Order Code RL33659
CRS Report for Congress
Received through the CRS Web
Border Security: Barriers Along
the U.S. International Border
Updated October 30, 2006
Blas Nuñez-Neto
Analyst in Domestic Security
Domestic Social Policy Division
Stephen Viña
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Border Security: Barriers Along the
U.S. International Border
Summary
Congress has been considering expanding the barriers currently deployed along
the U.S. international land border. Currently, the United States Border Patrol
(USBP) deploys fencing, which aims to impede the illegal entry of individuals, and
vehicle barriers, which aim to impede the illegal entry of vehicles (but not
individuals) along the border. The USBP first began erecting barriers in 1990 to
deter illegal entries and drug smuggling in its San Diego sector. The ensuing 14
mile-long San Diego “primary fence” formed part of the USBP’s “Prevention
Through Deterrence” strategy, which called for reducing unauthorized migration by
placing agents and resources directly on the border along population centers in order
to deter would-be migrants from entering the country. In 1996, Congress passed the
Illegal Immigration Reform and Immigrant Responsibility Act which, among other
things, explicitly gave the Attorney General (now the Secretary of the Department of
Homeland Security) broad authority to construct barriers along the border and
authorized the construction of a secondary layer of fencing to buttress the completed
14 mile primary fence. Construction of the secondary fence stalled due to
environmental concerns raised by the California Coastal Commission. In 2005,
Congress passed the REAL ID Act that authorized the Secretary of the Department
of Homeland Security (DHS) to waive all legal requirements in order to expedite the
construction of border barriers. DHS has since announced it will use this waiver
authority to complete the San Diego fence and is in the process of acquiring the
necessary land. The Secure Fence Act of 2006 directs DHS to construct 850 miles
of additional border fencing.
While the San Diego fence, combined with an increase in agents and other
resources in the USBP’s San Diego sector, has proven effective in reducing the
number of apprehensions made in that sector, there is considerable evidence that the
flow of illegal immigration has adapted to this enforcement posture and has shifted
to the more remote areas of the Arizona desert. Nationally, the USBP made 1.2
million apprehensions in 1992 and again in 2004, suggesting that the increased
enforcement in San Diego sector has had little impact on overall apprehensions.
In addition to border fencing, the USBP deploys both permanent and temporary
vehicle barriers to the border. Temporary vehicle barriers are typically chained
together and can be moved to different locations at the USBP’s discretion.
Permanent vehicle barriers are embedded in the ground and are meant to remain in
one location. The USBP is currently erecting a 150 mile stretch of vehicle barriers,
in conjunction with the National Park Service, near Yuma, Arizona.
A number of policy issues concerning border barriers generally and fencing
specifically may be of interest to Congress, including, but not limited, to their
effectiveness, costs versus benefits, location, design, environmental impact, potential
diplomatic ramifications, and the costs of acquiring the land needed for construction.

This report will be updated periodically as needed.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The San Diego Border Primary Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Operation Gatekeeper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sandia National Laboratory Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Congressional Border Barrier Legislation . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 102 of IIRIRA — Improvement of Barriers at the Border . . . . . . . . 5
The San Diego Sandia Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The California Coastal Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The REAL ID Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Current Status of the San Diego Triple Fence . . . . . . . . . . . . . . . . . . . . . . . . 9
The San Diego Fence and USBP Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . . 9
Border Barrier Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Steps Prior to Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Environmental Impact Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Border Fence Construction Process and Funding . . . . . . . . . . . . . . . . . . . 16
Types of Fences and Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Landing Mat Fencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sandia Secondary Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Other Border Barriers: Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Permanent Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Temporary Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Issues For Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Fence Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Fence Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Diplomatic Ramifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Environmental Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Legal Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Unintended Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Appendix I: Examples of USBP Border Fencing . . . . . . . . . . . . . . . . . . . . . . . . 35
Appendix II: The San Diego Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Appendix III: Permanent Vehicle Barrier Schematic . . . . . . . . . . . . . . . . . . . . . . 37

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Appendix IV: Permanent Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Appendix V: Data From Figure 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Appendix VI. Legal Requirements Waived by DHS for the Construction
of the San Diego Border Fence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
List of Figures
Figure 1: Imperial Beach Station Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . 10
Figure 2: Chula Vista Station Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Figure 3: Apprehensions at San Diego Sector Stations, Excluding Imperial
Beach and Chula Vista . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Figure 4: Apprehensions at San Diego Sector Stations and Tucson Sector . . . . . 13
List of Tables
Table 1. Border Patrol Tactical Infrastructure Appropriations . . . . . . . . . . . . . . 17
Table 2. DOD Funding for the Southwest Border Fence . . . . . . . . . . . . . . . . . . 18

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Border Security: Barriers Along the U.S.
International Border
Background
Within the Department of Homeland Security’s (DHS) Customs and Border
Protection (CBP), the U.S. Border Patrol (USBP) is charged with securing our
nation’s land and maritime borders between official ports of entry (POE) to deter and
interdict terrorists, weapons of mass destruction, and aliens attempting to enter the
country unlawfully. In order to discharge its duties, the USBP deploys personnel,
technology, and tactical infrastructure such as vehicle barriers and fencing. Fencing
is erected on the border to impede the illegal entry of unauthorized aliens, while
vehicle barriers are designed to impede the entry of vehicles but do not impede the
entry of individuals. This report will analyze the barriers that are currently being
constructed and maintained along the border by the USBP, including historical and
future cost estimates and the policy issues involved. Because the current debate has
largely focused on the deployment of fencing to the border, this report will focus on
the policy issues surrounding the construction of border fencing. However,
information concerning the kinds of vehicle barriers being deployed at the border will
be provided where available.
Using the broad powers granted to the Attorney General (AG) to control and
guard the U.S. border,1 the USBP began erecting a barrier known as the “primary
fence” directly on the border in 1990 to deter illegal entries and drug smuggling in
its San Diego sector.2 The San Diego fence formed part of the USBP’s “Prevention
Through Deterrence” strategy,3 which called for reducing unauthorized migration by
placing agents and resources directly on the border along population centers in order
to deter would-be migrants from entering the country. The San Diego primary fence
was completed in 1993, covering the first 14 miles of the border from the Pacific
Ocean. The fence was constructed of 10-foot-high welded steel army surplus landing
1 8 U.S.C. §1103 (a)(5). Although the law still cites to the Attorney General, the authorities
granted by this section now appear to rest with the Secretary of DHS. See The Homeland
Security Act of 2002, P.L. 104-208, §§102(a), 441, 1512(d) and 1517 (references to the
Attorney General or Commissioner in statute and regulations are deemed to refer to the
Secretary of DHS).
2 For more information on the San Diego border fence, please refer to CRS Report RS22026,
Border Security: The San Diego Fence, by Blas Nuñez-Neto and Stephen Viña.
3 For an expanded discussion of the USBP, please refer to CRS Report RL32562, Border
Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.

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mats4 with the assistance of the Corps of Engineers and the California National
Guard. In addition to the 14 miles of primary fencing erected in its San Diego sector,
the USBP maintains stretches of primary fencing in several other sectors along the
southwest border, including Yuma, Tucson, El Centro, and El Paso.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), which, among other things, explicitly gave the Attorney
General broad authority to construct barriers along the border and authorized the
Immigration and Naturalization Service (INS) to construct a secondary layer of
fencing to buttress the completed 14 mile primary fence.5 Construction of the
secondary fence stalled after 9.5 miles had been completed due to environmental
concerns raised by the California Coastal Commission (CCC). In 2005, Congress
passed the REAL ID Act, which, among other things, authorized the Secretary of the
Department of Homeland Security (DHS) to waive all legal requirements to expedite
the construction of border barriers.6 In 2006, Congress passed the Secure Fence Act,
which, among other things, directs DHS to construct five separate stretches of
fencing along the southern border totaling 850 miles.
In addition to border fencing, the USBP deploys both permanent and temporary
vehicle barriers at the border. Vehicle barriers are meant to stop the entry of
vehicles, but not people, into the United States. Temporary vehicle barriers are
typically chained together and can be moved to different locations at the USBP’s
discretion. Permanent vehicle barriers are embedded in the ground and are meant to
remain in one location. The USBP is currently erecting a 150 mile stretch of vehicle
barriers in conjunction with the National Park Service near Yuma, Arizona.
The San Diego Border Primary Fence
The USBP’s San Diego sector extends along the first 66 miles from the Pacific
Ocean of the international border with Mexico, and covers approximately 7,000
square miles of territory. Located north of Tijuana and Tecate, Mexican cities with
a combined population of more than two million people, the sector features no
natural barriers to entry by unauthorized migrants and smugglers.7 As a result of this
geographical reality and in response to the large numbers of unauthorized aliens
crossing the border in the area, in 1990 the USBP began erecting a physical barrier
to deter illegal entries and drug smuggling. The ensuing “primary” fence covered the
4 U.S. Government Accountability Office, Border Control — Revised Strategy Is Showing
Some Positive Results, GAO/GGD-95-30, Jan. 31, 1995. (Hereafter referred to as GAO
Report 95-30.)
5 See P.L. 104-208, Div. C. IIRIRA was passed as part of the Omnibus Consolidated
Appropriations Act of 1997.
6 P.L. 109-13.
7 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An
Investigation Into Allegations of Fraud and Misconduct, July 1998, available at
[http://www.usdoj.gov/oig/special/9807/gkp01.htm#P160_18689].

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first 14 miles of the border, starting from the Pacific Ocean, and was constructed of
10-foot-high welded steel.8
Operation Gatekeeper
The primary fence, by itself, did not have a discernible impact on the influx of
unauthorized aliens coming across the border in San Diego. As a result of this,
Operation Gatekeeper was officially announced in the San Diego sector on October
1, 1994. The chief elements of the operation were large increases in the overall
manpower of the sector, and the deployment of USBP personnel directly along the
border to deter illegal entry. The strategic plan called for three tiers of agent
deployment. The first tier of agents was deployed to fixed positions on the border.
The agents in this first tier were charged with preventing illegal entry, apprehending
those who attempted to enter, and generally observing the border. A second tier of
agents was deployed north of the border in the corridors that were heavily used by
illegal aliens. The second tier of agents had more freedom of movement than the first
tier and were charged with containing and apprehending those aliens who made it
past the first tier. The third tier of agents were typically assigned to man vehicle
checkpoints further inland to apprehend the traffic that eluded the first two tiers. As
the Department of Justice Inspector General report notes, “given Gatekeeper’s
deterrence emphasis, many agents were assigned to first-tier, fixed positions along
the border. These agents were instructed to remain in their assigned positions rather
than chase alien traffic passing through adjacent areas. Prior to Gatekeeper, such
stationary positions were relatively rare.”9
Operation Gatekeeper resulted in significant increases in the manpower and
other resources deployed to San Diego sector. Agents received additional night
vision goggles, portable radios, and four-wheel drive vehicles, and light towers and
seismic sensors were deployed.10 According to the former INS, between October
1994 and June of 1998, San Diego sector saw the following increases in resources:
! USBP agent manpower increased by 150%;
! Seismic sensors deployed increased by 171%;
! Vehicle fleet increased by 152%.
! Infrared night-vision goggles increased from 12 to 49;
! Permanent lighting increased from 1 mile to 6 miles, and 100
portable lighting platforms were deployed;
! Helicopter fleet increased from 6 to 10.11
8 GAO Report 95-30.
9 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An
Investigation Into Allegations of Fraud and Misconduct, July 1998, available at
[http://www.usdoj.gov/oig/special/9807/index.htm]. (Hereafter referred to as DOJ-OIG
Gatekeeper Report.)
10 DOJ-OIG Gatekeeper Report.
11 U.S. Department of Justice, Immigration and Naturalization Service, “Operation
Gatekeeper Fact Sheet,” July 14, 1998.

