6 U.S.C. § 223

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 223 - Border security metrics

(a) Definitions

In this section:

(1) Appropriate congressional committees

The term "appropriate congressional committees" means-

(A) the Committee on Homeland Security and Governmental Affairs of the Senate; and

(B) the Committee on Homeland Security of the House of Representatives.

(2) Consequence Delivery System

The term "Consequence Delivery System" means the series of consequences applied by U.S. Border Patrol in collaboration with other Federal agencies to persons unlawfully entering the United States, in order to prevent unlawful border crossing recidivism.

(3) Got away

The term "got away" means an unlawful border crosser who-

(A) is directly or indirectly observed making an unlawful entry into the United States;

(B) is not apprehended; and

(C) is not a turn back.

(4) Known maritime migrant flow

The term "known maritime migrant flow" means the sum of the number of undocumented migrants-

(A) interdicted in the waters over which the United States has jurisdiction;

(B) identified at sea either directly or indirectly, but not interdicted;

(C) if not described in subparagraph (A) or (B), who were otherwise reported, with a significant degree of certainty, as having entered, or attempted to enter, the United States through the maritime border.

(5) Major violator

The term "major violator" means a person or entity that has engaged in serious criminal activities at any land, air, or sea port of entry, including the following:

(A) Possession of illicit drugs.

(B) Smuggling of prohibited products.

(C) Human smuggling.

(D) Possession of illegal weapons.

(E) Use of fraudulent documents.

(F) Any other offense that is serious enough to result in an arrest.

(6) Secretary

The term "the Secretary" means the Secretary of Homeland Security.

(7) Situational awareness

The term "situational awareness" means knowledge and understanding of current unlawful cross-border activity, including the following:

(A) Threats and trends concerning illicit trafficking and unlawful crossings.

(B) The ability to forecast future shifts in such threats and trends.

(C) The ability to evaluate such threats and trends at a level sufficient to create actionable plans.

(D) The operational capability to conduct persistent and integrated surveillance of the international borders of the United States.

(8) Transit zone

The term "transit zone" means the sea corridors of the western Atlantic Ocean, the Gulf of Mexico, the Caribbean Sea, and the eastern Pacific Ocean through which undocumented migrants and illicit drugs transit, either directly or indirectly, to the United States.

(9) Turn back

The term "turn back" means an unlawful border crosser who, after making an unlawful entry into the United States, responds to United States enforcement efforts by returning promptly to the country from which such crosser entered.

(10) Unlawful border crossing effectiveness rate

The term "unlawful border crossing effectiveness rate" means the percentage that results from dividing the number of apprehensions and turn backs by the sum of the number of apprehensions, estimated undetected unlawful entries, turn backs, and got aways.

(11) Unlawful entry

The term "unlawful entry" means an unlawful border crosser who enters the United States and is not apprehended by a border security component of the Department of Homeland Security.

(b) Metrics for securing the border between ports of entry

(1) In general

Not later than 180 days after December 23, 2016, the Secretary shall develop metrics, informed by situational awareness, to measure the effectiveness of security between ports of entry. The Secretary shall annually implement the metrics developed under this subsection, which shall include the following:

(A) Estimates, using alternative methodologies where appropriate, including recidivism data, survey data, known-flow data, and technologically-measured data, of the following:

(i) The rate of apprehension of attempted unlawful border crossers.

(ii) The number of detected unlawful entries.

(iii) The number of estimated undetected unlawful entries.

(iv) Turn backs.

(v) Got aways.

(B) A measurement of situational awareness achieved in each U.S. Border Patrol sector.

(C) An unlawful border crossing effectiveness rate in each U.S. Border Patrol sector.

(D) A probability of detection rate, which compares the estimated total unlawful border crossing attempts not detected by U.S. Border Patrol to the unlawful border crossing effectiveness rate under subparagraph (C), as informed by subparagraph (A).

(E) The number of apprehensions in each U.S. Border Patrol sector.

