Southwest Border Security: Actions Needed to Enhance CBP's Maintenance of Roads Used for Its Operations

To secure the southwest border between ports of entry, Border Patrol uses approximately 5,200 miles of roads, most of which are owned by other entities, both private and public. CBP estimates spending $12.5 million in fiscal year 2016 to maintain and repair roads Border Patrol uses for its operations, including roads CBP does not own.

GAO was asked to review Border Patrol's use and maintenance of roads for its border security operations. This report examines the extent to which (1) CBP has processes and authorities to access and maintain roads for its security operations and (2) CBP's operations are affected by its use of public roads it cannot maintain, and options CBP could consider to address any needed maintenance. GAO selected three southwest border sectors to visit based on the sectors' total mileage of non-owned roads and number of apprehensions of illegal border crossers. GAO interviewed officials from Border Patrol, and from selected federal, state, local, tribal, and private and community organizations. The information collected from these entities is not generalizable, but provides valuable insights.

U.S. Border Patrol, within the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP), generally has access to public roads and has certain processes and authorities to use other federal, state, local, tribal, and private owned roads for its operations. CBP may enter into arrangements or agreements to address maintenance of certain federal, state, local, and private roads, but CBP has not consistently documented these arrangements, or shared them with all relevant Border Patrol sector officials. This could hinder maintenance efforts and, therefore, Border Patrol's access to the roads. Six of the nine southwest Border Patrol sectors reported that they do not document all road maintenance arrangements and agreements. Developing a policy and guidance for documenting maintenance arrangements and agreements, as needed, could help all sectors more consistently work with landowners to address road maintenance. CBP has two categories for the roads it maintains: (1) roads that CBP owns and has a right to maintain (owned operational roads) and (2) roads that CBP does not own, but may maintain through a license or permit (non-owned operational roads). Border Patrol has established a process for prioritizing maintenance of owned operational roads, but it has not clearly documented the process and criteria for non-owned operational roads, or shared this information with sector officials. Moreover, no sector official GAO spoke with reported being aware of the process and criteria. By clearly documenting and communicating the process and criteria it uses to prioritize non-owned operational roads, Border Patrol could enable sectors to more adequately plan for and better anticipate funding to meet road maintenance needs.

Border Patrol sector officials reported negative effects from using public roads in poor condition that they cannot maintain, such as limited road access and poor relations with local governments and border communities that attribute the poor road conditions to Border Patrol's regular use. However, the full extent of these effects is unknown due to lack of data on Border Patrol's use of non-owned roads. While CBP officials discussed options for addressing maintenance of non-federal public roads, including a specific appropriation or a grant program, it has not assessed the feasibility of these or other options. Assessing the feasibility of options, including a review of data needed to show Border Patrol's reliance on non-owned roads, including public roads, could lead to a possible solution for enhancing Border Patrol's operations and its community relationships.

GAO recommends that CBP develop policy and guidance for documenting arrangements with landowners, as needed, and share the arrangements with its sectors; document and communicate the process and criteria for prioritizing funding of non-owned operational roads; and assess the feasibility of options, including data needs, for addressing the maintenance of non-federal public roads. DHS concurred with the recommendations.

The U.S. Border Patrol (Border Patrol), within the Department of  Homeland Security’s (DHS) U.S. Customs and Border Protection (CBP),  is responsible for securing U.S. borders between ports of entry to prevent  acts of terrorism and the unlawful movement of people, illegal drugs, and  other contraband across U.S. borders. Border Patrol’s 2012–2016  Strategic Plan, its most recent strategic plan, calls for rapid response—an  immediate planning or action taken to mitigate emerging threats—as one  of three core pillars of a risk-based approach for securing the border.  Border Patrol agents must travel each day on roads from their respective  stations to border areas to mitigate threats such as individuals trying to  cross the border illegally. For example, CBP reported that on average,  U.S. Border Patrol agents apprehended 1,140 individuals along the  nation’s borders on a typical day in fiscal year 2016, and encountered  12,842 criminal aliens throughout the fiscal year.