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As a result of the increase in resources and the new strategy that were the main
components of Operation Gatekeeper, the USBP estimated in 1998 that the entire 66
miles of border patrolled by the San Diego sector’s agents could be brought under
control in five years.12
Sandia National Laboratory Study
According to CBP, the primary fence, in combination with various USBP
enforcement initiatives along the San Diego border region (i.e., Operation
Gatekeeper), proved to be successful but fiscally and environmentally costly.13 For
example, as unauthorized aliens and smugglers breached the primary fence and
attempted to evade detection, USBP agents were often forced to pursue the suspects
through environmentally sensitive areas. It soon became apparent to immigration
officials and lawmakers that the USBP needed, among other things, a “rigid”
enforcement system that could integrate infrastructure (i.e., a multi-tiered fence and
roads), manpower, and new technologies to further control the border region.
The concept of a three-tiered fence system was first recommended by a 1993
Sandia Laboratory study commissioned by the former Immigration and
Naturalization Service (INS). According to the Sandia study, the use of multiple
barriers in urban areas would increase the USBP’s ability to discourage a significant
number of illegal border crossers, to detect intruders early and delay them as long as
possible, and to channel a reduced number of illegal border crossers to geographic
locations where the USBP was better prepared to deal with them.14 The Sandia study
further noted that segments of the border could not be controlled at the immediate
border due to the ruggedness of the terrain, and recommended the use of highway
checkpoints in those areas to contain aliens after they had entered the country
illegally.15 The study concluded that aliens attempting to enter the United States from
Mexico had shown remarkable resiliency in bypassing or destroying obstacles in their
path, including the existing primary fence, and postulated that “[a] three-fence barrier
system with vehicle patrol roads between the fences and lights will provide the
necessary discouragement.”16
12 DOJ-OIG Gatekeeper Report.
13 See California Coastal Commission, W 13a Staff Report and Recommendation on
Consistency Determination, CD-063-03, Oct. 2003, at 14-16 (stating that construction of the
primary fence significantly assisted the USBP’s efforts in deterring smuggling attempts via
drive-throughs using automobiles and motorcycles). (Hereafter referred to as CCC Staff
Report.)
14 GAO 95-30, p. 13.
15 GAO 95-30, p. 13.
16 Peter Andreas, “The Escalation of U.S. Immigration Control in the Post-NAFTA Era,”
Political Science Quarterly, vol. 113, no. 4, winter 1998-1999, p. 595.

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Original Congressional Border Barrier Legislation
As previously mentioned, the INS constructed the primary fencing in San Diego
using the broad authority granted to the AG in order to guard and control the U.S.
border by the Immigration and Nationality Act (INA).17 In 1996, Congress expressly
authorized the AG to construct barriers at the border for the first time in the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA).18
Section 102 of IIRIRA — Improvement of Barriers
at the Border
Section 102 of IIRIRA concerned the improvement and construction of barriers
at our international borders. Section 102(a) appeared to give the AG19 broad
authority to install additional physical barriers and roads “in the vicinity of the United
States border to deter illegal crossings in areas of high illegal entry into the United
States.” The phrase vicinity of the United States border is not defined in the
Immigration and Nationality Act (8 U.S.C. §1101 et seq.) or in immigration
regulations. The section also did not stipulate what specific characteristics would
designate an area as one of high illegal entry.
Section 102(b) mandated that the AG construct a barrier in the border area near
San Diego. Specifically, §102(b) directed the AG to construct a three-tiered barrier
along the 14 miles of the international land border of the U.S., starting at the Pacific
Ocean and extending eastward. Section 102(b) ensured that the AG will build a
barrier, pursuant to his broader authority in §102(a), near the San Diego area,
although there is some debate concerning whether IIRIRA required continuous triple
fencing and roads for the entire 14-mile corridor.20 Section 102(b) also provided
authority for the acquisition of necessary easements, required certain safety features
be incorporated into the design of the fence, and authorized a total appropriation not
to exceed $12 million to carry out the section.21
Section 102(c) waived the Endangered Species Act (ESA) of 1973 (16 U.S.C.
§§1531 et seq.) and the National Environmental Policy Act (NEPA) of 1969 (42
U.S.C. §§4321 et seq.), to the extent the AG determined necessary, in order to ensure
expeditious construction of the barriers authorized to be constructed under §102. The
waiver authority in this provision appeared to apply both to barriers that may be
constructed in the vicinity of the border and to the barrier that was to be constructed
17 8 U.S.C. §1103 (a)(5).
18 P.L. 104-208, §102.
19 Although the law still cites to the Attorney General, the authorities granted by this section
now appear to rest with the Secretary of DHS. See The Homeland Security Act of 2002,
P.L. 104-208, §§102(a), 441, 1512(d) and 1517 (references to the Attorney General or
Commissioner in statute and regulations are deemed to refer to the Secretary).
20 See CCC, Staff Report, at 7 nt. 2 and p. 23 nt. 4.
21 The actual costs associated with constructing the San Diego fence have been considerably
greater than anticipated by IIRIRA and will be discussed in more detail later in this report.

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near the San Diego area. The INS (and CBP after 2003) never exercized this original
waiver authority, instead choosing to comply with the NEPA and the ESA. The INS
published a Final Environmental Impact Study pursuant to NEPA and received a
non-jeopardy Biological Opinion from the U.S. Fish and Wildlife Service under the
ESA.22 This waiver authority was expanded in the 109th Congress by the REAL ID
Act, which will be discussed in greater detail subsequently, and DHS has
subsequently announced it will be implementing this expanded waiver authority.
Section 102(d) also provides the AG with various land acquisition authorities.
In 2002, Congress amended the U.S. Code to authorize the AG to use INS funds to
purchase land for enforcement fences and to construct the fences.23
The San Diego Sandia Fence
In 1996, construction began on the secondary fence that had been recommended
by the Sandia study with congressional approval. The new fence was to parallel the
fourteen miles of primary fence already constructed on land patrolled by the Imperial
Beach Station of the San Diego sector, and included permanent lighting as well as an
access road in between the two layers of fencing. Of the 14 miles of fencing
authorized to be constructed by IIRIRA, nine miles of the triple fence had been
completed by the end of FY2005. Two sections, including the final three mile stretch
of fence that leads to the Pacific Ocean, have not been finished.
The California Coastal Commission
In order to finish the fence, the USBP proposed to fill a deep canyon known as
“Smuggler’s Gulch” with over two million cubic yards of dirt. The triple-fence
would then be extended across the filled gulch. California’s Coastal Commission
(CCC), however, objected to and essentially halted the completion of the fence in
February 2004, because it determined that CBP had not demonstrated, among other
things, that the project was consistent “to the maximum extent practicable” with the
policies of the California Coastal Management Program — a state program approved
under the federal Coastal Zone Management Act (CZMA) (16 U.S.C. §§1451-
1464).24 The CZMA requires federal agency activity within or outside the coastal
zone that affects any land or water use or natural resource of the coastal zone to be
carried out in a manner that is consistent to the maximum extent practicable with the
22 Department of Homeland Security, Environmental Impact Statement for the Completion
of the 14-mile Border Infrastructure System, San Diego, California (July 2003) [hereinafter
EIS, San Diego Border Fence].
23 P.L.107-273, §201(a).
24 See CCC, Staff Report, at 5-7. After California’s Coastal Management Plan was approved
by the National Oceanic and Atmospheric Administration pursuant to the CZMA in 1977,
apparently all federal activities affecting coastal zone resources in California became subject
to the CCC’s regulatory purview.

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policies of an approved state management program.25 If a federal court finds a
federal activity to be inconsistent with an approved state program and the Secretary
of DHS (Secretary) determines that compliance is unlikely to be achieved through
mediation, the President may exempt from compliance the activity if the President
determines that the activity is in the “paramount interest of the United States.”26
According to the CCC, CBP did not believe that it could make further
environmental concessions and still comply with IIRIRA. The CCC held that
Congress did not specify a particular design in the IIRIRA, and that CBP failed to
present a convincing argument that the less environmentally damaging alternative
projects it rejected would have prevented compliance with the IIRIRA. Specifically,
the CCC was concerned with the potential for significant adverse effects on (1) the
Tijuana River National Estuarine Research and Reserve; (2) state and federally listed
threatened and endangered species; (3) lands set aside for protection within
California’s Multiple Species Conservation Program; and, (4) other aspects of the
environment. In response to the CCC’s findings, Congress expanded the waiver
authority in the REAL ID Act, described in more detail below, in order to allow DHS
to waive the CZMA, among other things.
The REAL ID Act
In the 109th Congress, H.R. 418, the REAL ID Act of 2005, contained language
requiring the Secretary of DHS to waive all laws necessary to ensure expeditious
construction of the security barriers. H.R. 418 was passed by the House as a
stand-alone piece of legislation, but was also attached as an amendment to
House-passed H.R. 1268, the emergency supplemental appropriations bill for
FY2005. During conference, language was revised in H.R. 1268 to “authorize,”
instead of “require,” the Secretary of DHS to waive all “legal requirements,” instead
of “all laws.” The conferees also added a new provision that would make such
waiver decisions effective upon publication in the Federal Register. Language was
also added granting federal district courts exclusive jurisdiction to review claims
alleging that the actions or decisions of the Secretary violate the U.S. Constitution,
and allowing district court rulings to be reviewed only by the U.S. Supreme Court.
H.R. 1268 was signed into law on May 11, 2005 (P.L. 109-13).27
The waiver authority provided in §102 of the REAL ID Act appears to be a
broad grant of authority because, in part, it authorizes the waiver of all legal
requirements determined necessary by the Secretary for the expeditious construction
of authorized barriers and only allows judicial review for constitutional claims.28
25 16 U.S.C. §1456(c).
26 16 U.S.C. §1456(c)(1)(B).
27 For more information on the REAL ID Act, please refer to CRS Report RL32754,
Immigration: Analysis of the Major Provisions of the REAL ID Act of 2005, by Michael
John Garcia, Margaret Mikyung Lee, and Todd Tatelman.
28 One of the most analogous provisions CRS located appears to be, at least on its face, 43
U.S.C. §1652(c), which authorizes the waiver of all procedural requirements in law related
(continued...)

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Furthermore, these claims can only be appealed to the Supreme Court (i.e., there is
no intermediate appellate review), whose review is discretionary. Moreover, because
§102 of the REAL ID Act amends only the waiver provision of §102 of IIRIRA, the
new waiver authority appears to apply to all the barriers that may be constructed
under IIRIRA — that is, both to barriers constructed in the vicinity of the border in
areas of high illegal entry and to the barrier that is to be constructed near the San
Diego area.
Many are concerned with the apparent breadth of the waiver provision and
limited judicial review. As passed into law, the REAL ID Act waiver provision
begins with the arguably ambiguous “notwithstanding any other law” phrase29 and
allows the waiver of all “legal requirements.” Although the term “legal requirement”
is not defined, it cannot grant the Secretary the authority to unilaterally waive a
person’s constitutional rights.30 The provision, however, has been construed by
Secretary Chertoff to permit him to waive laws in their entirety. Congress commonly
waives preexisting laws, but the new waiver provision used language and a
combination of terms not typically seen in law. Most waiver provisions have
qualifying language that (1) exempt an action from other requirements contained in
the act that authorizes the action, (2) specifically delineate the laws to be waived, or
(3) waive a grouping of similar laws. Also common are waiver provisions that
contain reporting requirements or restrictions which appear to limit their breadth.31
One analogous law appears to be 43 U.S.C. §1652(c), which authorizes the Secretary
of the Interior to waive all procedural requirements in law related to the construction
of the Trans-Alaska pipeline and limits judicial review to constitutional claims (see
below).

