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GAO-08-1038R: 

United States Government Accountability Office:
Washington, DC 20548: 

September 4, 2008: 

The Honorable Robert C. Byrd: 
Chairman: 
The Honorable Thad Cochran: 
Ranking Member: 
Subcommittee on Homeland Security: 
Committee on Appropriations: 
United States Senate: 

The Honorable David E. Price: 
Chairman: 
The Honorable Harold Rogers: 
Ranking Member: 
Subcommittee on Homeland Security: 
Committee on Appropriations: 
House of Representatives: 

The Honorable Hillary R. Clinton: 
United States Senate: 

Subject: Various Issues Led to the Termination of the United States- 
Canada Shared Border Management Pilot Project: 

In the years since the 2001 terrorist attacks, balancing the need to 
secure U.S. borders while maintaining the flow of legitimate cross- 
border travel and commerce has taken on an added importance. The United 
States and Canada share a border that extends nearly 4,000 miles, and 
one of the world's largest trading relationships. Each year, 
approximately 70 million travelers and 35 million vehicles cross the 
border from Canada into the United States, according to the Department 
of Homeland Security (DHS). Given the volume of cross-border travel and 
trade between the United States and Canada, border congestion and the 
resulting wait times have a substantial economic impact on both 
nations. Furthermore, according to an analysis by DHS, the heightened 
emphasis on border security following the 2001 terrorist attacks has 
lengthened processing time for travelers and cargo crossing into the 
United States. Recognizing the need to improve both border security and 
border-crossing efficiency, the United States and Canada have 
cooperated on various cross-border management initiatives intended to 
increase the flow of legitimate travel across the border while 
maintaining security. For example, to facilitate the travel of low-risk 
prescreened individuals across the northern border, the United States 
and Canada jointly operate the NEXUS program. The NEXUS program allows 
registered border residents and frequent cross-border travelers 
identified as low-risk individuals access to dedicated lanes and 
expedited processing with minimal inspection. The United States and 
Canada also coordinate on border law enforcement programs such as the 
Integrated Border Enforcement Team Program (IBET), which is a bi- 
national, multi-agency law enforcement initiative that (1) provides, 
where necessary, support to national security investigations associated 
to the Canada/United States border and (2) investigates illegal cross- 
border activities. 

A key collaborative effort to improve security and relieve congestion 
at the ports of entry across the northern border is to move customs and 
immigration inspection activities away from the border--a concept known 
as "land preclearance" or "shared border management." In December 2004, 
the United States and Canada announced that the two governments had 
agreed to move forward with a land preclearance pilot project at the 
Buffalo, New York-Fort Erie, Ontario Peace Bridge and at one other 
border crossing site along the northern border, which had not yet been 
determined. 

The land preclearance pilot project flowed from the 2001 Smart Border 
Declaration and its associated action plan, which was meant to enhance 
the security along the northern border while facilitating information 
sharing and the legitimate flow of people and goods, and securing 
infrastructure. The preclearance pilot at the Peace Bridge would 
involve the relocation of all U.S. border inspection operations for 
both commercial and passenger traffic from the U.S. side of the border 
in Buffalo, New York, to the Canadian side of the border in Fort Erie, 
Ontario. The other preclearance location had not been determined, but 
would have relocated Canadian border inspection functions to the U.S. 
side of the border at a different port of entry. Currently, U.S. 
Customs and Border Protection (CBP)--a component of DHS and the lead 
federal agency in charge of securing our nation's borders--conducts 
inspections of travelers and cargo at all U.S. ports of entry, 
including the Buffalo port of entry at the Peace Bridge. Under the 
preclearance pilot project, the Buffalo port of entry would be moved to 
the Canadian side of the Peace Bridge, and all CBP inspections and 
operations would take place before travelers and cargo entered the 
United States. 

From 2005 to 2007, the United States and Canada were engaged in 
negotiations to implement land preclearance at the Buffalo-Fort Erie 
Peace Bridge ports of entry. However, in April 2007, these negotiations 
were officially terminated by DHS. Section 566 of the 2008 DHS 
Appropriations Act mandates that we conduct a study on DHS's use of 
shared border management to secure the borders of the United States. 
[Footnote 1] In accordance with the mandate and discussions with 
Committee staff, this report addresses the following questions: 

(1) What negotiations have been conducted by the Department of Homeland 
Security regarding the shared border management pilot project? 