To conduct its security operations along the southwest border, Border  Patrol agents use roads owned by CBP, as well as those owned by other  federal agencies, states, counties, localities, and private citizens. CBP  classifies the roads it uses for its operations differently, depending on the  extent of its possessory or ownership interest. Owned-operational roads  are those that CBP owns, is leasing, or for which CBP has signed an  agreement providing it with an irrevocable interest. Non-owned  operational roads are those roads that CBP may maintain through a  license or permit, though the landowner may revoke the license or permit  at any time. As classified by CBP, both categories of roads may be  owned by federal, state, local, and private entities. CBP estimates that it  uses approximately 5,200 miles of roads to conduct its operations, the  majority of which are not owned by CBP, but by other entities such as  other federal agencies and private landowners. In particular, of the  approximately 5,200 miles of roads used by Border Patrol to conduct its  operations, 71 percent are considered non-owned operational. The  remaining 29 percent CBP considers owned-operational. State and local  public roads—roads under the jurisdiction of and maintained by a public  authority and open to public travel—are not considered owned or non- owned operational roads, and therefore, are not included in the  approximately 5,200 miles by CBP. Maintenance of these public roads is  the responsibility of the state and local entities that have jurisdiction over  them; however, Border Patrol may be the predominant user of certain of  these public roads. CBP estimates spending approximately $12.5 million  on maintenance and repair of owned and non-owned operational roads in  fiscal year 2016.

Our prior work on private property damage and on border fencing and  the deployment of tactical infrastructure (TI) highlighted some of the  challenges Border Patrol faces in using private land and addressing  maintenance and repair of non-owned operational roads along the  southwest border. Specifically, in April 2015, we found that landowners  may file an administrative tort claim to seek compensation for private road  and land damage allegedly caused by the Border Patrol; however, a  landowner may only be eligible for compensation if certain criteria are  satisfied, including that the damage is caused by an agent acting within  the scope of his or her employment. In February 2017 we reported that,  according to Border Patrol sector officials, the time it may take to secure  an agreement providing for road maintenance, and having to negotiate  with multiple landowners where portions of a single road have different  possessors, may hinder CBP’s ability to address the maintenance of  these roads in a timely manner. We also reported that, according to CBP  officials in one sector, maintenance prioritization of certain roads deemed  critical to border security operations can result in the degradation of roads  considered noncritical to border security operations, and that the use of  degraded roads increases the wear and tear on patrol vehicles, and the  cost of vehicle maintenance. In addition, we found that Border Patrol had  not developed written guidance for its newly implemented Requirements  Management Process, intended to facilitate planning for funding and  deployment of TI assets, including roads. As a result, we recommended  that Border Patrol develop and implement written guidance to include  roles and responsibilities for its requirements process for identifying,  funding, and deploying TI assets. CBP concurred with our  recommendation and has actions underway to address it.

To better understand how Border Patrol’s use and ability to maintain  roads along the southwest border may affect its operations, as well as  any processes and agreements in place to use and maintain roads owned  by other federal, state, local, tribal, and private landowners, you  requested that we review Border Patrol’s use of roads to conduct its  security operations, and the extent to which Border Patrol is addressing  maintenance of these roads. This report examines the extent to which (1)  CBP has authorities and processes, including landowner agreements, to  facilitate its access to, and maintenance of, roads for its border security  operations and (2) CBP’s operations are affected by its use of public  roads it cannot maintain, and the options that could be considered for  addressing any needed maintenance of these roads. We also provide  information in appendix I on selected federal agencies’ authorities,  policies, and procedures for addressing maintenance of the roads these  agencies use for their operations but do not own.

To determine the authorities and processes CBP has for using and  maintaining roads for its operations, we reviewed relevant legislation  related to CBP’s access to and ability to maintain roads owned by other  federal agencies and private landowners, as well as prior Comptroller  General Opinions on public road improvement. We also analyzed CBP  road improvement policy documents, such as the 2015 “New Owned and  Non-Owned Operational Requirements in the Comprehensive Tactical  Infrastructure Maintenance and Repair (CTIMR) Contracts” (Roads Policy  Memo). In addition, we interviewed headquarters officials with CBP Office  of Chief Counsel (OCC), Facilities Management and Engineering Office  (FM&E), and Border Patrol’s Operational Requirements Management  Division (ORMD), as well as officials from each of Border Patrol’s nine  southwest border sectors, to determine CBP’s authorities and policies for  using and maintaining roads owned by other federal, state, local, tribal,  and private entities. To determine the type and status of the  arrangements Border Patrol has for addressing non-owned operational  road maintenance, in January and February 2017 we visited three of the  nine Border Patrol sectors where, in addition to interviewing Border Patrol  officials, we interviewed officials from other federal agencies, the Texas  and Arizona Departments of Transportation, and local and tribal  governments, as well as selected private landowners along the southwest  border. The private landowners we selected were identified by Border  Patrol and local agency officials, as well as by organizations representing  landowners along the southwest border, as owners of roads Border Patrol  uses for its operations. Information we obtained from the Texas and  Arizona Departments of Transportation, local and tribal government  officials, and private landowners cannot be generalized, but provided us  with perspectives on CBP’s authority and processes for addressing  maintenance of public and private roads. We also reviewed a  nonrepresentative sample of agreements that Border Patrol has with  other federal, state, local, tribal, and private entities for use and  maintenance of their roads along the southwest border. We selected the  sectors we visited based on factors such as the sectors’ total mileage of  non-CBP owned roads and the number of apprehensions of illegal border  crossers at each sector. We assessed CBP’s efforts to document and  communicate agreements, as well as its processes and criteria for  prioritizing funding to address maintenance of the roads it uses for its  operations, against criteria in Standards for Internal Control in the Federal  Government.