Although some argue that the waiver authority can extend to any law, including
those seemingly unrelated to building a fence (e.g., civil rights or child labor laws),
the provision is tempered by the requirement that the Secretary must determine the
28 (...continued)
to the construction of the Trans-Alaska pipeline and limits judicial review to constitutional
claims.
29 Some courts, for instance, have found the “notwithstanding” phrase not dispositive in
determining the preemptive effect of a statute. See, e.g., E.P. Paup v. Director, OWCP, 999
F.2d 1341, 1348 (9th Cir. 1993); Oregon Natural Resources Council v. Thomas, 92 F.3d 792,
796 (9th Cir. 1996). But see Puerto Rico v. M/V Emily S., 132 F.3d 818 (1st Cir. 1997);
Schneider v. United States, 27 F.3d 1327 (8th Cir. 1994).
30 “[T]he Constitution is filled with provisions that grant Congress or the States specific
power to legislate in certain areas,” Justice Black wrote for the Court, but “these granted
powers are always subject to the limitations that they may not be exercised in a way that
violates other specific provisions of the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29
(1968).
31 Some of these waiver provisions grant the President or the head of an Executive agency
the authority to waive a law[s] if deemed necessary in the national interest or in the interest
of national defense. See, e.g., 10 U.S.C. §1107(a); 22 U.S.C. §2375(d); 29 U.S.C. §793; 42
U.S.C. §6212(b); 42 U.S.C. §6393(a)(2); 50 U.S.C. §2426(e). Examples of waiver authority
with a congressional notification element include 15 U.S.C. §719f; 22 U.S.C. §2378; 22
U.S.C. §2371; and 41 U.S.C. §413.

---

CRS-9
law (subject to the waiver) is necessary “to ensure expeditious construction” of the
barriers. In other words, the Secretary may be confined to laws that, in effect, will
impede the construction of the fence — not those that only tangentially relate to or
do not necessarily interfere with construction. For example, because child labor laws
would not prevent the Secretary from expeditiously constructing the fence, it follows
that the Secretary does not have the authority to waive these protections. This
interpretation is buttressed by the legislative history where several Members called
for the waiver provision because of laws that were complicating and ultimately
preventing the completion of the fence.32 The decision to waive a law, nonetheless,
is solely in the Secretary’s discretion. Until such time that DHS waives an applicable
law, however, it must follow all legal requirements normally imposed on federal
agencies.
Current Status of the San Diego Triple Fence
The military has now begun upgrading and rebuilding the San Diego border
fence. The Senate-passed version of the FY2006 DHS Appropriations bill, H.R.
2360, includes $50 million for construction of the border fence in San Diego, and $50
million for border infrastructure, including fences and vehicle barriers, in Arizona.
On September 14, 2005, DHS announced it is applying its new waiver authority to
complete the San Diego fence.33 DHS is currently in the land acquisition phase of
the project, and construction had not started on the outstanding 4.5 miles of fencing
as of September 2006.34
The San Diego Fence and USBP Apprehensions
Apprehension statistics have long been used as a performance measure by the
USBP. However, the number of apprehensions may be a misleading statistic for
several reasons, including the data’s focus on events rather than people35 and the fact
that there are no reliable estimates for how many aliens successfully evade capture.
This makes it difficult to establish a firm correlation between the number of
apprehensions in a given sector and the number of people attempting to enter through
that sector. While caution should be taken when attempting to draw conclusions
about the efficacy of policy initiatives based solely on apprehensions statistics, they
remain the most reliable way to codify trends in illegal migration along the border.
32 151 Cong. Rec. H557 (daily ed. Feb. 10, 2005).
33 Department of Homeland Security, “Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102
of the REAL ID Act of 2005,” 70 Federal Register 55622-02, September 22, 2005.
34 Interview with CBP Congressional Affairs, September 13, 2006.
35 If the same person is apprehended multiple times attempting to enter the country in one
year, each apprehension will be counted separately by the USBP in generating their
apprehension statistics. This means that apprehension statistics may overstate the number
of aliens apprehended each year.

---

CRS-10
The San Diego fence spans two border patrol stations within the San Diego
sector: Imperial Beach station and Chula Vista station. As previously noted, the
primary fence was constructed in those two stations beginning in FY1990; the
secondary fence was constructed beginning in FY1996. Figure 1 shows the stark
decrease in apprehensions at the Imperial Beach station from fiscal year (FY) 1992
to FY2004. The majority of the decrease occurred in the four year period from
FY1995 through FY1998 and coincided with Operation Gatekeeper, which as
previously noted combined the construction of fencing along the border with an
increase in agents and other resources deployed directly along the border. For the
period from FY1998 to FY2004, apprehensions at the Imperial Beach station
averaged about 14,000 each year.
Figure 1: Imperial Beach Station Apprehensions
250,000
202,
20 17
1 3
200,000
186
18 ,
6 89
8 4
150,000
165,
16 28
2 7
120,
12 63
6 0
3
100,000
74,
74 979
7
50,000
27,
27 865
6
15,
15 832
3
15,
15 97
9 4
7
19,
19 815
1
15,
15 480
8
11,
11 405
0
10,
10 218
1
9,112
9,
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Source: CRS analysis of CBP data.
Figure 2 shows the apprehensions at the Chula Vista station over the same
period of time. The trend in apprehensions at Chula Vista is somewhat similar to
Imperial Beach, with overall apprehensions dropping significantly from FY1992 to
FY2002. Apprehensions increased slightly from FY2002 to FY2004, but remain far
below their early 1990s levels. Interestingly, the rate of decline in Chula Vista in the
mid-1990s lagged behind the rate of decline in Imperial Beach station during this
period. This suggests that as enforcement ramped up in Imperial Beach station,
unauthorized migration shifted westward to Chula Vista. From FY1992 to FY1998,
for example, apprehensions decreased by 92% in Imperial Beach, but only by 54%
in Chula Vista. From FY1998 through FY2001, apprehensions leveled off in
Imperial Beach, averaging around 16,000 a year, but continued to decline at Chula

---

CRS-11
Vista, from 72,648 in FY1998 to 3,080 in FY2002. Overall, the trend indicates the
following: as enforcement measures, in this case including fencing, were deployed
— first focusing on Imperial Beach, and later extending to Chula Vista — the flow
of unauthorized migration pushed eastward. The drop in apprehensions occurred first
in Imperial Beach, and then later pushed eastward to Chula Vista.
Figure 2: Chula Vista Station Apprehensions
160,000
156,
15 27
6,
3
27
158,
15 9
8, 52
5
141,
14 09
1,
6
09
140,000
120,000
111,
11 41
1,
3
41
100,000
107,
10 87
7,
2
87
72,
72 648
6
80,000
67,8
67 0
,8 4
60,000
40,000
27,0
27 85
,0
19,
19 45
4 3
20,000
9,92
9,
3
92
3,08
3,
0
4,545
080
4,54
9,62
9,
7
62
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Source: CRS analysis of CBP data.
Figure 3 shows the aggregate apprehensions made at the other San Diego sector
stations, excluding Imperial Beach and Chula Vista. Those stations are El Cajon,
Campo, San Clemente, Temecula, and Brown Field. Figure 3 shows that at the time
apprehensions were beginning to decline in Imperial Beach (starting in FY1995) and
Chula Vista (starting in FY1996), apprehensions at other San Diego sector stations
almost doubled. This suggests that as enforcement efforts increased in the two
westernmost stations, including the installation of fencing and the deployment of
additional agents, the flow of illegal migration pushed eastward to the other stations
in the San Diego sector. While apprehensions declined in the non-fenced stations of
the San Diego sector from FY1997 to FY2001, the rate of decline was not as steep
as the rate of decline at the stations where fencing was deployed. Overall, the decline
in apprehensions in the rest of the San Diego sector has lagged behind the decreases
in Imperial Beach and Chula Vista: from FY1992 to FY2004, apprehensions in the
other San Diego sector stations decreased by 42%, compared to decreases of 95% in
Imperial Beach and 94% in Chula Vista. In FY2003 and FY2004, apprehensions
increased slightly in the rest of San Diego sector, possibly in response to the

---

CRS-12
increasing USBP focus on the Tucson sector in Arizona.36 It seems, then, that the
installation of border fencing, in combination with an increase in agent manpower
and technological assets, has had a significant effect on the apprehensions made in
the San Diego sector. This in turn suggests that fewer unauthorized aliens are
attempting to cross the border in the San Diego sector as a result of the increased
enforcement measures, including fencing, manpower, and other resources, that were
deployed to that sector.
Figure 3: Apprehensions at San Diego Sector Stations, Excluding
Imperial Beach and Chula Vista
300,000
297,423
42
262,
26 505
250,000
210,
21 129
200,000
204,456
45
189,
1
321
160,781
150,000
155,386
38
140,640
113,
1
866
100,000
119,
119 293
2
96,7
96, 52
5
85,8
85, 15
1
87,1
87 95
9
50,000
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Source: CRS analysis of CBP data.
Figure 4 shows overall San Diego sector apprehensions, breaking out the
Imperial Beach and Chula Vista stations, and compares them to the apprehensions
made at the Tucson sector between FY1992 and FY2004. The data used to create
this graph can be seen presented in table form in Appendix V. Figure 4 shows that
in FY1992, Imperial Beach and Chula Vista accounted for 64% of all apprehensions
made in the San Diego sector; by FY2004 the two stations accounted for only 14%
of all apprehensions made in the sector. However, as apprehensions declined in
Imperial Beach and Chula Vista stations and San Diego sector as a whole over the
late 1990s and early 2000s, apprehensions in the Tucson sector in Arizona increased
significantly over this period. Over the twelve year period between 1992 and 2004,
overall apprehensions in the San Diego sector declined by 76%. However, as
36 For more information on overall apprehension trends, please refer to CRS Report
RL32562, Border Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.

---

CRS-13
apprehensions were decreasing in the San Diego sector, they were increasing in other
sectors further east. This increase was most notable within the Tucson sector in
Arizona, where apprehensions increased six-fold (591%) between FY1992 and
FY2004. As Figure 4 shows, overall apprehensions in the San Diego and Tucson
sectors combined have averaged roughly 620,000 yearly since FY1992, with the San
Diego sector accounting for the lion’s share during the early 1990s and the Tucson
sector accounting for the majority in the early 2000s. This provides further indication
that the construction of the fence, combined with the increases in manpower in the
San Diego sector, changed the patterns of migration for unauthorized aliens
attempting to enter the country illegally from Mexico.
Figure 4: Apprehensions at San Diego Sector Stations and Tucson
Sector
800,000
700,000
600,000
500,000
400,000
300,000
200,000
100,000
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Tucson
Imperial Beach Station
Chula Vista Station
Other San Diego Sector Stations
Source: CRS analysis of CBP data.
As Figures 1-4 show, the increased deployment of agents, infrastructure,
technology, and other resources within the San Diego sector has resulted in a
significant decline in the number of apprehensions made in that sector. Nationally,
apprehensions made by the USBP grew steadily through the late 1990s, only to
decline in the early 2000s. However, in 1992 the USBP apprehended 1.2 million
unauthorized aliens; in 2004, the USBP also apprehended 1.2 million unauthorized

---

CRS-14
aliens.37 While the increased enforcement in the San Diego sector has resulted in a
shift in migration patterns for unauthorized aliens, it does not appear to have
decreased the overall number of apprehensions made each year by USBP agents. As
previously noted, apprehensions statistics can be somewhat misleading, but they
nevertheless remain the best way to codify trends in unauthorized migration along the
border. However, it is impossible to ascertain solely by looking at apprehensions
statistics how many unauthorized aliens are attempting to enter the country illegally,
because it is unclear how many individuals evade being captured by the USBP each
year.
Border Barrier Construction
The USBP has been constructing and maintaining barriers along the
international land border since 1991. These barriers have historically been limited
to selected urban areas as part of the USBP’s overall strategy of rerouting illegal
migration away from urban areas towards geographically isolated areas where their
agents have a tactical advantage over border crossers. Two main types of border
fencing have been constructed: primary fencing located directly on the border along
several urban areas; and Sandia fencing, also known as secondary or triple fencing,
in San Diego. Additionally, the USBP has begun installing permanent vehicle
barriers in various segments of the border. Vehicle barriers are designed to impede
the entry of vehicles while allowing individuals and animals to cross the border
freely. As such, they have a lower environmental footprint than border fencing.
Steps Prior to Construction
Several considerations come into play whenever the USBP contemplates
construction along the border. There are a number of steps that must be taken before
the construction process can begin. These steps include, but are not limited to,
determining what the environmental impact of the construction will be; acquiring the
land needed for the fence; acquiring the materials that will be used for the fence; and
securing the assistance of the Corps of Engineers and the National Guard for the
construction process. The role the Corps of Engineers plays in assisting the USBP
with th entire process of constructing border fencing, including acquiring materials,
will be discussed subsequently in the construction process section. This section will
cover the issues associated with environmental assessments and land acquisition.
Environmental Impact Assessments. Land along the southwest border
supports a number of animals and plants and provides habitat to many protected
species. The U.S. Fish and Wildlife Service, for example, reported that a total of 18
federally protected species have the potential to be found along certain sections of the
California border.38 In Arizona, at least 39 federally endangered, threatened, or
37 CRS analysis of CBP data.
38 EIS, San Diego Border Fence.

