporated, as appropriate. In a December 17, 2007, letter, DHS
also provided written comments, which are summarized below and included in
their entirety in appendix III.
In its comments, DHS generally agreed with our observations and said that
the program is a major implementation effort that has continued to evolve
and progress, even as we conducted our review. DHS noted that some aspects
of WHTI implementation plans cannot be finalized until it has issued the
final rule for WHTI land and sea document requirements. DHS officials said
that the department is taking all appropriate actions within its legal
authority to fully implement WHTI as soon as feasible, given the security
imperative driving the initiative. DHS stated that it has drafted specific
plans that are ready to be implemented when the final rule for land and
sea document requirements has been published. DHS noted that it has issued
a request for proposal (RFP) for the testing and deployment of RFID and
license-plate-reader technology, which according to DHS is specific in
terms of requirements, including requirements that the contractor develop
final testing protocols and schedules following contract award. DHS
further stated that it has developed a comprehensive plan for training
officers to use the new software and a training strategy for the new
document requirements and related changes in policies and procedures. In
addition, DHS noted that it has prepared a comprehensive RFP to award a
public affairs contract that discusses WHTI communication and outreach
goals, and DHS anticipates future advertising and outreach efforts as
funds become available. Finally, DHS noted that the WHTI program office
plans to rely on its operational experience to develop and issue guidance
to support CBP officers when DHS ends the practice of oral declaration.
We acknowledge that DHS has taken a number of actions to prepare for
testing and deploying technologies and managing the implementation of
other WHTI activities. Where appropriate, we revised our draft report to
more fully recognize the actions that DHS is planning to take when the
rule for WHTI document requirements at land and sea ports of entry is
finalized. Nevertheless, we continue to believe that DHS faces challenges
deploying technology, and staffing and training officers to use it.
Although DHS has issued the RFP for the testing and deployment of RFID and
license plate reader technology, the funding for and timing of the
contract award are uncertain. Because the project schedule is to be
determined after the contract is awarded, neither we nor DHS can predict
with any precision when to expect the highest volume ports to receive the
new technologies associated with WHTI. It will be particularly challenging
for DHS to deploy these technologies to 13 of the highest volume ports
during fiscal year 2008, as planned for in its fiscal year 2008 budget
request. CBP officials told us they expect to complete installation of the
new hardware at the two test ports sometime in April 2008. The technology
is then to be tested and modified, as appropriate, for a minimum of 45
days. Even if DHS encounters no serious setbacks before or during the
deployment and operational testing, it would not be ready to begin
deployment to the remaining 11 ports slated to receive the technology in
fiscal year 2008 before June 2008. Any slippage in the deployment schedule
would also affect other DHS initiatives, including those related to
officer training at the ports of entry.
With regard to public outreach efforts, while the RFP contains some of the
general concepts to be covered by the contractor's strategic
communications plan, it leaves it to the contractor to define the specific
goals and objectives and establish the implementation schedule for the
public relations campaign. Therefore, a specific plan for public outreach
will not be completed and implemented until a contract is awarded, the
contractor prepares the communications plan called for in the RFP, and DHS
approves the contractor's plan.
-- -- -- -- -- --
As arranged with your offices, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issue date. At that time, we will send copies of this report to
the Secretaries of Homeland Security and State and interested
congressional committees and subcommittees. We will also make copies
available to others on request. In addition, this report will be available
at no charge on GAO's Web site at http://www.gao.gov.
If you or your staff have any questions about this report or wish to
discuss the matter further, please contact me at (202) 512-8777 or
[email protected]. Contact points for our Offices of Congressional Relations
and Public Affairs may be found on the last page of this report. Other key
contributors to this report were John Mortin, Assistant Director; Chuck
Bausell; Frances Cook; Michelle Cooper; Karen Febey; Danielle Fox; Kathryn
Godfrey; Mary Catherine Hult; Richard Hung; and Amanda Miller.
Richard M. Stana
Director, Homeland Security and Justice Issues
Appendix I: General Overview of the Federal Rule-Making Process
This appendix provides an overview of the steps in the rule-making process
for a significant regulatory action under Executive Order 12866 and the
potential time involved for some of the steps.