(F) The number of apprehensions of unaccompanied alien children, and the nationality of such children, in each U.S. Border Patrol sector.

(G) The number of apprehensions of family units, and the nationality of such family units, in each U.S. Border Patrol sector.

(H) An illicit drugs seizure rate for drugs seized by U.S. Border Patrol between ports of entry, which compares the ratio of the amount and type of illicit drugs seized between ports of entry in any fiscal year to the average of the amount and type of illicit drugs seized between ports of entry in the immediately preceding five fiscal years.

(I) Estimates of the impact of the Consequence Delivery System on the rate of recidivism of unlawful border crossers over multiple fiscal years.

(J) An examination of each consequence under the Consequence Delivery System referred to in subparagraph (I), including the following:

(i) Voluntary return.

(ii) Warrant of arrest or notice to appear.

(iii) Expedited removal.

(iv) Reinstatement of removal.

(v) Alien transfer exit program.

(vi) Criminal consequence program.

(vii) Standard prosecution.

(viii) Operation Against Smugglers Initiative on Safety and Security.

(2) Metrics consultation

To ensure that authoritative data sources are utilized in the development of the metrics described in paragraph (1), the Secretary shall-

(A) consult with the heads of the appropriate components of the Department of Homeland Security; and

(B) where appropriate, with the heads of other agencies, including the Office of Refugee Resettlement of the Department of Health and Human Services and the Executive Office for Immigration Review of the Department of Justice.

(3) Manner of collection

The data collected to inform the metrics developed in accordance with paragraph (1) shall be collected and reported in a consistent and standardized manner across all U.S. Border Patrol sectors, informed by situational awareness.

(c) Metrics for securing the border at ports of entry

(1) In general

Not later than 180 days after December 23, 2016, the Secretary shall develop metrics, informed by situational awareness, to measure the effectiveness of security at ports of entry. The Secretary shall annually implement the metrics developed under this subsection, which shall include the following:

(A) Estimates, using alternative methodologies where appropriate, including recidivism data, survey data, and randomized secondary screening data, of the following:

(i) Total inadmissible travelers who attempt to, or successfully, enter the United States at a port of entry.

(ii) The rate of refusals and interdictions for travelers who attempt to, or successfully, enter the United States at a port of entry.

(iii) The number of unlawful entries at a port of entry.

(B) The amount and type of illicit drugs seized by the Office of Field Operations of U.S. Customs and Border Protection at ports of entry during the previous fiscal year.

(C) An illicit drugs seizure rate for drugs seized by the Office of Field Operations, which compares the ratio of the amount and type of illicit drugs seized by the Office of Field Operations in any fiscal year to the average of the amount and type of illicit drugs seized by the Office of Field Operations in the immediately preceding five fiscal years.

(D) The number of infractions related to travelers and cargo committed by major violators who are interdicted by the Office of Field Operations at ports of entry, and the estimated number of such infractions committed by major violators who are not so interdicted.

(E) In consultation with the heads of the Office of National Drug Control Policy and the United States Southern Command, a cocaine seizure effectiveness rate, which is the percentage resulting from dividing the amount of cocaine seized by the Office of Field Operations by the total estimated cocaine flow rate at ports of entry along the United States land border with Mexico and Canada.

(F) A measurement of how border security operations affect crossing times, including the following:

(i) A wait time ratio that compares the average wait times to total commercial and private vehicular traffic volumes at each land port of entry.

(ii) An infrastructure capacity utilization rate that measures traffic volume against the physical and staffing capacity at each land port of entry.

(iii) A secondary examination rate that measures the frequency of secondary examinations at each land port of entry.

(iv) An enforcement rate that measures the effectiveness of such secondary examinations at detecting major violators.

(G) A seaport scanning rate that includes the following:

(i) The number of all cargo containers that are considered potentially "high-risk", as determined by the Executive Assistant Commissioner of the Office of Field Operations.