---

CRS-15
candidate species can be found living along its border.39 More than 85% of the lands
directly along the Arizona border are federal lands, much of it set aside to protect
wilderness and wildlife. For example, the Organ Pipe Cactus National Monument,
the Cabeza Prieta National Wildlife Refuge, and the Buenos Aires National Wildlife
Refuge can all be found adjacent to the border. The southwest border region is
considered a fragile environment, susceptible to harm from even the slightest changes
to the ecosystem.40
Many are concerned with the geographic footprint and subsequent
environmental impacts of both illegal immigration and USBP activities. Until the
early 1990s, the USBP’s enforcement activities along the border were nominal and
the environmental consequences of illegal crossings went largely unnoticed. As
illicit trafficking escalated, however, so did the USBP’s activities and enforcement
footprint, including the construction of fencing and other barriers. Although the San
Diego fence reportedly reduced the number of aliens attempting to drive across the
open border (and consequently the enforcement footprint to stop such activities), it
did little to block the flow of foot traffic.41 Illegal aliens often damage habitat by
cutting vegetation for shelter and fire, causing wildfires, increasing erosion through
repeated use of trails, and discarding trash.42 Environmentalists claim that the
USBP’s enforcement activities, including the pursuit of illegal aliens, use of off-road
vehicles and construction of roads and fences, compound the degradation.43 The
REAL ID Act will allow the Secretary of DHS to waive any legal requirements
needed to expedite the construction of border fencing. Until such time that DHS
waives an applicable law, however, it must follow all legal requirements normally
imposed on federal agencies, including, for example, NEPA documentary
requirements.
Land Acquisition. The construction of a fence along the border necessarily
requires the government to acquire some type of interest in the land. The San Diego
border fence, for example, is to extend approximately 150-feet north of the
international boundary.44 Current immigration law authorizes the Secretary of DHS
to contract for and buy any interest in land adjacent to or in the vicinity of the
international land border when the Secretary deems the land essential to control and
39 Defenders of Wildlife, On the Line — The Impacts of Immigration Policy on Wildlife and
Habitat in the Arizona Borderlands, 2006, p. 26. (Hereinafter, Defenders of Wildlife, On
the Line.)
40 Eilene Zimmerman, SFGate.com, Border protections imperil environment — Last
wilderness area south of San Diego could be damaged, Feb. 27, 2006, available at
[http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/27/MNG2GHFBFL1.DTL
&type=printable].
41 EIS, San Diego Border Fence, at 1-10.
42 Id. at 1-11.
43 See generally, Defenders of Wildlife, On the Line, p. 26.
44 Letter from Peter C. Sornsen, Acting Field Supervisor, U.S. Dept. of the Interior, to James
Caffrey, Acting Director, Facilities & Engineering Division, Immigration and Naturalization
Service, Re: Endangered Species Consultation for the Proposed 14-Mile Border
Infrastructure System (July 1, 2003) (on file with author).

---

CRS-16
guard the border against any violation of immigration law.45 It also authorizes the
Secretary to accept any interest in land along the border as a gift and to commence
condemnation proceedings if a reasonable purchase price can not be agreed upon.
With respect to the San Diego border fence, the law requires the Secretary to
promptly acquire such easements as necessary to implement the statute.46 If DHS
exercises its eminent domain powers, it must provide just compensation as required
by the Constitution. In the case of the San Diego fence, construction of the final 4.5
miles continues to be held up as DHS acquires the necessary land.
DHS is authorized to acquire new interests in lands under the INA. However,
the federal government may already own some land along the border pursuant to
presidential proclamations made long ago. In 1907, President Roosevelt reserved
from entry and set apart as a public reservation all public lands within 60-feet of the
international boundary between the United States and Mexico within the State of
California and the Territories of Arizona and New Mexico.47 Known as the
“Roosevelt Reservation,” this land withdrawal was found “necessary for the public
welfare ... as a protection against the smuggling of goods.” The proclamation
excepted from the reservation all lands, which, as of its date, were (1) embraced in
any legal entry; (2) covered by any lawful filing, selection or rights of way duly
recorded in the proper U.S. Land Office; (3) validly settled pursuant to law; or (4)
within any withdrawal or reservation for any use or purpose inconsistent with its
purposes. A similar reservation was made by President Taft in 1912, for all public
lands laying within 60-feet of the boundary line between the United States and
Canada.48 This proclamation states that the customs and immigration laws of the
United States could be better enforced and the public welfare thereby advanced by
the retention in the federal government of complete control of the use and occupation
of lands abutting the international boundary lines. The proclamation also provides
exceptions similar to those described in the Roosevelt Reservation.
Border Fence Construction Process and Funding
CBP currently constructs border fencing under a Memorandum of Agreement
(MOA) with the ECSO (Engineering and Construction Support Office) of the U.S.
Army Corps of Engineers (Corps). ECSO manages several components of the
construction process for CBP, including planning and acquisition of real estate;
45 8 U.S.C. §1103(b).
46 8 U.S.C. §1101 note (b)(2).
47 35 Stat. 2136. The reservation also extends sixty-feet from the margin of any river that
forms the international boundary. This language, however, does not apply to lands that abut
the Rio Grande River in Texas since there are no federal “public lands” in Texas. Title to
most of the western territories was obtained by the United States from foreign powers
through purchase and treaty. Generally, the terms of acquisition provided for recognition of
the few existing private property rights, but granted title over the vast non-private lands to
the United States. Texas was an exception; it was admitted by annexation in 1845, and
retained title to all its public lands. See United States v. Denver, 656 P.2d 1, 5 n.2 (Co.
1982).
48 37 Stat. 1741.

---

CRS-17
drafting the environmental protection plan; designing the project and formulating the
engineering costs; overseeing the construction process; and enforcing the appropriate
warranties. On most of the tactical infrastructure projects, National Guard units and
military units from the Department of Defense (DOD) Joint Task Force North
provide the labor. DOD uses these projects as part of their training regimen,
leveraging their ability to deploy tactical infrastructure and thereby providing zero
labor costs to CBP.49 The funding for land acquisition and fence materials comes out
of the CBP construction account within the DHS appropriation. Specific funding for
fence construction is rarely identified in the conference reports, though it typically
has been identified within the DHS (and previously the former INS) Congressional
Budget Justifications.50 Table 1 shows the overall amount appropriated for the
USBP construction account, and the specific amounts identified for tactical
infrastructure within that account, since FY1996. Appropriations for fencing and
other border barriers has increased markedly over the past five years, from $6 million
in FY2002 to $93 million in FY2006.
Table 1. Border Patrol Tactical Infrastructure Appropriations
(millions of dollars)
Construction Account
Tactical Infrastructure
Fiscal Year
(total)
Construction
2007 (request)
256
106
2006
298
93
2005
92
15
2004
89
14
2003
235
23
2002
128
6
2001
133
3
2000
100
9
1999
90
4
1998
76
8
1997
10
4
1996
25
4
49 Department of Homeland Security, Congressional Budget Justifications for Fiscal Year
2007, pg. CBP Construction 20. Hereafter referred to as DHS FY2007 Justifications.
50 FY2006 is an exception. Within the conference report, $35 million was identified for the
Southwest Border Fence and $35 million was identified for the construction of vehicle
barriers and other border infrastructure in Tucson sector. H.Rept. 109-241.

---

CRS-18
Sources: For FY2006-FY2007, the amounts appropriated for construction and tactical infrastructure
were identified from the FY2007 DHS Congressional Budget Justifications. For FY2004-FY2005,
the amounts appropriated for construction and tactical infrastructure were identified from the FY2006
DHS Congressional Budget Justifications. FY2003 construction and tactical infrastructure funding
was identified from the FY2005 DHS Congressional Budget Justifications. FY1996-FY2002 tactical
infrastructure funding was identified in the FY2003 INS Congressional Budget Justifications; funding
for FY1998-FY2000 includes San Diego fencing as well as fencing, light, and road projects in El
Centro, Tucson, El Paso, and Marfa. FY2001 and FY2002 construction funding identified from the
FY2002 INS Congressional Budget Justifications. FY2000 construction funding identified from the
FY2001 INS Congressional Budget Justifications and H.Rept. 107-278. FY1999 construction funding
identified from P.L. 105-277. FY1998 construction funding identified from P.L. 105-119. FY1997
funding identified from P.L. 104-208. FY1996 construction funding identified from P.L. 104-134.
Note: In FY2003 immigration inspections from the former INS, Customs inspections from the former
customs service, and the USBP were merged to form the Bureau of Customs and Border Protection
within DHS. As a result of this the data for years prior to FY2003 may not be comparable with the
data for FY2004 and after.
Under the current MOA, once CBP purchases the materials and acquires the
land, the Corps of Engineers undertakes the engineering studies and provides the
manpower and machinery that are used to install the fencing. The actual manpower
is typically provided by the State National Guard (the California National Guard, for
example, constructed much of the San Diego fence), although occasionally the
military, and sometimes the USBP, are involved in the construction.51 The Corps of
Engineers funding comes from the Department of Defense Drug Interdiction and
Counter-Drug Activities Account. Table 2 shows the funding for the “Southwest
Border Fence” sub-account within this DOD Account, from FY1997 to FY2006.
Table 2. DOD Funding for the Southwest Border Fence
(millions of dollars)
Fiscal Year
DOD Funding
2006
3.5
2005
N/A
2004
4.0
2003
4.7
2002
5.0
2001
5.0
2000
4.0
1999
3.0
1998
4.0
1997
5.0
51 From interviews with CBP, November 30, 2005 and September 13, 2006, and the Corps
of Engineers, November 29, 2005.

---

CRS-19
Source: FY2006, H.Rept. 109-359; FY2005, H.Rept. 108-622; FY2004, H.Rept. 108-283; FY2004,
H.Rept. 107-732; FY2002, H.Rept. 107-333; FY2002, H.Rept. 106-945; FY2000, H.Rept. 106-371,
FY1999, H.Rept. 105-746; FY1998, H.Rept. 105-265; FY1997, H.Rept. 104-724.
Notes: FY2005 funding for the “Southwest Border Fence” sub-account was not identified in the
Conference Report, H.Rept. 108-622. The House Committee had recommended $7 million for this
sub-account in H.Rept. 108-553; while the Senate Committee had not recommended any funding for
it in S.Rept. 108-284.
Types of Fences and Barriers
The USBP currently uses three main types of barriers along the border: primary
fencing immediately on the international border, Sandia fencing behind the primary
fencing, and vehicle barriers meant to stop vehicles, but not people on foot, from
traversing the border. While other forms of primary fencing, such as bollard
fencing52 and picket fencing,53 have been constructed in limited areas,54 to date the
agency has largely focused on using the landing mat fencing as a primary fence and
the Sandia fence as a secondary fence.
Landing Mat Fencing. Landing mat fencing is composed of army surplus
carbon steel landing mats which were used to create landing strips during the
Vietnam War. The landing mats form panels 12 feet long, 20 inches wide, and 1/4
inch thick, which are welded to steel pipes buried 8 feet deep every 6 feet along the
fence. Each mile of fencing requires the use of 3,080 panels.55 There are about 5
miles of surplus landing mat fencing remaining as of 2006.56 According to the
USBP, sites that feature landing mat fencing include the following USBP stations:
Campo, CA; Yuma, AZ; Nogales, AZ; Naco, AZ; Douglas, AZ, and El Paso, TX.57
There are 62 miles of landing mat fencing currently constructed.58
52 Bollard fencing is comprised of vertical installations of solid concrete, metal spheres, or
large posts, embedded into the ground at small enough intervals as to be impassable. Bollard
fencing is difficult to compromise but expensive to install. See Appendix I for a depiction
of bollard fencing.
53 Picket fencing is comprised of metal stakes set sufficiently close together as to be
impassable. See Appendix I for a depiction of picket fencing.
54 Roughly 13 miles of these alternate forms of fencing have been constructed to date,
according to an interview with CBP Congressional Affairs on September 13, 2006.
55 U.S. Army Corps of Engineers, Construction Engineering Research Laboratories,
Engineering Life-Cycle Cost Comparison Study of Barrier Fencing Systems, USACERL
Technical Report 99/28, February 1999, p. 14. Hereafter referred to as Corps of Engineers
Study.
56 Interview with CBP Congressional Affairs, September 13, 2006.
57 Telephone conversation with CBP, November 30, 2005.
58 Interview with CBP Congressional Affairs, December 23, 2005.