(2 What issues led to the termination of shared border management 
negotiations? 

To address these objectives, we visited the Peace Bridge site in April 
2008. We observed the current U.S. inspection facility in Buffalo as 
well as where the shared border management site would have been located 
in Fort Erie, Ontario, Canada. In addition, we analyzed available 
documentation from DHS, CBP, and the Peace Bridge Authority (PBA), a 
public benefit corporation solely responsible for the maintenance and 
upkeep of the Peace Bridge and for building or expanding both Canadian 
and U.S. ports of entry at the Peace Bridge. The documentation included 
a 2004 CBP report on shared border management, a 2005 CBP 
infrastructure and strategic needs assessment of the U.S. port in 
Buffalo, a 2005 DHS analysis of shared border management, DHS 
correspondence to congressional staff on the status of the shared 
border management negotiations, DHS memos to the Canadian government, 
and the PBA's U.S. port of entry expansion plans. We did not seek 
access to documents from the Canadian government because GAO does not 
have a right of access to documents from foreign governments. However, 
we interviewed key officials from both countries who participated in 
the negotiations to gather their views on shared border management at 
the Peace Bridge site. Specifically, we met with officials from the 
Department of State, DHS, and Public Safety Canada (PSC), which was the 
lead Canadian agency involved in shared border management. We also met 
with officials from the Canada Border Services Agency (CBSA), the 
General Manager of the PBA, the Canadian Consul General-Buffalo, and 
the Mayor of Fort Erie. In addition, we met with three local community 
leaders within the Buffalo/Fort Erie area to obtain their views on 
shared border management. We conducted this performance audit from 
January 2008 through September 2008 in accordance with generally 
accepted government auditing standards. Those standards require that we 
plan and perform the audit to obtain sufficient, appropriate evidence 
to provide a reasonable basis for our findings and conclusions based on 
our audit objectives. We believe that the evidence obtained provides a 
reasonable basis for our findings based on our audit objectives. 

Results in Brief: 

From 2005 to 2007, the United States and Canada were engaged in 
negotiations to implement a land preclearance pilot project (also 
referred to as "shared border management"), which would have relocated 
the U.S. border inspection facility from the Buffalo, New York, side of 
the Peace Bridge to the Fort Erie, Ontario, side. All CBP inspections 
and operations would then take place before travelers and cargo entered 
the United States. The Peace Bridge site was selected for the pilot 
because it is one of the busiest commercial crossings between the 
United States and Canada,[Footnote 2] yet the existing border 
infrastructure at the Peace Bridge contributes to a number of security 
and border crossing inefficiencies, according to DHS. Specifically, DHS 
had concluded that the U.S. inspection facility, which is located near 
the center of downtown Buffalo, is outdated, undersized, and lacks the 
modern amenities a port of its size should have to operate efficiently 
and securely. The facility is located on 17 acres of land, as opposed 
to the 80 acres that CBP recommends for a large port of entry. DHS has 
reported that additional inspection space is needed to address these 
infrastructure issues, but there is no easily available land adjacent 
to the facility in Buffalo. On the Canadian side of the Peace Bridge in 
Fort Erie, there are approximately 70 acres of land available on which 
the U.S. inspection facility could have been co-located with Canadian 
inspection facilities. 

In April 2007, DHS officially terminated negotiations with Canada 
because a mutually acceptable framework for United States-Canada shared 
border management could not be reached. Officials from both countries 
agreed that negotiations were conducted in good faith, and the two 
governments were able to reach accommodations on several key issues 
raised during the negotiations, such as the approval of all of the 
authorities Canada sought for its U.S.-based preclearance area, 
[Footnote 3] and the arming of CBP officers at the preclearance site on 
Canadian soil. However, certain issues pertaining to each country's 
sovereignty and the law enforcement authorities of U.S. CBP officers 
operating on Canadian soil could not be resolved. These issues included 
concerns over arrest authority; the right of individuals to withdraw an 
application to enter the United States while at the land preclearance 
site in Canada; mutually agreeable fingerprinting processes; how 
information collected by U.S. officials at the land preclearance site 
would be shared; and concerns that future interpretations of the 
Canadian Charter could adversely impact U.S. authorities at the 
preclearance site.[Footnote 4] 