(ii) A comparison of the number of potentially high-risk cargo containers scanned by the Office of Field Operations at each sea port of entry during a fiscal year to the total number of high-risk cargo containers entering the United States at each such sea port of entry during the previous fiscal year.

(iii) The number of potentially high-risk cargo containers scanned upon arrival at a United States sea port of entry.

(iv) The number of potentially high-risk cargo containers scanned before arrival at a United States sea port of entry.

(2) Metrics consultation

To ensure that authoritative data sources are utilized in the development of the metrics described in paragraph (1), the Secretary shall-

(A) consult with the heads of the appropriate components of the Department of Homeland Security; and

(B) where appropriate, work with heads of other appropriate agencies, including the Office of Refugee Resettlement of the Department of Health and Human Services and the Executive Office for Immigration Review of the Department of Justice.

(3) Manner of collection

The data collected to inform the metrics developed in accordance with paragraph (1) shall be collected and reported in a consistent and standardized manner across all United States ports of entry, informed by situational awareness.

(d) Metrics for securing the maritime border

(1) In general

Not later than 180 days after December 23, 2016, the Secretary shall develop metrics, informed by situational awareness, to measure the effectiveness of security in the maritime environment. The Secretary shall annually implement the metrics developed under this subsection, which shall include the following:

(A) Situational awareness achieved in the maritime environment.

(B) A known maritime migrant flow rate.

(C) An illicit drugs removal rate for drugs removed inside and outside of a transit zone, which compares the amount and type of illicit drugs removed, including drugs abandoned at sea, by the maritime security components of the Department of Homeland Security in any fiscal year to the average of the amount and type of illicit drugs removed by such maritime components for the immediately preceding five fiscal years.

(D) In consultation with the heads of the Office of National Drug Control Policy and the United States Southern Command, a cocaine removal effectiveness rate for cocaine removed inside a transit zone and outside a transit zone, which compares the amount of cocaine removed by the maritime security components of the Department of Homeland Security by the total documented cocaine flow rate, as contained in Federal drug databases.

(E) A response rate, which compares the ability of the maritime security components of the Department of Homeland Security to respond to and resolve known maritime threats, whether inside or outside a transit zone, by placing assets on-scene, to the total number of events with respect to which the Department has known threat information.

(F) An intergovernmental response rate, which compares the ability of the maritime security components of the Department of Homeland Security or other United States Government entities to respond to and resolve actionable maritime threats, whether inside or outside a transit zone, with the number of such threats detected.

(2) Metrics consultation

To ensure that authoritative data sources are utilized in the development of the metrics described in paragraph (1), the Secretary shall-

(A) consult with the heads of the appropriate components of the Department of Homeland Security; and

(B) where appropriate, work with the heads of other agencies, including the Drug Enforcement Agency, the Department of Defense, and the Department of Justice.

(3) Manner of collection

The data used by the Secretary shall be collected and reported in a consistent and standardized manner by the maritime security components of the Department of Homeland Security, informed by situational awareness.

(e) Air and Marine security metrics in the land domain

(1) In general

Not later than 180 days after December 23, 2016, the Secretary shall develop metrics, informed by situational awareness, to measure the effectiveness of the aviation assets and operations of Air and Marine Operations of U.S. Customs and Border Protection. The Secretary shall annually implement the metrics developed under this subsection, which shall include the following:

(A) A flight hour effectiveness rate, which compares Air and Marine Operations flight hours requirements to the number of flight hours flown by Air and Marine Operations.

(B) A funded flight hour effectiveness rate, which compares the number of funded flight hours appropriated to Air and Marine Operations to the number of actual flight hours flown by Air and Marine Operations.

(C) A readiness rate, which compares the number of aviation missions flown by Air and Marine Operations to the number of aviation missions cancelled by Air and Marine Operations due to maintenance, operations, or other causes.

(D) The number of missions cancelled by Air and Marine Operations due to weather compared to the total planned missions.

(E) The number of individuals detected by Air and Marine Operations through the use of unmanned aerial systems and manned aircraft.