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CRS-20
In a 1999 study, the Corps of Engineers predicted that construction costs for the
landing mat fencing would range from $388,005 to $431,117 per mile.59 This
estimate includes the cost of materials, despite the fact that the landing mat fencing
constructed to date has been comprised of army-surplus panels acquired by CBP at
no cost. As previously noted, however, only about 5 miles of surplus landing mat
fencing material remains available. Maintenance costs per year could vary widely
depending on the number of breaches the fence undergoes. Low levels of damage to
the fence would result in low annual repair costs, while a large number of breaches
could result in stretches of fencing needing to be replaced. Per mile, the Corps of
Engineers estimated that yearly maintenance costs would probably range from $1,742
to $17,753.60 The Corps of Engineers noted that the net present value61 of the fence
after 25 years of operation, per mile, would range from $5.4 million and $8.3 million
a mile depending on the amount of damage sustained by the fencing each year.
Sandia Secondary Fence. The secondary fence proposed by the Sandia
study has only been constructed over roughly 9.5 miles of the 14 miles in the original
plan due to environmental concerns voiced by the California Coastal Commission.
As previously discussed, P.L. 109-13 included language that will allow waiver of all
legal requirements determined necessary by the Secretary of DHS for the expeditious
construction of authorized barriers and only allows judicial review for constitutional
claims. On September 14, 2005, DHS announced it is applying its new waiver
authority to complete the San Diego fence.62 However, construction has not begun
on the remaining four miles of the San Diego fence because DHS is in the process
of acquiring the necessary land.63 DHS is currently estimating that it will cost an
additional $66 million to finish the San Diego fence, bringing overall costs for this
14 mile-long project to $127 million. Additionally, DHS notes that it will use a mix
59 The Corps of Engineers used 1997 dollars in their study. For the purposes of this
memorandum, the numbers predicted by the Corps have been adjusted to 2005 dollars using
the Gross Domestic Product (GDP) deflator, available at [http://www1.jsc.nasa.gov/bu2/
inflateGDP.html]. The actual predictions made by the Corps, in 1997 dollars, were
$341,584 to $379,538 per mile for construction costs, and $1,534 to $15,629 per year in
maintenance costs.
60 Corps of Engineers Study, p. 21.
61 Net present value is a term used by the Corps of Engineers in their life cycle costs
analyses for construction projects. It amortizes the future costs of a project and shows what
the entire costs of the project will be. In this case, these numbers represent 25 year
predictions and have been adjusted from 1997 dollars to 2005 dollars using a GDP Deflator
62 DHS published a Federal Register notice on September 22, 2005, declaring the waiver of,
in their entirety: (1) the National Environmental Protection Act (42 U.S.C. 4321 et seq.);
(2) the Endangered Species Act (16 U.S.C. 1531 et seq.); (3) the Coastal Zone Management
Act (16 U.S.C. 1451 et seq.); (4) the Federal Water Pollution Control Act (33 U.S.C. §§1251
et seq.); (5) the National Historic Preservation Act (16 U.S.C. §§470 et seq.); (6) the
Migratory Bird Treaty Act (16 U.S.C. §§703 et seq.); (7) the Clean Air Act (42 U.S.C.
§§7401 et seq.); and (8) the Administrative Procedure Act (5 U.S.C. §§551 et seq.).
63 Telephone conversation with CBP, November 30, 2005.

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of DOD resources and private contractors to finish the fence, and that the cost of
using contractors is included in the request.64
The Sandia fence, as it has been constructed in the San Diego sector, is a
secondary fence constructed behind the primary fence. Enough space is left between
the two fences to accommodate an access road. The secondary fence is an angled
two-piece fence. The fence is vertical up to ten feet high, and then extends out at an
angle towards the climber. This prevents climbing by using gravity and the weight
of the climber against them. The Corps of Engineers estimated that Sandia fencing
costs per mile would range from $785,679 to $872,977 for construction and $953 to
$7,628 per mile yearly for maintenance. Additionally, the Corps of Engineers study
notes that the Sandia fence would possibly need to be replaced in the fifth year of
operation and in every fourth year thereafter if man-made damage to the fence was
“severe and ongoing.” For this reason, in the study the Corps of Engineers noted that
the net present value of the fence after 25 years of operation, per mile, would range
from $11.1 million to $61.6 million.65
Other Border Barriers: Vehicle Barriers
The USBP utilizes various different types of barriers to impede vehicles from
crossing into the United States from Mexico. Some of these barriers are temporary
and can be moved to different locations when needed, others are permanent barriers.
The main purpose of vehicle barriers is to prevent smugglers from easily driving their
vehicles across the border.

Permanent Vehicle Barriers. Permanent vehicle barriers, as their name
suggests, are not designed to be moved but rather are permanent installations.
Permanent vehicle barriers are typically steel posts, or bollards, that are excavated 5
feet deep and inserted into a poured concrete base. The posts alternate in above-
ground height in order to dissuade individuals from forming a ramp over the barrier.
They are spaced so as to allow foot and animal traffic but not vehicular traffic. The
USBP recently began building permanent vehicle barriers in the Yuma sector, with
a substantial stretch slated to be built along the Organ Pipe Cactus National
Monument. When linked with the 30 miles of vehicle barriers built by the National
Park Service, a USBP spokesman reportedly noted that the total 123 mile length of
the project “will form the largest continuous physical barrier along the border in the
nation.”66
In the FY2007 DHS Congressional Budget Justifications, DHS notes that the
Yuma vehicle barrier project would take until at least 2010 (and possibly longer) to
64 DHS FY2007 Justifications. pg. CBP Construction 18.
65 The numbers used by the Corps of Engineers were cited in 1997 dollars. They have been
adjusted to 2005 dollars using the GDP deflator cited above. The actual costs per mile in
the Corps of Engineers Study were: $691,680 to $768,533 for construction, and $839 to
$6,715 for maintenance. Net Present Value after 25 years in 1997 dollars ranged from
$9.73 million to $54.23 million. Corps of Engineer Study, p. 3 and p. 23.
66 Jonathan Athens, “Officials say OK to Border Fence,” YumaSun.com (July 20, 2005)
available at [http://sun.yumasun.com/google/ysarchive14980.html].

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complete if CBP continued to use the Corps of Engineers and other military
personnel to construct the barriers. Instead, CBP proposes hiring commercial
contractors to build 39 miles of vehicle barriers in the Yuma sector, or almost half
of the project’s 93 mile total.67 CBP is projecting that the project will be completed
by FY2011, and that the overall project costs will be $116 million.68 This means that,
overall, the project will cost roughly $1.25 million per mile. The National Park
Service has spent $11.1 million to construct 18 miles of permanent vehicle barriers
in Organ Pipe Cactus National Monument, and has obligated, but not yet spent, an
additional $6.6 million in FY2005 funding to complete the remaining 13 miles of the
project.69
DHS currently has roughly 50 miles of vehicle barriers deployed along the
border.70 Vehicle barriers have been used in the El Centro, CA, Yuma, AZ, Tucson,
AZ, and El Paso, TX sectors.71
Temporary Vehicle Barriers. Temporary vehicle barriers are typically built
from welded metal, such as railroad track, but can also be constructed from telephone
poles or pipe. These barriers are built so that they cannot be rolled or moved
manually; they can only be moved with a forklift or a front-end loader. They are
usually built at USBP stations and transported to areas of high vehicle entry, where
they are placed and chained together.72 The main advantage of the temporary vehicle
barriers is their ability to be redeployed to different areas to address changes in
smuggling patterns. The main disadvantage of these barriers is that they are easier
to compromise than permanent vehicle barriers.
Legislation in the 109th Congress
The 109th Congress enacted three main pieces of legislation concerning border
fencing. The REAL ID Act (P.L. 109-13) expanded DHS’ waiver authority to
expedite the construction of border fencing. The Secure Fence Act of 2006 (P.L.
109-367) directed DHS to construct roughly 850 miles of border fencing. The
FY2007 DHS Appropriations Act (P.L. 109-295) provided $1.2 billion for the
67 DHS FY2007 Justifications, pg. CBP Construction-7. CBP project length does not
include the 30 miles of vehicle barriers maintained by the National Park Service.
68 DHS FY2007 Justifications, pg. CBP Construction-18. It is unclear why the project is
predicted to take less time with contractors, and yet the overall completion date for the
construction is predicted to be 2011.
69 From the National Park Service, February 9, 2006. The National Park Service notes that
30 miles of permanent vehicle barriers are being built at the Organ Pipe Cactus National
Monument, and one mile is being built in the Coronado National Monument.
70 Email correspondence with CBP Congressional affairs, December 23, 2005.
71 Telephone conversation with CBP, November 30, 2005.
72 U.S. Department of Justice, Immigration and Naturalization Service, Final Environmental
Assessment U.S. Border Patrol Temporary Vehicle Barriers Naco and Douglas, Arizona,
November 2002.

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installation of fencing, infrastructure, and technology along the border. In addition
to these acts, a number of bills with fencing related provisions were enacted by the
House and the Senate. H.R. 4437 and H.R. 6061, which would direct DHS to
construct roughly 850 miles of fencing along the border, were passed by the House
on December 16, 2005, and September 14, 2006, respectively. H.R. 6061 was also
passed by the Senate on September 29, 2006, and was signed into law as P.L. 109-
367 by the President on October 26, 2006. S. 2611, which calls for 370 miles of
fencing to be constructed, was passed by the Senate on May 25, 2006. S.Amdt. 4788
was added to the Department of Defense Appropriation bill, H.R. 5631, on August
2, 2006, and would have appropriated $1.8 billion to the National Guard for the
construction of border fencing. H.R. 5631 was passed by the Senate on September
7, 2006; however, this fencing provision was stripped from the bill during
conference.
In addition to the bills discussed above, there are a number of bills in the 109th
Congress that would expand the current fencing and other forms of barriers at the
international land border. Some of these bills would require fencing to be
constructed along the entire southwest border, others would identify particular
stretches of land which would receive fencing, and still others would call for studies
to determine whether fencing is a cost-effective way of securing the border.
Following is a brief discussion of the border barrier related legislation in the 109th
Congress.
H.R. 4083 would amend the INA to direct the Secretary to construct a fence
along the entire southwest border and would authorize $2 billion for this purpose.
S. 1916 includes a provision requiring the Secretary to study the feasibility and cost
of constructing a triple fence along the southwest border. S. 2049 would direct the
Secretary to construct whatever fencing and other infrastructure is necessary to
achieve operational control of the border. H.R. 4313, S. 2061, S. 2117, S. 2368, and
S. 2377 would direct the Secretary to construct a two layered reinforced fence along
the southern international land border, starting with high alien traffic and smuggling
areas. H.R. 4313, S. 2117, S.2368, and S. 2377 would also direct the Secretary to
create a border zone within 100 yards of the land border and would require other
agencies to transfer any land in their jurisdiction that falls inside the border zone to
DHS without reimbursement. Additionally, H.R. 4313 and S. 2117 would direct the
Secretary to undertake a review and value assessment of all property in the border
zone owned by private parties and state and local governments, and to begin
acquiring this property as soon as practicable.
P.L. 109-295, the FY2007 DHS Appropriations Act, provides $1.2 billion in
funding for border fencing, infrastructure, and technology; combined with the
supplemental appropriation provided by P.L. 109-234, the conferees note that DHS
will have $1.5 billion for border infrastructure construction in FY2007.73 The
conferees directed DHS to submit an expenditure plan for this funding within 60 days
of the bill’s enactment, and withheld $950 million of the funding until this plan is
73 For more information about DHS Appropriations, please refer to CRS Report RL33428,
Homeland Security Department: FY2007 Appropriations, Jennifer Lake and Blas Nuñez-
Neto, Coordinators.