To determine the effects, if any, of CBP’s use of public roads, we  interviewed headquarters officials with CBP FM&E and Border Patrol  ORMD, as well as field officials from all nine Border Patrol southwest  border sectors. At the three southwest border sectors we visited, we also  interviewed federal, state, county, city, tribal, and private landowners, and  observed the condition of some of the public roads Border Patrol uses but  cannot maintain. To determine options, if any, that could be considered to  address Border Patrol’s maintenance of the public roads it is unable to  maintain, we reviewed relevant legislation and interviewed CBP FM&E  and OCC officials to determine the extent of CBP’s authority and  appropriation for addressing maintenance of such roads. During our  interviews with these CBP officials, as well as with Border Patrol ORMD  and southwest border sector officials, we obtained perspectives on  actions CBP could take to address its inability to maintain public roads.  At the three sectors we visited along the southwest border, we also  interviewed federal and local officials who identified available  mechanisms, including sources of funding, they have used or that could  be used to address maintenance of public roads Border Patrol uses.

We also interviewed CBP and Border Patrol officials responsible for  maintaining road maintenance data systems such as the Enterprise  Geospatial Information Services (eGIS) and Facility and Infrastructure  Tracking Tool (FITT), to determine whether data were available for  establishing the extent of Border Patrol’s use of non-owned roads. Border  Patrol sector officials also provided us examples of nonfederal public  roads in poor condition that Border Patrol southwest border sectors use  but are unable to maintain and information on how Border Patrol’s  operations are impacted by use of the roads. Information we obtained on  the roads used by Border Patrol agents along the southwest border  cannot be generalized, but provided us with insights into how Border  Patrol agents’ ability to patrol certain areas of the southwest border may  be hindered by poor road conditions. We examined CBP and Border  Patrol’s ongoing and planned initiatives to collect vehicle and agent  location data that could be used to establish the extent of Border Patrol’s  use of non-owned roads. We assessed the extent to which CBP has  evaluated options for addressing maintenance of the roads it uses but is  legally unable to maintain against leading project management practices  identified by the Project Management Institute.

To determine the authorities, appropriations, policies, and practices other  federal agencies have for addressing maintenance of non-owned roads  and their applicability to CBP described in appendix I, we interviewed  officials from the Department of Defense, the Department of the Interior  (DOI), and the U.S. Department of Agriculture. We identified and selected  these agencies because, according to officials, they routinely use roads  they do not own for conducting their operations.

We conducted this performance audit from September 2016 to October  2017 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  and conclusions based on our audit objectives.

CBP and Border Patrol Operations along the Southwest Border

Securing U.S. borders is the responsibility of DHS, in collaboration with  other federal, state, local, and tribal entities. CBP, a component within  DHS, is the lead agency for U.S. border security, and one of its top  priorities is preventing, detecting, and apprehending illegal border  crossers, and interdicting other illicit cross-border activity. The U.S.  Border Patrol is the CBP component charged with ensuring security along  border areas between ports of entry. To secure the nearly 2,000-mile  southwest border, Border Patrol divides responsibility for border security  operations geographically among nine sectors, as shown in figure 1.  Within each sector, Border Patrol agents at stations are responsible for  patrolling and responding to emerging threats within defined geographic  areas, using CBP-owned roads and a network of roads owned by other  federal, state, local, tribal, and private landowners. Agents are to identify  and report any needed maintenance and repair requirements of the roads  they use to patrol and respond to threats, according to CBP officials.