(F) The number of apprehensions assisted by Air and Marine Operations through the use of unmanned aerial systems and manned aircraft.

(G) The number and quantity of illicit drug seizures assisted by Air and Marine Operations through the use of unmanned aerial systems and manned aircraft.

(H) The number of times that actionable intelligence related to border security was obtained through the use of unmanned aerial systems and manned aircraft.

(2) Metrics consultation

To ensure that authoritative data sources are utilized in the development of the metrics described in paragraph (1), the Secretary shall-

(A) consult with the heads of the appropriate components of the Department of Homeland Security; and

(B) as appropriate, work with the heads of other departments and agencies, including the Department of Justice.

(3) Manner of collection

The data collected to inform the metrics developed in accordance with paragraph (1) shall be collected and reported in a consistent and standardized manner by Air and Marine Operations, informed by situational awareness.

(f) Data transparency

The Secretary shall-

(1) in accordance with applicable privacy laws, make data related to apprehensions, inadmissible aliens, drug seizures, and other enforcement actions available to the public, law enforcement communities, and academic research communities; and

(2) provide the Office of Immigration Statistics of the Department of Homeland Security with unfettered access to the data referred to in paragraph (1).

(g) Evaluation by the Government Accountability Office and the Secretary

(1) Metrics report

(A) Mandatory disclosures

The Secretary shall submit to the appropriate congressional committees and the Comptroller General of the United States an annual report containing the metrics required under this section and the data and methodology used to develop such metrics.

(B) Permissible disclosures

The Secretary, for the purpose of validation and verification, may submit the annual report described in subparagraph (A) to-

(i) the Center for Borders, Trade, and Immigration Research of the Centers of Excellence network of the Department of Homeland Security;

(ii) the head of a national laboratory within the Department of Homeland Security laboratory network with prior expertise in border security; and

(iii) a Federally Funded Research and Development Center.

(2) GAO report

Not later than 270 days after receiving the first report under paragraph (1)(A) and biennially thereafter for the following ten years with respect to every other such report, the Comptroller General of the United States shall submit to the appropriate congressional committees a report that-

(A) analyzes the suitability and statistical validity of the data and methodology contained in each such report; and

(B) includes recommendations on-

(i) the feasibility of other suitable metrics that may be used to measure the effectiveness of border security; and

(ii) improvements that need to be made to the metrics being used to measure the effectiveness of border security.

(3) State of the Border report

Not later than 60 days after the end of each fiscal year through fiscal year 2026, the Secretary shall submit to the appropriate congressional committees a "State of the Border" report that-

(A) provides trends for each metric under this section for the last ten fiscal years, to the greatest extent possible;

(B) provides selected analysis into related aspects of illegal flow rates, including undocumented migrant flows and stock estimation techniques;

(C) provides selected analysis into related aspects of legal flow rates; and

(D) includes any other information that the Secretary determines appropriate.

(4) Metrics update

(A) In general

After submitting the tenth report to the Comptroller General under paragraph (1), the Secretary may reevaluate and update any of the metrics developed in accordance with this section to ensure that such metrics are suitable to measure the effectiveness of border security.

(B) Congressional notification

Not later than 30 days before updating the metrics pursuant to subparagraph (A), the Secretary shall notify the appropriate congressional committees of such updates.

6 U.S.C. § 223

Pub. L. 114-328, div. A, title X, §10921092,, 130 Stat. 2429.

EDITORIAL NOTES

CODIFICATIONSection was enacted as part of the National Defense Authorization Act for Fiscal Year 2017, and not as part of the Homeland Security Act of 2002 which comprises this chapter.

Department

The term "Department" means the Department of Homeland Security.

Secretary

The term "Secretary" means the Secretary of Homeland Security.

State

The term "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possession of the United States.

assets

The term "assets" includes contracts, facilities, property, records, unobligated or unexpended balances of appropriations, and other funds or resources (other than personnel).

Agency

the term "Agency" means the Federal Emergency Management Agency;