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received and approved by the House and Senate Committees. However, the act does
not place any restrictions on how DHS is to apportion this appropriation between
fencing, infrastructure, and technology.
P.L. 109-367, the Secure Fence Act, which originated in the House as H.R.
6061, directs DHS to construct two-layered reinforced fencing and additional
physical barriers, roads, lighting, cameras, and sensors along roughly 850 miles74 of
the southern border. The five stretches of the border that DHS is required to fence
are the 20 miles around Tecate, CA; from Calexico, CA to Douglas, AZ; from
Columbus, NM to El Paso, TX; from Del Rio, TX to Eagle Pass, TX; and from
Laredo, TX to Brownsville, TX. The act designates the roughly 370 mile portion of
the fence between Calexico, CA, and Douglas, AZ, a priority area and directs DHS
to ensure that “an interlocking surveillance camera system” is installed along this
area by May 30, 2007, and that the fence is completed in this area by May 30, 2008.
The act also designates a 30-mile stretch around Laredo, TX, as a priority area and
directs DHS to complete this fencing by December 31, 2008. This language is
similar to that passed earlier by the House in H.R. 4437. The fencing provisions in
H.R. 4437 were largely identical to those in H.R. 6061, except that H.R. 4437
featured earlier construction deadlines for the priority areas identified by one year for
the Calexico, CA, to Douglas, AZ, stretch of fencing and by two years for the 30-mile
stretch around Laredo, TX.
S. 2611, as amended, S. 2454, S. 2612, and S. 3564 would replace the current
border fencing in the Tucson sector with a reinforced double layer fence and would
direct DHS to construct 150 miles of vehicle barriers in the sector. S. 2454 would
require that fencing be extended 25 miles west of Naco, AZ; S. 2611, S. 2612, and
S. 3564 would require that fencing be extended at least 10 miles west of Naco. Each
of the bills would also expand the fencing in the Yuma sector, would require that the
double or triple layer fence constructed be extended at least two miles beyond urban
areas, and would add 50 miles of vehicle barriers to the sector. The bills would direct
DHS, in conjunction with other federal agencies, to submit a study on the
construction of a system of barriers along the southern and northern borders,
including information on the need for such a system, the costs associated with
constructing the system, the system’s potential environmental impacts, and the
system’s potential impact on trade or tourism. S. 2394 would direct DHS to initiate
a process for planning, constructing, and maintaining a permanent barrier or wall
along appropriate areas of the border.
S. 2611, as amended, and S. 3564 would further direct DHS to construct 370
miles of triple-layered fencing and 500 miles of vehicle barriers in areas along the
southwest border most often used by smugglers or illegal aliens to enter the United
States within two years of enactment. The Senate-passed Defense Appropriations
bill for FY2007 (H.R. 5631), as amended by S.Amdt. 4788, would appropriate
$1,829 million for the National Guard to construct 370 miles of triple-layered fencing
and 500 miles of vehicle barriers along the southwest border.
74 From CBP Congressional Affairs, September 25, 2006.

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H.R. 4437 and H.R. 4312 would require DHS to reimburse property owners
for the costs incurred in repairing private infrastructure along the border damaged by
aliens entering the country illegally. The bills would authorize appropriations of
$50,000 a year for this program.
Issues For Congress
Congress may consider a number of policy issues concerning the construction
of barriers along the border, including, but not limited to, their effectiveness, overall
costs compared with benefits, possible diplomatic ramifications, unintended
consequences, and the locations in which they are to be constructed. Although these
issues apply to all potential barriers at the border, due to the focus on border fencing
in the current congressional debate, this section will focus its analysis on the potential
policy issues surrounding the construction of fencing at the border.
Effectiveness
Proponents of border fences point to the substantial reduction in apprehensions
along the San Diego sector as tangible proof that fences succeed in reducing cross-
border smuggling and migration where they are constructed.75 Opponents attribute
part of the decrease in apprehensions to the increase in manpower and resources in
the sector and, pointing to the increase in apprehensions in less-populated sectors,
contend that the fence only succeeds in re-routing unauthorized migration and not in
stopping it.76 The USBP, for its part, states that border fencing is a force multiplier
because it allows its agents to focus enforcement actions in other areas. The USBP
has also stated that the fencing constructed in urban areas has helped reroute
unauthorized migration to less populated areas where its agents have a tactical
advantage over border crossers. As previously noted, the number of USBP
apprehensions in 2004 were almost identical to the number of apprehensions in 1992;
the main difference is that while San Diego accounted for the majority of
apprehensions in 1992, in 2004 Tucson and Yuma sectors accounted for the majority
of apprehensions.
A possible issue for Congress concerns the overall effectiveness of border
fencing, especially if it is not constructed across the entire border in question. In the
limited urban areas where border fencing has been constructed, it has typically
reduced apprehensions. However, there is also strong indication that the fencing,
combined with added enforcement, has re-routed illegal immigrants to other less
75 For the views of supporters of border fencing, refer to “We Need a Fence,” available at
[http://www.weneedafence.com/], last visited September 21, 2006, and Thomas Sowell,
“Let’s Get Our Terms Straight,” available at [http://www.annistonstar.com/opinion/2006/
as-insight-0402-0-6d01s3130.htm], last visited September 21, 2006.
76 For the views of opponents of border fencing, refer to Eilene Zimmerman, “Against the
Wall,” Salon, December 12, 2005, available at [http://dir.salon.com/story/news/feature/
2005/12/12/border_wall/index.html], last visited September 21, 2006, and Molly Ivins,
“Another Brick in the Wall,” available at [http://www.annistonstar.com/opinion/2006/
as-insight-0402-0-6d01s3130.htm] last visited September 21, 2006.

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fortified areas of the border. Additionally, in the limited areas where fencing has
been erected there have been numerous breaches of the border fencing and a number
of tunnels discovered crossing underneath the fencing. It stands to reason that even
if border fencing is constructed over a significant portion of the land border, the
incidences of fence breaches and underground tunnels would increase. Possible
policy options to address these issues could include mandating that border fencing
be highly tamper-resistant or directing CBP to invest in tunnel-detection
technologies.
Costs
Because border fencing is a relatively new and limited phenomenon along the
U.S.-Mexico border, there is a dearth of information concerning its overall costs and
benefits. The Corps of Engineers study predicted that the costs of constructing a
double layer fence consisting of primary fencing and Sandia fencing would range
from $1.2 million to $1.3 million a mile, excluding the costs of land acquisition. The
Corps of Engineers also predicted that the 25-year life cycle cost of the fence would
range from $16.4 million to $70 million per mile depending on the amount of
damage sustained by the fencing. If significant portions of the border were to be
fenced, reducing the areas along which individuals could cross the border, it may
stand to reason that the fencing will be subjected to more breaches and other attempts
to compromise than the fencing that has already been constructed. This may mean
that the costs of maintaining border fencing that is widely deployed in the future will
be higher than they have been thus far for the limited deployment. The Corps
estimates do not include the costs of acquiring the land or most labor costs, since
construction would be done by DOD; these could well turn out to be significant
expenses if private contractors are used to construct the fencing as per DHS’ FY2007
Congressional Budget Justifications. The Congressional Budget Office (CBO) has
estimated that border fencing would cost $3 million a mile to construct.77 However,
the CBO does not elaborate on what is included in that estimate. DHS predicts that
the San Diego fence will have a total cost of $127 million for its 14-mile length when
it is completed — roughly $9 million a mile. Construction of the first 9.5 miles of
fencing cost $31 million, or roughly $3 million a mile, while construction of the last
4.5 miles of fencing is projected to cost $96 million, or roughly $21 million a mile.
However these costs may be somewhat misleading due to the following factors:
construction of the fence was delayed for an extended period of time; the remaining
construction involves filling a relatively large gulch which may be more complex
than the average stretch of border; and DHS is proposing to use private contractors
to expedite the construction process which will increase the labor costs and thus the
project costs.
Some have argued that building fences on the border is too expensive and would
consume funding that would be better spent on hiring additional agents or deploying
77 Congressional Budget Office, Congressional Budget Office Cost Estimate: S. 2611
Comprehensive Immigration Reform Act of 2006, May 16, 2006, p. 34. Available at
[http://www.cbo.gov/ftpdocs/72xx/doc7208/s2611.pdf], last visited August 2, 2006.

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additional technologies to the border.78 Others maintain that the costs of fencing are
negligible compared to the costs of illegal immigration, and that fencing has been
proven effective at decreasing illegal immigration in those areas where it has been
deployed.79 The USBP has testified that “for border control, for border security, we
need that appropriate mix. It’s not about fences. It’s not about Border Patrol agents.
It’s not about technology. It’s about all of those things.”80 At issue for Congress is
how best to allocate scarce border security resources while safeguarding homeland
security. Does border fencing represent the best investment of border security
funding, and what is the appropriate mix of border security resources? How much
will maintaining border fencing cost in the future, and which agency will be
responsible for this maintenance? Will using private contractors to expedite the
construction of border fencing increase the costs?
Fence Design
Congress mandated the design of the border fence in San Diego in IIRIRA.
Many of the bills being considered in the 109th Congress that include fencing
provisions also identify the kind of fencing — typically double or triple fencing —
that should be constructed. There are many different fence designs that could be
deployed to the border, and each have their relative strengths and weaknesses.
Concrete panels, for example, are among the more cost-effective solutions but USBP
agents cannot see through this type of fencing; the USBP has testified about their
preference for fencing that can be seen through, so as to identify the activity
occurring on the Mexican side of the border and thus preserve their tactical advantage
over potential border crossers, and to better avoid potential rockings81 or other violent
incidents. Sandia fencing has been effective in San Diego and can be seen through,
but is among the more expensive fencing options. Bollard fencing has been effective
in its limited deployment and can also be seen through, but is also expensive to
install and to maintain. Chain link fencing is relatively economical, but more easily
78 See Jason Ackleson, “Fencing in Failure; Effective Border Control is Not Achieved by
Building More Fences,” Immigration Policy in Focus, Vol. 4, Issue 2, April 2005, available
at [http://www.ailf.org/ipc/policy_reports_2005_fencinginfailure.asp], last visited
September 21, 2006.
79 For a series of examples, see Parapundit, Immigration Border Control Archives, available
at [http://www.parapundit.com/archives/cat_immigration_border_control.html], last visited
August 20, 2006.
80 Testimony of Kevin Stevens, Senior Associate Chief of Customs and Border Protection,
in U.S. Congress, House Homeland Security Committee, Economic Security, Infrastructure
Protection and Cyber Security Subcommittee, and House Government Reform Committee,
Criminal Justice, Drug Policy, and Human Resources Subcommittee, Fencing the Border:
Construction Options and Strategic Placement, 109th Cong., 2nd sess, July 20, 2006.
Hereafter referred to as: Fencing the Border hearing, July 20, 2006.
81 Rockings refer to the phenomenon of individuals on the Mexican side of the border
hurling stones and other items over the fence at USBP agents and vehicles. In the Yuma
sector, for example, agents patrolling along the fence are deployed in armored vehicles
known as “war-wagons” to protect themselves from rockings and other forms of assault,
which are common in that area. Information obtained during a CRS site visit to Yuma sector
in August, 2005.