Within CBP, the Office of Facilities and Asset Management and Border  Patrol each have offices that oversee the maintenance and repair of  roads and other TI that Border Patrol agents need to conduct operations.  Office of Facilities and Asset Management’s FM&E oversees the  necessary environmental and real estate plans, maintenance and repair  contracts, and funding distribution. Within Border Patrol, ORMD oversees  operational planning by collecting and managing maintenance  requirements identified by sectors. ORMD also collaborates with FM&E in  determining the amount of funding and resources each sector needs to  address identified TI maintenance needs. Within ORMD, the Director of TI  and support staff oversee all TI requirements and programs across all  Border Patrol sectors.

Southwest Border Road Ownership and Type

The area along the southwest border is composed of federal, state, local,  tribal, and private lands. Federal and tribal lands make up 632 miles, or  approximately 33 percent, of the nearly 2,000 total border miles. State,  local, and private lands constitute the remaining 67 percent of the border.

Each of these entities, including CBP, owns and maintains roads that  Border Patrol may use to patrol or to access TI along the border;  however, Border Patrol’s ability to use these roads depends on various  factors, including its statutory authorities. Border Patrol may access public  roads—i.e., roads under the jurisdiction of a public authority such as a  federal, state, local, or tribal entity, and open to public travel—to the same  extent as other users. CBP may seek permission of the owner in order  to use nonpublic roads (roads owned by a public entity but not open to  the public) or private roads (roads owned by a private entity) located  beyond 25 miles of the border. In addition, Border Patrol generally  makes arrangements with landowners in order to address maintenance of  their roads.

As mentioned previously, owned operational roads are those roads that  CBP owns, leases, or has an irrevocable interest in, and therefore has a  right to maintain. Non-owned operational roads are roads that CBP may  maintain through a license or permit, though the landowner may revoke  the license or permit at any time. Therefore, CBP is not obligated to  maintain these non-owned operational roads; any work to maintain and  repair these roads is based on Border Patrol’s operational requirements.  Certain authorities allow federal agencies to enter into agreements with  other federal agencies for various goods and services. Under such  authorities, CBP may be able to use its appropriated funds to contribute  to the maintenance of public roads owned by other federal agencies, but  not to the maintenance of public roads owned by state and local entities.

State and local public roads, which CBP is under no obligation to maintain  regardless of use, are not considered owned or non-owned operational  roads, and therefore, are not included in the approximately 5,200 miles of  roads used by CBP.

Figure 2 shows an example of a CBP owned operational road providing  direct access to CBP fencing, and figure 3 shows an example of a road  owned by U.S. Fish and Wildlife Service and used by Border Patrol for  patrolling.

CBP received $25 million in fiscal year 2016 for necessary repairs to  border fencing and border roads. For fiscal year 2017, CBP received an  additional appropriation for operations and support, of which $22.4 million  is for border road maintenance. CBP uses Comprehensive Tactical  Infrastructure Maintenance and Repair (CTIMR) contracts to address  maintenance of TI assets along the southwest border, including owned  and non-owned operational roads. CTIMR contracts provide a  mechanism for CBP to address both routine and urgent maintenance and  repair of the roads Border Patrol uses for its operations by providing  funds to contractors who perform the required maintenance. Routine  maintenance and repair include work that is required due to normal wear  and tear, deterioration due to age, and other damage not caused by  severe weather events or suspected intentional sabotage. Urgent repair  requirements are typically the result of severe weather events or  suspected intentional damage.

For the purposes of maintenance requirements and funding distribution,  CBP divides the nine southwest border sectors into four work areas, with  each work area operating under a separate CTIMR contract. The four  work areas consist of the following sector groupings: (1) San Diego and  El Centro sectors; (2) Yuma and Tucson sectors; (3) El Paso and Big  Bend sectors; and (4) Del Rio, Laredo, and Rio Grande Valley sectors.  CBP’s FM&E determines the contract amount for each work area over a  5-year contract period. Table 1 provides a breakdown of the cost incurred  by CBP for road maintenance and repair by work area and sector for  fiscal year 2016.