DHS Entered into Shared Border Management Negotiations to Address Space 
Constraints at the Buffalo Port of Entry: 

From 2005 to 2007, DHS engaged in bi-national negotiations with Canada 
to create the first North American land border preclearance pilot 
project at the Peace Bridge site. The pilot project would have 
relocated the U.S. border inspection facility from Buffalo, New York, 
to Fort Erie, Ontario, Canada. The overarching goal of shared border 
management at the Peace Bridge site was to facilitate cross-border 
coordination and collaboration, while eliminating the need to expand 
the outdated inspection facility in Buffalo and the impact that 
expansion would have on the surrounding community. The current facility 
in Buffalo sits on 17 acres and is confined on three sides by the 
Niagara River, a historic park, and a residential neighborhood, as 
shown in figure 1 and figure 2. 

Figure 1: Overhead View of Buffalo Land Port of Entry: 

[See PDF for image] 

Aerial photograph of the Buffalo Land Port of Entry, with the following 
sites specifically noted: 
Buffalo Land Port of Entry; 
Residential community; 
Park; 
Interstate I-190; 
Niagara River; 
Peace Bridge. 

Source: Peace Bridge Authority. 

[End of figure] 

Figure 2: Photograph: Close-up View of Buffalo Land Port of Entry: 

[See PDF for image] 

Close-up View of Buffalo Land Port of Entry, with the following sites 
specifically noted: 
Buffalo Land Port of Entry; 
Residential community; 
Park; 
Interstate I-190; 
Niagara River; 
Peace Bridge. 

Source: Peace Bridge Authority. 

[End of figure] 

As a result, there is limited real estate available for the port to 
expand. On the Canadian side of the Peace Bridge, however, there is 
more land available on which a U.S. inspection facility could be 
located, as shown in figure 3. 

Figure 3: View of Fort Erie, Ontario, Canada Land Port of Entry: 

[See PDF for image] 

Photographic view of Fort Erie, Ontario, Canada Land Port of Entry, 
with the following sites specifically noted: 
Fort Erie Land Port of Entry; 
Proposed site for U.S. land preclearance facility. 

Source: Peace Bridge Authority. 

[End of figure] 

According to DHS, the existing infrastructure at the Buffalo port of 
entry contributes to a number of border crossing and security 
inefficiencies. In 2005, a DHS cost-benefit analysis of shared border 
management stated that infrastructure constraints and limitations at 
the Buffalo port of entry were major impediments to the smooth flow of 
traffic and trade across the Peace Bridge border crossing from Canada 
to the United States. Specifically, the size of the inspection facility 
site--17 acres--does not allow for a sufficient number of inspection 
lanes to accommodate and process the volume of traffic that crosses the 
bridge daily, according to DHS. 

In 2005, infrastructure improvements were made to the Buffalo 
inspection facility, which local officials told us have eased 
congestion. However, DHS stated that additional capacity--that is, more 
inspection lanes--is still needed. In 2005, the number of lanes for 
primary processing at the facility was increased from 8 car lanes and 4 
commercial vehicles lanes to 10 for cars and 7 for commercial vehicles 
(and 1 dedicated NEXUS lane). Furthermore, the new lanes are "hi/low" 
to allow for flexibility in converting them to commercial lanes for 
trucks ("hi") or passengers ("low"), depending on the specific demand. 
However, DHS stated that the renovations cannot eliminate the 
congestion at the port because additional inspection lanes are still 
needed to accommodate the volume of traffic that enters the port daily. 
Officials from CBP-Buffalo also noted that increased inspection lanes 
are necessary to improve the operation of the port. 

Because the 2005 renovations only included one lane dedicated to NEXUS, 
expanding the port was expected to help maximize other trusted traveler 
programs such as Free and Secure Trade (FAST), according to DHS. FAST 
is an expedited clearance program for known low-risk shipments. DHS 
reported that a dedicated FAST lane would enable greater processing 
efficiency, thereby reducing queue length and wait time. For example, 
lanes dedicated to FAST have average primary processing times of 30 
seconds versus Non-FAST lanes at 2 minutes, according to DHS. 