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compromised.82 If fencing is to be constructed along the border, an issue concerns
what kinds of fencing should be constructed in order to maximize its deterrent effect
and its utility to the USBP while minimizing the costs associated with its
construction and maintenance.
Fence Location
The USBP has testified that border fencing is most effective for its operational
purposes when deployed along urban areas.83 In these areas, individuals crossing the
border have a short distance to cover before disappearing into neighborhoods; once
they have entered neighborhoods it is much more difficult for USBP agents to
identify and apprehend unauthorized aliens. Additionally, from populated areas it is
relatively easy for unauthorized aliens to find transportation into the interior. For
these reasons, all of the border fencing constructed by the USBP to date has been
built in urban areas abutting the border, such as San Diego, Nogales, and El Paso.
In rural areas, the USBP has testified that it has a tactical advantage over border
crossers because they must travel longer distances before reaching populated areas.
According to CBP, fencing is manpower intensive because agents must continually
check the fence for breaches and for illegal activity. This does not represent a
problem in urban areas, because the USBP stations are typically located near the
border in those areas. In some of the more rural areas of the border, where the
nearest towns and USBP stations may be many miles away from the border, this
would mean that agents would need to spend much of their working day commuting
from the nearest USBP station to the fence location.84 Additionally, because the
border fencing constructed to date has been built along urban areas it has been
relatively easy to house the individuals involved in its construction. If border fencing
is extended into the more remote areas of the border, the costs of its construction may
increase due to the need to bring the individuals and goods needed to build the fence
to these areas for extended periods of time. Lastly, some areas of the border are
prone to severe weather effects, such as flash flooding, that could compromise any
permanent structures constructed there.
A very practical issue concerns what areas of the border should be fenced.
Should fencing be restricted to urban or semi-urban areas in order to give the USBP
a tactical advantage over border crossers, or should fencing be constructed along any
geographical area of the border that features large numbers of unauthorized
immigration? In rural areas, should fencing be limited to areas of high illegal entry
in order to impede individuals from crossing the border, or should fencing be
constructed as a deterrent in any area, even those featuring low levels of illegal entry?
Should fencing be deployed in sectors where the distance between the nearest USBP
station and the fence requires agents to spend most of their day commuting? Should
fencing be deployed to the northern border as well as the southwest border? Will
building fencing along more remote or environmentally harsher areas of the border
increase the construction costs?
82 Fencing the Border hearing, July 20, 2006.
83 Fencing the Border hearing, July 20, 2006.
84 Interview with CBP Congressional Affairs, September 13, 2006.

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Land Acquisition
There are a number of issues associated with the acquisition of the land that
would be required for border fencing. Much of the land along the California and
Arizona border is owned by the federal government; however most of the land along
the Texas border is owned by private individuals. What will the costs of acquiring
the land to construct border fencing be, and have these costs been factored into
estimates of border fencing costs? Will eminent domain be used to confiscate land
from individuals who do not wish to have fencing built on their lands?
The reservations made by Presidents Roosevelt and Taft may have kept
substantial parcels of land within the federal domain, depending mostly on the
amount of public lands at the time and valid existing claims. CRS was not able to
determine how many valid claims and land patents exist, if any, or the number of
private developments that may be encroaching on the reservations. Nonetheless, it
appears that only those who qualify under an exception or were provided land by
statute have valid fee title claims within the reserved strip. If lands were mistakenly
granted, sold, or transferred to private parties, these conveyances could be void
because, as a general rule, rights can not be acquired in lands actually embraced in
a legally valid withdrawal.85 Compensation under the Fifth Amendment for private
landowners may not be owed if private claims are not legitimate. Because the
proclamations do not cite any supporting authority, some question the President’s
implied or inherent constitutional powers to issue them.86 Others may argue that they
conflict with the exclusive mandate given Congress by the Property Clause of the
Constitution to regulate and dispose of federal property.87 An issue for Congress may
include whether these proclamations are, in fact, valid, and if so what actions are
appropriate to take in the instances where individuals own land within the
reservation’s boundaries. Assuming the proclamations are valid, the reservations
may provide the first sixty-feet of necessary space for fence construction in many
areas. However, the two layer fencing constructed to date includes 150 feet of land
between its layers. An issue for Congress may involve whether to confine border
85 Charles F. Wheatley, Study of Withdrawals and Reservations of Public Domain Lands,
at Vol. III, at A-7 (1969); see also Steel v. Smelting Co., 106 U.S. 447, 453 (1882)
(observing that the patent, like the deed of an individual, is inoperative if the government
never owned the property, or had previously conveyed it, or had reserved it from sale);
United States v. Fennell, 381 F. Supp. 2d 1300 (D. N.M. 2005). Cf. United States v.
California, 332 U.S. 19, 39 (1947) (finding the federal government’s paramount rights in the
three-mile belt along the California coast were not lost by reason of the conduct of its agents
or the acquiescence of such agents in California’s claim of title).
86 See United States v. Midwest Oil, 236 U.S. 459, 471 (1915) (upholding the President’s
authority to make land withdrawals on the basis of implied acquiescence in such
withdrawals by Congress), repealed by 43 U.S.C. §1714. The President’s constitutional
inherent withdrawal power derived from three theories — residual Executive power,
stewardship, and constitutional necessity. See Wheatley, Study of Withdrawals, at Vol I, at
134. In Midwest Oil, the Court noted that by 1910, the President had implemented at least
252 executive orders making reservations for useful, though non-statutory purposes. Id. at
471.
87 U.S. CONST. Art. IV, §3, cl.2.

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fencing to the 60 feet easement reserved by the proclamations, or whether to acquire
the additional 90 feet of land that would be needed to construct Sandia-style fencing.
A corollary issue may involve DHS’ authority to construct border fencing along
tribal lands. The Arizona desert along the Tohono O’odham reservation has become
one of the most heavily trafficked border areas in the country, and the USBP has been
restricted in its operations in the reservation due to tribal concerns.88 The Tohono
O’odham have reportedly vowed to fight the construction of fencing on tribe-owned
land, citing environmental and cultural concerns.89 Under current law, the Secretary
of the Interior may grant rights-of-way over and across tribal land, provided the
Secretary receives prior written consent of the tribe.90 If the tribe does not consent,
DHS may look to its new waiver authority to construct a fence across tribal lands.
It is unclear, however, whether the expanded waiver that was given to the Secretary
of DHS would allow (or was intended to allow) the Department to override the
statutory authority given to another federal agency. Ultimately, federal government
holds all Indian lands in trust, and Congress may take such lands for public purposes,
as long as it provides just compensation as required by the Fifth Amendment.91
Diplomatic Ramifications
The governments of Mexico and Canada have both voiced concern about the
United States constructing barriers along the international border. Mexican President
Vicente Fox has come out strongly against the construction of border barriers on
numerous occasions, stating his belief that these projects isolate the two nations,
create frustration and misunderstandings, and do not solve the underlying problems
that lead individuals to enter the United States illegally. Mexican Press Secretary
Rubén Aguilar Valenzuela stated his government’s belief that “history has also taught
us that a wall is never the solution to problems and that all walls eventually get torn
down.”92 The Mexican government has reportedly forwarded numerous diplomatic
notes to the White House registering its complaints against the possible expansion
of border fencing. The Canadian government has also reportedly voiced concern
over language that was inserted into H.R. 4437 that would require a study of fencing
options along the northern border, citing the impracticality of fencing the northen
border and the fact that the U.S. government has never discussed such a plan with
88 The USBP has been prohibited from building permanent camera installations and from
paving access roads leading to and along the border. Information obtained during a CRS
site-visit to the Tohono O’odham reservation, August 2005.
89 Randal Archibald, “Border Fence Must Skirt Objections From Arizona Tribe,” New York
Times, September 20, 2006.
90 25 U.S.C. §324.
91 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).
92 Mexican Government Press Release, “Crecimiento con Calidad: El Presidente Vicente
Fox encabezará la cena de gala de la XI Cumbre Anual Hemispheria San Pedro 2005: Rubén
Aguilar, Vocero de Presidencia,” May 12, 2005. Translation by CRS. Available at
[http://www.presidencia.gob.mx/actividades/crecimiento/?contenido=18195&pagina=31].
Last visited August 20, 2006.

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Canadian authorities.93 Deputy Assistant Secretary for Immigration and Customs
Enforcement John P. Clark reportedly stated during Congressional testimony that the
proposed expansion of border fencing “harkens back to the Chinese wall and the
Berlin Wall, not the message we want to send to the Mexican government, the
Canadian government, and the rest of the world.”94 There are a number of possible
issues for Congress to consider involving the potential diplomatic ramifications of
constructing barriers along the border: Do the gains in border security outweigh the
risk of alienating Mexico and Canada? Should the Mexican or Canadian
government’s opinions or wishes be taken into account when border fencing is
concerned? Given the need to coordinate intelligence and law enforcement activities
at the border, should maintaining cordial working relationships with Mexico and
Canada take precedence over sealing the border with physical barriers?
Environmental Considerations
There has been a great deal of debate around the environmental impacts of
border fencing. The addition of fences along the southwest border, according to
some, could harm sensitive environments, adversely affect critical habitat for
protected species, and block migratory patterns for animals. Indeed, these concerns
were among the many voiced by the CCC in its objection to the completion of the
San Diego border fence. After immigration officials, the CCC, and the
environmental community could not agree on a fence design, Congress passed waiver
language in the REAL ID Act that allows the Secretary of DHS to waive all “legal
requirements” necessary to ensure expeditious construction of the barriers and roads
in the vicinity of the U.S. border. The Secretary used this provision to waive a
number of primarily environmental laws (See Appendix I) in order to complete the
San Diego border fence. DHS maintains, however, that it will follow “best
management practices” throughout construction and will be “mindful of the
environmental impacts” that might occur.95 Nonetheless, the Secretary’s broad
waiver authority has many worried about potential fence projects along other areas
of the southwest border. Some argue that a fence along the Arizona border could be
especially destructive to endangered jaguar and Sonoran desert pronghorn
populations that usually roam this area because it would fragment native habitat and
ultimately reduce gene pools.96 Officials from the U.S. Fish and Wildlife Service,
however, have said that it is too early to speculate about the potential impact of a
93 Beth Gorham, “Canada Balks at U.S. Plan for Border Fence,” Canadian Press, December
17, 2005. Available at [http://www.canada.com/nationalpost/story.html?id=6c13f3fd
-bdfb-4346-99ef-3f01f870c801&k=60592&p=1], last visited August 20, 2006.
94 Eunice Moscoso, “Border Fence Would Cost Millions, Not Work Critics Say,” Cox News
Service, November 9, 2005.
95 Eilene Zimmerman, SFGate.com, Border protections imperil environment — Last
wilderness area south of San Diego could be damaged, Feb. 27, 2006, available at
[http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/27/MNG2GHFBFL1.DTL
&type=printable].
96 Id; Defenders of Wildlife, On the Line, pp. 16-19.