CBP Has Various Authorities and Arrangements for Using and Maintaining Roads, but Documentation and Communication of Its Processes and Criteria for Distributing Maintenance Funding Are Limited

CBP Has Authorities and Arrangements for Using and Maintaining Roads

Border Patrol generally has access to public roads to the same extent as  other users, and has certain authorities to use other federal, state, local,  tribal, and private owned roads. According to local, tribal, and Border  Patrol sector officials, CBP uses and is sometimes the primary user of  roads owned by states, counties, cities, and localities, but does not have  a specific appropriation to engage in public improvements, including the  maintenance and repair of such roads it uses for border security  operations.

Public roads. Border Patrol has access to public roads—those under the  jurisdiction of and maintained by a public authority (federal, state, local, or  tribal entity) and open to public travel—to the same extent as other users  of such public routes. While Border Patrol has authority to use such  public roads for border security operations, CBP is statutorily prohibited  from maintaining and repairing nonfederal (state, local, county, and city)  public roads because performing such work without a specific  appropriation could violate the Anti-Deficiency Act and 41 U.S.C. § 6303  which prohibits the U.S. government from making or authorizing an  expenditure exceeding available appropriated funds. To ensure access  to TI in proximity to the border by way of lands that are owned by public  entities but not open to public use, Border Patrol uses various different  arrangements, including easements, special use permits, and multiple  use agreements, to gain access to such property. For example, Border  Patrol obtained various easements from a city located at the border,  granting it access to strategic locations to conduct surveillance of high  illegal traffic areas, according to the city’s public works director.

Other federal agency roads. CBP may obtain a special use permit or  enter into interagency agreements with other federal agencies to address  maintenance and repair of federal roads and land. CBP may also enter  into informal cooperative and undocumented arrangements with other  federal agencies to access certain roads the agencies use for conducting  their operations but that are not open to the public (e.g., administrative  roads). For example, Bureau of Land Management (BLM) officials in  Tucson, Arizona, told us that Border Patrol uses BLM administrative  roads that are open to other law enforcement agencies in the area, but  not to the public. According to these BLM officials, maintenance  agreements or reimbursements are not needed from Border Patrol or the  other agencies that use the roads. Further, Border Patrol has access to  all federal lands, as necessary, under a January 2017 Executive Order  that requires the Secretary of Homeland Security, the Secretary of the  Interior, and other relevant agency heads to grant Border Patrol, as well  as authorized state and local officers, access to such lands.

Private roads. Border Patrol has statutory authority to, without a warrant,  access private lands (i.e., privately owned or otherwise nonpublic roads  and land), but not dwellings, within 25 miles of the international border to  prevent illegal entry of foreign nationals. According to CBP FM&E  officials, no further real estate action is required to access these roads;  however, this authority does not permit CBP to maintain and repair such  private roads. Access to private roads and land beyond 25 miles from  the border generally requires a warrant or permission of the landowner,  and all maintenance would be provided for in an arrangement with the  landowner. CBP may seek to establish mutually beneficial relationships,  including through various arrangements with private landowners, to use,  and as appropriate, maintain and repair certain private roads based on  Border Patrol’s operational requirements, such as to enhance Border  Patrol’s ability to perform operations. These arrangements include, but are not limited to licenses and permits, which are written and revocable  consent from landowners for CBP’s specified use of their land. CBP  may seek to maintain and repair the privately owned roads leading to TI  located in proximity to the border. To do so, CBP secures land rights to  maintain and repair these access roads through fee interests, easements,  and leases.

Border Patrol leverages various mechanisms to ensure access to the  privately owned roads it needs to conduct its operations on the southwest  border. For example, Border Patrol officials told us that they cultivate and  maintain good relations with private landowners to ensure access to  roads.

CBP Does Not Consistently Document and Communicate Its Arrangements with Landowners

CBP Uses CTIMR Contracts to Address Road Maintenance

CBP addresses maintenance of roads, as well as all other TI it uses for its  operations, through CTIMR contracts and agreements. CTIMR road  maintenance involves a collaborative process that uses a prioritization  scheme which, according to CBP’s 2015 Roads Policy Memo, ensures  that in an environment of limited funding, CBP would fund maintenance  and repair of owned operational roads first, followed by non-owned  operational roads, where permitted. According to CBP officials, this  process entails the following three steps:

Step 1: Border Patrol stations identify road maintenance requirements  on an ongoing basis and provide those requirements to sector and  headquarters leadership for approval.

Step 2: Once approved, sector road maintenance requirements are  forwarded to FM&E for real estate and environmental clearance.

Step 3: Environmentally cleared sector road maintenance  requirements are prioritized and added to quarterly CTIMR  maintenance work plans as the plans are developed.