DHS has also stated that expansion of the Buffalo port is necessary to 
improve enforcement and security operations. According to CBP, the 
current port has inadequate space to handle the number of vehicles 
(both passenger and commercial) referred for secondary inspections, 
which are separate, more thorough screenings of selected travelers and 
cargo. CBP officials told us that if the secondary inspection area is 
full, CBP officers must hold vehicles referred for secondary inspection 
in the primary lane, causing congestion that could be avoided if there 
were sufficient space for secondary inspections. In addition, because 
of the configuration of the port, vehicles referred to secondary 
inspections must cross paths with commercial vehicles exiting the 
primary inspection area, thus creating an obstructive intersection as 
well as safety and security risks. However, because of space 
constraints at the facility, this is the only area that can handle 
secondary inspections, according to CBP. CBP officials also noted that 
the administration building at the port is not sufficient or effective 
for their operations. For example, these officials stated that the 
building has limited space for security and management operations, such 
as secondary inspection processing and agriculture inspections. 

Although DHS recognizes that increasing the size of the Buffalo 
inspection facility is necessary to address these issues, there is 
limited room adjacent to the facility for expansion without adversely 
affecting the surrounding community. According to the PBA--which would 
manage any port expansion project--expanding the port in Buffalo would 
require the acquisition and demolition of approximately 83 adjacent 
residential homes, some of which are historical.[Footnote 5] However, 
on the Canadian side of the Peace Bridge in Fort Erie, there is land 
available that could be used for a U.S. inspection facility without 
requiring the taking of any residential properties. Relocating the U.S. 
inspection facility from Buffalo to Fort Erie under shared border 
management was intended to address the need for improvements and 
expansion of the U.S. inspection facility while minimizing adverse 
impacts on the surrounding community in Buffalo. With sufficient land 
available, the facility was expected to include a total of 25 
commercial and passenger primary inspection lanes and booths, which is 
the standard for a large port of entry, according to CBP officials. In 
addition, DHS stated that shared border management would have also 
enabled informal information sharing between U.S. and Canadian border 
inspection officials because the inspection facilities would be located 
adjacent to each other. According to the PBA, another benefit of shared 
border management was that constructing a new U.S. inspection facility 
in Fort Erie would cost approximately $100 million less and take less 
time than expanding the inspection facility in Buffalo. Local community 
officials we spoke with also noted that relocating the U.S. inspection 
facility to Fort Erie would allow for better accommodation of future 
growth or new security measures that may be added, as more space is 
available for facility expansion. 

The United States and Canada Were Unable to Find an Acceptable 
Framework for Shared Border Management: 

According to U.S. and Canadian officials, shared border management 
negotiations were terminated in April 2007 because an acceptable 
agreement that would satisfy both countries could not be accomplished. 
Specifically, DHS stated that it would not have been able to exercise 
the same law enforcement authorities in Canada that it currently has at 
ports of entry in the United States. Officials from both countries 
agreed that negotiations were conducted in good faith, and the two 
governments were able to reach accommodations on several key issues 
raised during the negotiations. For example, all of the authorities 
sought by Canada for its preclearance area--which would have been 
located on U.S. soil--could be provided with minimal changes to U.S. 
laws, according to DHS. Another issue that was resolved was the arming 
of CBP officers at the pre-clearance site. When negotiations began in 
2005, CBP officers would not have been permitted to carry firearms at 
the pre-clearance site because Canadian border officers did not carry 
firearms. This was a concern for U.S. officials because CBP officers 
carry firearms at U.S. ports of entry. During negotiations, this issue 
was resolved as a result of a change in Canadian government policy that 
permitted the arming of Canadian border officers which allowed for the 
arming of CBP officers, according to Canadian officials. 