Step 1: Agency (or agencies, if a joint rule) completes development of the
notice of proposed rule making (NPRM), which includes the proposed rule
and supplemental information.^1
Step 2: Agency submits the draft NPRM and supporting materials, including
any required cost-benefit analysis, to the Office of Management and Budget
(OMB) for review.
Step 3: OMB reviews the draft NPRM and supporting materials and
coordinates review of the proposed rule by any other agencies that may
have an interest in it.
Step 4: OMB notifies the agency in writing of the results of its review,
including any provisions requiring further consideration by the agency,
within 90 calendar days after the date of submission to OMB.^2
Step 5: OMB resolves disagreements or conflicts, if any, between or among
agency heads or between OMB and any agency; if it cannot do so, such
disagreements or conflicts are resolved by the President or by the Vice
President acting at the request of the President.
Step 6: Once OMB notifies the agency that it has completed its review
without any requests for further consideration, the agency reviews the
NPRM and publishes it for public comment in the Federal Register.
Step 7: Agency is to give the public a meaningful opportunity to comment
on the proposed rule, which generally means a comment period of not less
than 60 days.
Step 8: Once the comment period has closed, the agency reviews the
comments received, makes appropriate revisions to the proposed rule, and
prepares a notice of the final rule, including supplemental information
with responses to comments received.^3
^1An agency may also begin this process with an advance notice of proposed
rule making that seeks comments and suggestions from the public on the
potential content of a forthcoming NPRM, but this step is not required by
law or executive order in most cases.
^2Executive Order 12866 provides that, for rules governed by a statutory
deadline, the agency shall, to the extent practicable, schedule rule
making proceedings so as to permit sufficient time for OMB review. It also
provides that when an agency is obligated by law to act more quickly than
normal review procedures allow, the agency shall comply with the
requirements to submit the proposed rule and required supporting materials
to OMB, "to the extent practicable."
Step 9: Agency submits draft notice and final rule, including updated
supporting materials or cost-benefit analysis, to OMB for review.
Step 10: OMB reviews the draft notice, final rule, and supporting
materials; coordinates review by any other agencies that may have an
interest in the rule; and notifies the agency of the results within 90
calendar days after the date of submission to OMB.^4
Step 11: Once OMB notifies the agency that it has completed its review
without any requests for further consideration, the agency reviews the
rule one more time and generally publishes the final rule and supplemental
information in the Federal Register at least 60 days before the new rule
takes effect.
^3If the final rule is materially different from the proposed rule, possibly
because of new issues raised or other important legal or substantive
developments during the comment period, an agency may decide to publish it
as a proposed rule instead with a second comment period. This approach
helps the agency provide sufficient notice and opportunity for public
comment on how the rule addresses the new issues or developments, but it
delays implementation of the final rule.
^4This time period is reduced to 45 days if OMB has previously reviewed the
rule and supporting information and there has been no material change in
the facts and circumstances upon which the rule is based.
Appendix II: Primary Documents Proposed Under WHTI for Land and Sea and
Circumstances of Use
Population When and where Length of Radio frequency Machine
allowed to document can be validity identification readable
Document use document used zone
Passport All At any U.S. Varies a x
travelers land/sea
(with visa crossing
if required)
Passport U.S. At any U.S. 10 years x x
card citizens land/ sea
crossing
arriving from
Canada, Mexico,
Bermuda, and the
Caribbean.
Available spring
2008.
NEXUS U.S. and At any U.S. land 5 years x x
Canadian and sea
citizens crossings when
approved to card holder is
receive the not bringing
document commercial goods
into the country
SENTRI U.S. At any U.S. land 5 years x x
citizens and sea
approved to crossings when
receive the card holder is
document not bringing
commercial goods
into the country
FAST Approved At any U.S. land 5 years x x
U.S. and crossings when
Canadian transporting
commercial commercial goods
transport
drivers
Merchant U.S. citizen At any U.S. Document
Mariner merchant land/sea is being
Document mariners crossing when on phased
official mariner out over
business the next
5 years
Military U.S. At any U.S. Varies
I.D. citizens and land/sea
aliens who crossing, but
are members only when
of U.S. entering on
armed forces official
or NATO military orders
Source: GAO Analysis of DHS and State data.
^aThe passport contains radio frequency identification technology, but is
not compatible with the technology DHS is installing to read documents in
vehicle lanes.
Appendix III: Comments from the Department of Homeland Security
(440623)
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