According to CBP FM&E officials, in order for sectors’ requested road  maintenance to occur, three criteria must be met. First, CBP must obtain  an agreement from the landowner (for non-owned operational roads)  authorizing maintenance of the road. Second, the road must undergo an  environmental analysis and obtain environmental clearance. Third,  appropriated funds must be available for the maintenance. If all three  criteria are met, CBP places the road requirement in its Work  Management System—a database CBP uses to track and oversee all TI  maintenance and repair work for its work plans, which are prioritized and  executed every 90 days. Sector officials are responsible for reviewing  each work plan and prioritizing maintenance and repair that are critical to  border security operations, and communicating any updates to CBP  officials for execution. Road requirements that are not funded in a given  period are pushed to the next work plan, according to CBP officials.

CBP Has Not Consistently Documented Arrangements with Landowners or Communicated Such Arrangements with Border Patrol Sectors

CBP enters into various arrangements with federal, state, and local  agencies and with some private landowners to maintain the roads it uses  for its operations; however, it has not consistently documented its  arrangements with these landowners or shared the arrangements it has  documented with Border Patrol sector officials. Officials of six of the nine  southwest Border Patrol sectors we contacted indicated that they do not  document all arrangements for private road maintenance, while officials of  one sector said they were unsure if all such arrangements were  documented.

Federal, state, and local agencies. CBP has documented arrangements  with federal, state, and local agencies, including, but not limited to,  interagency agreements and memorandums of understanding (MOU) with  other federal agencies, and easements with state and local agencies. For  example, CBP has an agreement with the U.S. Forest Service, through  which it allocates $1.5 million to the U.S. Forest Service annually to  maintain roads the Border Patrol Tucson sector uses in the Coronado  National Forest. Tucson sector officials said that providing the funding to  the U.S. Forest Service to do the actual road maintenance was less  expensive than paying a private contractor to do the maintenance. This  process is also more efficient because U.S. Forest Service employees  are more familiar with the roads and forest area, according to sector  officials. CBP also entered into an MOU with the National Park Service in  2012 that authorizes CBP to maintain and repair certain roads that Border  Patrol uses for its operations in the Organ Pipe Cactus National  Monument in southern Arizona.

Although CBP has arrangements with some landowners to address road  maintenance, it has not consistently documented arrangements with all  such owners. Further, CBP has not shared documented arrangements  with all relevant Border Patrol sector officials, including officials  responsible for prioritizing sector road maintenance funding needs, which  could hinder efforts to maintain roads. Officials of six of the nine  southwest Border Patrol sectors we contacted indicated that they do not  document all arrangements for private road maintenance while officials of  one sector said they were unsure if all such arrangements were  documented. Tucson sector officials told us that their sector works with  other federal, state, local, tribal, and private landowners to address road  maintenance; however, such maintenance is not always addressed  through written arrangements. For example, the sector has documented  agreements with the Arizona Department of Transportation for  maintenance of 11 checkpoints Border Patrol has established on its  roads. Conversely, it does not have a written agreement with the  Tohono O’odham Nation, a federally recognized tribe, whose reservation  straddles the border. Rather, sector officials have had informal  arrangements with the tribe and the Bureau of Indian Affairs (BIA) for  several years on maintenance of several of the tribe’s roads, including  two frontage roads which BIA manages and Border Patrol uses routinely  for its operations.

Border Patrol sector officials cited various reasons for using and  addressing non-owned operational road maintenance without  documenting arrangements with the road owners. For instance, officials  noted that maintaining roads can facilitate good relations with landowners  thereby enabling Border Patrol’s access to roads. Officials also explained  that keeping roads in good working condition, even in the absence of a  documented agreement, is mutually beneficial to both Border Patrol and  landowners. For example, according to Yuma sector officials, the sector  addresses maintenance of the Marine Corps roads it uses for its  operations although it does not have a documented agreement for  maintenance. Yuma sector officials said that CBP FM&E drafted an MOU  between CBP and the Marine Corps in 2013 that would allow Border  Patrol maintenance personnel (or personnel contracted by Border Patrol)  to access border roads for maintenance; however, the Department of  Navy, on behalf of the Marine Corps, has not yet signed the MOU. In the  absence of a written agreement, a CBP employee at Yuma sector  performs maintenance on Marine Corps roads, at Marine Corps’ request,  because according to officials, Border Patrol agents benefit from  accessible roads.