Despite agreement on the authorities sought by Canada and the arming of 
CBP officers, officials stated that an acceptable agreement that would 
satisfy both countries' sovereignty could not be accomplished. 
According to DHS, the overarching issue was the subordination of U.S. 
law enforcement personnel and authorities to Canadian law rather than 
U.S. law and the inability to ensure necessary U.S. law enforcement 
authorities under Canada's legal framework. One of the guiding 
principles of shared border management was that the inspecting 
country's operations would be consistent with the constitutional and 
legal frameworks of the host country. However, DHS officials stated 
that for shared border management to meet their requirements, U.S. 
border inspection personnel would require full legal authority, 
comparable to that provided under U.S. law, to replicate the inspection 
and enforcement activities DHS engages in today. DHS officials stated 
that operating under Canadian law would have limited DHS's ability to 
manage and secure the border. The following are key issues that 
surfaced during negotiations: 

* Arrest authority: According to officials from both countries, the 
host country would have sole authority to make arrests at the 
preclearance site, because of the sovereignty of the host government. 
These officials stated that for the majority of possible scenarios, 
negotiators agreed on how these arrests might work. However, U.S. 
officials told us they were concerned that the U.S. government would 
not have the ability to arrest and then prosecute high profile/high 
value terrorists or criminals who might present themselves at the 
border. For example, if a high value target of interest to the United 
States presented himself at the preclearance site, U.S. authorities 
could not arrest him; rather, Canadian authorities would make the 
arrest. The individual would then have to be extradited to the United 
States for prosecution. Canadian officials told us that they offered 
the United States the ability to prioritize cases in order to expedite 
the extradition process in such circumstances. 

* Right of withdrawal: Under Canadian law, individuals have the right 
to withdraw an application to enter Canada at a port of entry, 
according to Canadian and U.S. officials. For example, in a land 
preclearance scenario if an individual begins the inspection process at 
the port of entry and then decides that he or she no longer wants to 
enter into Canada, under Canadian law that person has the right to 
withdraw from inspection. However, U.S. negotiators wanted the ability 
to inspect and fingerprint individuals who present themselves to CBP 
officers for admission into the United States and then request to 
withdraw their application to enter the country. Under U.S. law, CBP 
officers have the discretion to allow an individual they have 
determined to be inadmissible to withdraw an application for admission 
in place of formal removal proceedings, but the individual does not 
have the right to withdraw from inspection and fingerprinting. U.S. 
officials stated that they were strongly opposed to providing a 
guaranteed right to withdraw because doing so could allow individuals 
to "probe for weaknesses" at the preclearance site. According to 
Canadian officials, they proposed an alternative whereby U.S. Customs 
and Border Protection would be permitted to search and question 
individuals who request withdrawal, but not take fingerprints. To 
address this point of disagreement, Canadian officials stated that they 
offered U.S. negotiators a compromise position whereby Canadian border 
authorities would investigate any suspicious person who requests 
withdrawal. However, U.S. officials told us that this approach was not 
satisfactory. Officials from both countries noted that the right of 
withdrawal issue was a major issue during negotiations. 

* Fingerprinting: According to officials involved, both countries 
differed on how and when fingerprints could be taken at the 
preclearance site. Currently, CBP has the authority to fingerprint any 
individuals who present themselves to CBP officers for admission into 
the United States, and CBP wanted to maintain this ability at the 
preclearance site. For example, CBP may fingerprint individuals who 
cross the border to determine if a person may be a wanted felon. 
However, according to Canadian officials, in a land preclearance 
scenario, fingerprints could not be taken unless the individual 
volunteers or has been charged with a crime. According to Canadian 
officials, they proposed that CBP would have the ability to take 
fingerprints only if certain criteria had been met. According to 
officials involved in the negotiations, this was not a viable 
alternative to U.S. negotiators, and this issue was not resolved. 

* Information sharing: According to officials from both countries, 
there was disagreement over how information collected by U.S officials 
at the land preclearance site could be shared. U.S. officials told us 
they wanted to maintain the ability to share information collected at 
the preclearance site with appropriate U.S. law enforcement agencies, 
which they can do under U.S. law. However, Canadian officials told us 
that the ability of U.S. authorities to share information collected in 
Canada would be guided by Canadian laws. As a result, under Canadian 
law, DHS would not be permitted to share all information collected at 
the preclearance site with U.S. law enforcement agencies, according to 
DHS officials. 