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border fence on wildlife migration.97 Others note that unauthorized migration
negatively impacts the environment, and believe that the construction of fencing
could actually have a beneficial impact for protected lands if it reduces the number
of unauthorized migrants traversing through environmentally sensitive lands.
As Congress debates immigration reform and the addition of new border fences,
Members will undoubtedly be called upon to balance national security interests with
environmental protections. Because there does not appear to be a clear consensus on
the environmental impacts of border fencing, there is some interest in a study of the
issue.98 The effects of the San Diego border fence, for example, may help scientists
better understand and predict potential environmental consequences elsewhere.
Should fencing be expanded along the southwest border, Congress may be interested
in environmentally sensitive alternatives to normal fencing and whether they can
effectively limit illegitimate cross-border traffic. Some argue that vehicle barriers
may be less intrusive because they allow unimpeded wildlife movement but can limit
damaging vehicular traffic.99 Congress may also call on the Secretary to cooperate
or coordinate certain activities with the environmental community, since the
Secretary could waive many environmental requirements.100
Legal Considerations
The building of barriers along the international border has raised a number of
legal issues. Most stem from requirements posed by environmental laws. Before the
passage of the REAL ID Act waiver provision, for example, the Sierra Club and other
environmental groups challenged, under the National Environmental Policy Act, the
federal government’s plan to complete the San Diego border fence.101 The lawsuit
alleged, among other things, that the government’s final environmental impact
statement did not address the entire 14-mile border infrastructure system and
inadequately addressed the parts that were evaluated. After Secretary Chertoff
exercised the waiver authority, the court dismissed the environmentalists’ lawsuit in
December 2005. The groups will reportedly file an entirely new lawsuit arguing that
the government must still comply with certain laws, including the Clean Water Act
97 Chuck Mueller, Dailybulletin.com, Experts say border fence would hurt bighorn sheep
(Aug. 14, 2006) available at [http://www.dailybulletin.com/news/ci_4177153]. Reports also
indicate that a constant flow of illegal aliens into the native habitat for these animals
interferes with their use of certain lands and survival. See Defenders of Wildlife, On the
Line, p. 18.
98 Indeed, §129 of S. 2611 calls on the Secretaries of the Interior, Agriculture, Defense, and
Commerce, and the Administrator of the EPA to assess the environmental impacts, including
the impact on zoning, global climate change, ozone depletion, biodiversity loss, and
transboundary pollution, of physical barriers along the southern international land and
maritime borders.
99 Defenders of Wildlife, On the Line, p. 35; Anne Minard, National Geographic News, U.S.
Immigration Law Could Harm Desert Animals, Critics Say, (Mar. 31, 2006) available at
[http://news.nationalgeographic.com/news/2006/03/0331_ 060331_desert_fence.html].
100 See generally, Defenders of Wildlife, On the Line.
101 Sierra Club v. Ashcroft, No. 04-CV-272, (S.D. Cal. Feb. 10, 2004).

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and Clean Air Act and contend that the waiver extends beyond Congress’s
authority.102
With respect to the Secretary’s use of the waiver authority, the provision allows
legal redress for only constitutional violations and limits review to the district courts
of the United States. In essence, an individual could not sue DHS for bypassing the
environmental impact statement requirements of the National Environmental Policy
Act (a law it has waived) because that would be a statutory violation but could sue
for the taking of property without “just compensation” as provided by the Fifth
Amendment. Should a district court make a ruling, that decision can only be
appealed to the Supreme Court — i.e., there is no appellate court review. Appeal
directly from a district court to the Supreme Court rarely appears in law103 and
according to some scholars, has been a “failure.”104 Past experiences, for example,
demonstrated that the cases took up a disproportionate amount of time for oral
argument and came to the Court on inadequate records.105 Still, when Congress
determines a particular class of cases to be of great public import, it is not
unprecedented for it to require prompt review in the highest court of the land.
Unintended Consequences
There is considerable evidence that the USBP’s historical strategy of
“Prevention through Deterrence,” whereby agents and resources including border
fencing and other barriers have been concentrated along urban areas and areas
traditionally featuring high levels of illegal entry, has succeeded in changing the flow
of illegal migration. While San Diego and El Paso were historically the two sectors
that featured the most apprehensions and the highest levels of illegal immigration,
since the mid-1990s and the advent of Operations Gatekeeper and Hold the Line in
those sectors, the more remote geographical areas of the Arizona border have become
the hot-spots for illegal migration into the United States. One unintended
consequence of this enforcement posture and the shift in migration patterns has been
an increase in the number of migrant deaths each year; on average 200 migrants died
each year in the early 1990s, compared with 472 migrant deaths in 2005. Another
unintended consequence of this enforcement posture may have been a relative
increase, compared to the national average, in crime along the border in these more-
remote regions. While crime rates in San Diego, CA and El Paso, TX, have declined
over the past 15 years, the reduction in crime rates along the more rural areas of the
102 Rob Davis, Voice of San Diego.com, The Border’s Pending Fight, May 5, 2006,
available at [http://www.ccis-ucsd.org/news/vosd-5-5-06.pdf#search=%22the%20borders
%20pending%20fight%22].
103 Laws that allow a district court ruling to be appealed directly to the Supreme Court
include 13 U.S.C. §141 (illegal use of census data); 15 U.S.C. §29 (Sherman Act violations);
18 U.S.C. §700 (flag desecration violations); 42 U.S.C. §1971 (voting rights violations); and
42 U.S.C. §2000a-5 (civil rights violations).
104 Charles Alan Wright & Mary Kay Kane, Law of Federal Courts, Ch. 12, §105 (6th ed.
2002).
105 Id. Moreover, 28 U.S.C. §1254 allows the Court to bypass the courts of appeals by
granting certiorari before judgement in those courts.

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border have lagged behind the national trends. Another unintended consequence of
the border fencing has been the proliferation of tunnels dug underneath the border.
In San Diego, where the double-layer Sandia fencing has been constructed, smugglers
have dug a number of tunnels underneath the border fence. One of these tunnels was
almost a kilometer long and was built from reinforced concrete — evidence of a
rather sophisticated smuggling operation.
A possible issue for Congress to consider as it debates expanding the existing
border fencing concerns what the unintended consequences of this expansion could
be. Given the re-routing of migration flows that have already occurred, are DHS and
the relevant border communities prepared to handle the increased flow of illegal
migration to non-reinforced areas? Is DHS prepared to deal with an increase in the
phenomenon of cross-border tunnels and other attempts to defeat the purpose of the
fencing? What will the impact on crime rates be along the unreinforced areas of the
border? Will USBP agents be required to spend some of their patrolling time
guarding the fence?

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Appendix I: Examples of USBP Border Fencing
Source: U.S. Department of Justice, Immigration and Naturalization Service, Environmental
Assessment for Infrastructure Within U.S. Border Patrol Naco-Douglas Corridor Cochise County,
Arizona, August, 2000, p. 1-13.

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Appendix II: The San Diego Fence
Source: U.S. Department of Homeland Security; Environmental Impact Statement for
the Completion of the 14-Mile Border Infrastructure System San Diego, California, July
2003.

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Appendix III: Permanent Vehicle Barrier Schematic
Source: U.S. Department of the Interior, National Park Service, Proposed Vehicle Barrier
Environmental Assessment, April, 2003.

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Appendix IV: Permanent Vehicle Barriers
Source: CBP Congressional Affairs.

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Appendix V: Data From Figure 4
FY1992
FY1993
FY1994
FY1995
FY1996
FY1997
FY1998
FY1999
FY2000
FY2001
FY2002
FY2003
FY2004
Other San Diego
204,456
210,129
155,386
262,505
297,423
189,321
160,781
140,640
113,866
85,815
87,195
96,752
119,293
Sector Stations
Chula Vista
158,952
156,273
107,872
141,096
111,413
67,804
72,648
27,085
19,453
9,627
3,080
4,545
9,923
Station
Imperial Beach
202,173
165,287
186,894
120,630
74,979
27,865
15,832
15,974
19,815
15,480
11,405
10,218
9,112
Station
Tucson
71,036
92,639
139,473
227,529
305,348
272,397
387,406
470,449
616,346
449,675
333,648
347,263
490,827
Source: CRS Presentation of CBP data.

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CRS-40
Appendix VI.
Legal Requirements Waived by DHS for the Construction of the San Diego Border Fence.
Laws Waived
General Requirements
National Environmental Policy Act (NEPA)
Under NEPA, an environmental impact statement must be prepared for “every recommendation or report
16 U.S.C. §§ 4321 et seq.
on proposals for legislation and other major federal actions significantly affecting the quality of the human
environment.” If an agency is uncertain whether an action’s impacts on the environment will be significant,
it usually prepares an environmental assessment (EA). An EA is carried out to clarify issues and determine
the extent of an action’s environmental effects.
Endangered Species Act (ESA)
Section 7 of the ESA mandates that each federal agency consult with the Fish and Wildlife Service (FWS)
16 U.S.C. §§ 1531 et seq.
or National Marine Fishery Services (NMFS), depending on the listed species involved, to ensure that its
actions are “not likely to jeopardize the continued existence of any endangered species or threatened species,
or result in the destruction or adverse modification of” designated critical habitat. Once consulted, FWS or
NMFS must, if listed endangered species might be affected, prepare a biological opinion to determine the
actual impact of the proposed action.
Costal Zone Management Act (CZMA)
The CZMA requires federal agency activity within or outside the coastal zone that affects any land or water
16 U.S.C. §§ 1451 et seq.
use or natural resource of the coastal zone to be carried out in a manner that is consistent to the maximum
extent practicable with the policies of an approved state management program. The federal agency must
submit a consistency determination to the applicable state agency.
Federal Water Pollution Control Act
Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material
(Clean Water Act)
into waters of the United States, including wetlands. Section 404 requires a permit before dredged or fill
33 U.S.C. §§ 1251 et seq.
material may be discharged into waters of the United States, unless the activity is exempt.

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Laws Waived
General Requirements
National Environmental Policy Act (NEPA)
Under NEPA, an environmental impact statement must be prepared for “every recommendation or report
16 U.S.C. §§ 4321 et seq.
on proposals for legislation and other major federal actions significantly affecting the quality of the human
environment.” If an agency is uncertain whether an action’s impacts on the environment will be significant,
it usually prepares an environmental assessment (EA). An EA is carried out to clarify issues and determine
the extent of an action’s environmental effects.
National Historic Preservation Act (NHPA)
In accordance with the NHPA and its implementing regulations, 36 CFR Part 800, sites determined to be
16 U.S.C. §§ 470 et seq.
eligible for inclusion in the National Register of Historic Places must be protected, either through avoidance
or other mitigative action, from direct and indirect impacts.
Migratory Bird Treaty Act (MTBA)
Section 2 of the MTBA sets out the types of prohibited conduct and states: “Unless and except as permitted
16 U.S.C. §§ 703 et seq.
by regulations ... it shall be unlawful at any time, by any means, or in any manner, to pursue, hunt, take,
capture, kill, attempt to do these acts, [or] possess ... any migratory bird, [or] any part, nest, or eggs of any
such bird....”
Clean Air Act (CAA)
The Clean Air Act requires the Environmental Protection Agency to establish minimum national standards
42 U.S.C. §§ 7401 et seq.
for air quality, known as National Ambient Air Quality Standards (NAAQS), and assigns primary
responsibility to the states to assure compliance with the standards. Areas not meeting the standards, referred
to as “nonattainment areas,” are required to implement specified air pollution control measures. Federal
actions located in NAAQS nonattainment areas must comply with the federal general air conformity rule set
forth by the CAA and codified in 40 CFR Part 51. The general conformity rule requires federal agencies to
ensure that actions undertaken in nonattainment or maintenance areas are consistent with the applicable state
plan. The states administer the CAA through a comprehensive permitting program.

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Laws Waived
General Requirements
National Environmental Policy Act (NEPA)
Under NEPA, an environmental impact statement must be prepared for “every recommendation or report
16 U.S.C. §§ 4321 et seq.
on proposals for legislation and other major federal actions significantly affecting the quality of the human
environment.” If an agency is uncertain whether an action’s impacts on the environment will be significant,
it usually prepares an environmental assessment (EA). An EA is carried out to clarify issues and determine
the extent of an action’s environmental effects.
Administrative Procedure Act (APA)
The APA establishes the general procedures that an agency must follow when promulgating a legislative
5 U.S.C. §§ 551 et seq.
rule. An agency must publish a notice of proposed rulemaking in the Federal Register, afford interested
persons an opportunity to participate in the proceeding through the submission of written comments or, at
the discretion of the agency, by oral presentation, and when consideration of the matter is completed,
incorporate in the rules adopted “a concise general statement of their basis and purpose.” A final rule must
be published in the Federal Register “not less than 30 days before its effective date.”

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