In some instances, CBP has documented arrangements with federal  agencies, but has not shared those arrangements with all relevant Border  Patrol sector officials, particularly those responsible for planning for and  prioritizing sector road maintenance needs. For example, road  maintenance planning officials at Big Bend sector told us that they do not  have a documented agreement with the Big Bend National Park in  western Texas to address maintenance and do not contribute toward  maintenance of any of the park’s roads which Border Patrol uses  routinely. They added that FM&E is working on a current project to  determine how CBP and the National Park Service could share  maintenance costs for their joint use of the park’s roads—an agreement  that could extend to other parks in other sectors. However, CBP later  provided us with a copy of an agreement it entered into with Big Bend  National Park in July 2016. The agreement was effective from October  2016 through September 2017; however, Big Bend sector officials were  not aware of this agreement at the time of our March 2017 meeting with  them. Similarly, Yuma sector officials said that Border Patrol also helps  maintain a DOI-owned road the sector uses routinely for its operations  without a written agreement, because it is mutually beneficial and helps  maintain good relations with DOI. However, CBP officials later provided  us with a copy of an agreement with BLM, a component of DOI, which  addresses maintenance of the BLM roads in question. The agreement,  which was effective from September 2016 through September 2017, was  executed in August 2016, 6 months prior to our March 2017 interview with  Yuma officials; however, sector officials were not aware of the agreement  at the time of our interview.

In addition to CBP not consistently sharing documented arrangements  with relevant Border Patrol sector officials, we identified instances where  written maintenance agreements between CBP and the federal  landowners had expired, despite Border Patrol’s continued need to  access the roads covered by the expired agreements. For example, the  U.S. International Boundary and Water Commission entered into a  maintenance agreement with CBP in December 2005 for the resurfacing  of approximately 100 miles of a levee road the Rio Grande Valley sector  uses along the Rio Grande River. While this agreement expired in  September 2015, the commission was allowing Rio Grande Valley sector  officials to continue using the levee road at the time of our January 2017  visit to the sector, while a new MOU was being negotiated. International  Boundary and Water Commission officials characterized the  undocumented agreement Border Patrol was operating under as a verbal  “gentleman’s agreement.” Similarly, El Centro sector officials told us that  the sector does not have a documented agreement with BLM for use and  maintenance of certain BLM roads and land. According to sector officials,  agents work to maintain good relations with BLM even though Border  Patrol can and does leverage its statutory authority and law enforcement  mission to access BLM roads and land. CBP officials later provided us  with a copy of an agreement with BLM that addresses maintenance of  BLM roads in El Centro sector; however, the agreement had expired in  December 2016, 3 months prior to our meeting with El Centro sector  officials.

Private landowners. CBP has obtained licenses from some, but not all,  of the private owners whose roads the agency maintains. Also, it has not  consistently shared the documented road maintenance arrangements it  has with private landowners with Border Patrol sector officials. For  example, CBP obtained a revocable license in July 2015 from a private  gravel company that allows the Laredo Border Patrol sector to maintain  and repair roadways on the company’s property for use in patrolling the  border area. Laredo sector officials stated that sometimes they receive  pushback from landowners regarding Border Patrol accessing their land,  but in general, most landowners want Border Patrol on their property.  Conversely, El Centro and El Paso sector officials reported that they do  not have documented license agreements with private landowners  regarding the maintenance of privately owned roads. In the El Centro  sector, officials stated that they typically have verbal and not documented  agreements with private landowners for maintenance. These officials  stated, however, that documenting agreements would provide a clearer  understanding of how privately owned roads are to be maintained.