* Canadian Charter: According to DHS officials involved in the 
negotiations, future interpretations of the Canadian Charter could 
adversely impact U.S. authorities at the preclearance site. In 
addition, DHS officials stated that the Canadian Charter, as it has 
been interpreted by Canadian courts, would limit the use of certain law 
enforcement tools available to CBP. For example, under U.S. law, CBP 
officers can search individuals, conveyances, and cargo at the border 
without a warrant or probable cause. However, according to Canadian 
officials, under Canadian law, reasonable grounds are needed to conduct 
searches. According to DHS, these limitations would make it difficult 
for CBP officers to fully carry out their duties. 

Officials from both countries stated that these issues could not be 
resolved through negotiations because operating a U.S. port of entry in 
Canada under land pre-clearance/shared border management would have 
required the United States to abide by Canadian law--which U.S. 
officials stated would have limited the ability of U.S. law enforcement 
personnel to secure the border. DHS wanted to operate the shared border 
management facility according to the same standards as all other U.S. 
ports of entry, but to operate in Canada would have meant that those 
standards could not have been achieved, according to officials from 
both governments. 

According to officials from both countries, the best way to address 
U.S. concerns related to having a U.S. inspection facility located on 
Canadian soil would be to conduct what they termed a "land swap." Under 
a land swap, the United States would be granted land in Canada to place 
the inspection facility and Canada would be granted reciprocal land in 
the United States for placement of its inspection facility. Since the 
U.S. inspection facility would therefore be technically located on U.S. 
soil, CBP would be able to conduct its inspections with full U.S. legal 
authority and could operate the port of entry according to the same 
standards as all other U.S. ports. However, both U.S. and Canadian 
officials told us a land swap was never seriously pursued as an option 
because of the legal and political issues involved. Therefore, 
officials involved in the negotiations did not believe this was a 
realistic possibility. 

In June 2008, Canadian and U.S. officials told us there are currently 
no plans to re-open negotiations regarding shared border management at 
the Peace Bridge site. With the conclusion of the negotiations, the 
PBA, with the support of DHS, is moving forward with its plans to 
improve and expand the U.S. inspection facility in Buffalo. According 
to the PBA, the timeline for beginning construction on the new facility 
has not been finalized. 

We provided a draft of the report to DHS for its review and comment. 
CBP provided technical comments, which we incorporated as appropriate. 
We also met with relevant officials within the Canadian Government who 
confirmed the accuracy of the report and provided technical comments, 
which we incorporated as appropriate. 

We are sending copies of this report to the Secretary of Homeland 
Security. We will also make copies available to others upon request. In 
addition, the report will be available at no charge on GAO's Web site 
at [hyperlink, http://www.gao.gov]. 

If you or your staff have any questions concerning this report, please 
contact me at (202) 512-8777 or by e-mail at Stanar@gao.gov. Contact 
points for our Office of Congressional Relations and Public Affairs may 
be found on the last page of this report. GAO staff who made key 
contributions to this report are listed in the enclosure. 

Signed by: 

Richard M. Stana: 
Director, Homeland Security and Justice Issues: 

Enclosure: 

[End of section] 

Enclosure: 

GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Richard M. Stana (202) 512-8777 or stanar@gao.gov: 

Staff Acknowledgments: 

In addition to the contact named above, Mike Dino, Assistant Director, 
and Adam Hoffman, Analyst-in-Charge, managed this assignment. Bintou 
Njie, Sally Williamson, Frances Cook, and Michele Fejfar made 
significant contributions to the work. 

[End of section] 

Footnotes: 

[1] Department of Homeland Security Appropriations Act, 2008, Pub. L. 
No. 110-161,  566, 121 Stat. 2042, 2092 (2007). 

[2] According to the PBA, approximately $700 million in goods crosses 
the Peace Bridge weekly, making it the third busiest crossing by truck 
volume. In 2007, about 1.3 million trucks crossed the Peace Bridge 
accounting for 16 percent of all Great Lakes border crossings. 

[3] The site for the Canadian preclearance facility had not been 
finalized. 

[4] The Canadian Charter of Rights and Freedoms defines the rights and 
freedoms guaranteed to Canadians. 

[5] The PBA was granted limited eminent domain power by New York State 
in 2004 to acquire property surrounding the Buffalo inspection 
facility. The PBA stated that because of the historic significance of 
Front Park (which is adjacent to the Buffalo inspection facility), 
expanding the inspection facility into the park was not a viable 
option. 

[End of section] 

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