A number of factors contribute to the lack of documented road  maintenance arrangements between Border Patrol and private  landowners. First, some landowners choose not to pursue a license  agreement with Border Patrol to address maintenance of their roads as a  condition of access to the roads because they support Border Patrol’s  mission and need the security provided by the agency. In these  instances, landowners have no concerns about Border Patrol agents  accessing their land without a documented agreement. For example, five  private landowners we met with individually, as well as others we met with  in three separate community group meetings, told us they did not have a  documented license agreement with Border Patrol; but some of them  nonetheless allow Border Patrol to continue using their roads without  addressing maintenance. However, one private landowner we interviewed  told us that regardless of whether a ranch owner wants Border Patrol  agents on his or her property for the security they provide, the additional  money the owner must spend to maintain his or her roads used by Border  Patrol is a financial burden. Second, some landowners are not aware that  Border Patrol can enter into arrangements with them to address  maintenance of their roads. For example, two of the five landowners who  lack documented license agreements with Border Patrol told us this.  Third, some landowners are interested in maintenance agreements but  have not received them. For example, three landowners told us they had  requested an agreement to address maintenance of their roads; however,  Border Patrol had not worked with them on such an agreement. Two of  these landowners said they generally incur an additional maintenance  cost due to Border Patrol’s regular use and lack of maintenance of their  roads. For example, on our site visit to the Tucson sector, one landowner  told us that Border Patrol uses approximately 37 miles of road on his  ranch without a written license agreement to maintain the roads, although  he had requested one from Border Patrol. He estimated that he spends  approximately $3,000 per mile annually to repair the roads that Border Patrol predominantly uses. He, as well as two other landowners we  interviewed, told us they have considered preventing Border Patrol from  using their roads. Fourth, some private landowners do not want a  documented maintenance agreement with Border Patrol. According to  Border Patrol sector officials, some of these landowners would rather not  have to be in compliance with any environmental regulations that may  come with signing a formal license agreement with a federal agency and  instead prefer a “handshake agreement.”

In addition to not consistently documenting arrangements, Border Patrol  sectors were not consistently aware of the documented arrangements  CBP has with private landowners. For example, Big Bend sector officials  told us that CBP does not have a documented license agreement with  any private landowner in their sector. According to sector officials, the  sector consists predominantly of private land, a vast majority of which is  located beyond 25 miles of the border and therefore outside the area for  which Border Patrol does not need a warrant to access private land. As  such, to prevent these owners from denying access to their roads, sector  officials told us they try to maintain good relationships with the owners of  the roads Border Patrol uses but does not maintain, by addressing  damage agents cause to their roads. Big Bend sector officials added that  they discuss and verbally agree with landowners on any required road  maintenance, relying on the relationships agents have established with  those landowners to come to agreement. However, CBP headquarters  officials subsequently provided us copies of five license agreements, all  executed in August 2016, that CBP has with private landowners in the Big  Bend sector. CBP officials also told us that an additional two license  agreements were in the process of being finalized. They added that  Border Patrol’s ranch liaisons, who serve as Border Patrol’s conduits to  landowners, are typically aware of these and other license agreements  with landowners in their sectors, and are responsible for making other  sector officials aware of the existence of the agreements.

We asked CBP FM&E and Border Patrol officials why arrangements for  road maintenance are not consistently documented or shared with Border  Patrol sectors. Officials from CBP FM&E, the office primarily responsible  for managing documented road maintenance arrangements, including  license agreements, said that agreements are documented based on  operational need by Border Patrol and added that FM&E works with  Border Patrol sectors to determine which roads need licensees. They also  stated that all licenses and agreements are held in the FITT system and  tracked in the eGIS. Officials from ORMD provided the following  rationales regarding documenting and sharing agreements. First, ORMD  officials stated that license agreements for road maintenance with private  landowners are managed on a case-by-case basis, depending on the  needs of the landowners and the Border Patrol sector. The standard is  that a road must have both real estate and environmental clearance prior  to receiving maintenance and repair. Second, according to these officials,  not every legacy road license agreement has been transitioned over to  CBP’s new system for documenting road maintenance, which may  explain why neither the owner (especially of land that has been passed  on from one generation to the next) nor sector officials know it exists and  seek to renew it. In other instances, some historical use agreements have  yet to be formally documented. According to ORMD officials, the  operational impact to Border Patrol of undocumented agreements can be  determined only on a case-by-case basis and will likely depend on the  location of the road and the ability to use adjacent alternate roads. They  added, however, that in general, the lack of documentation can slow  Border Patrol’s access to some roads. ORMD officials stated that in the  absence of documented agreements, Border Patrol takes great effort in  maintaining relationships with landowners to ensure continued access to  the roads it needs. In cases where landowners are apprehensive about  entering into formal license agreements with the government, Border  Patrol’s ranch liaisons continue to work with landowners to further engage  the landowners about entering into a documented agreement.

Standards for Internal Control in the Federal Government requires that  agencies clearly document and communicate all transactions and other  significant events, and make the documentation readily available for  examination. According to these standards, the documentation may  appear in management directives, administrative policies, or operating  manuals and may be in paper or electronic form. Those standards also  require that management internally communicate the necessary quality  information throughout an agency, using established reporting lines to  achieve the agency’s objectives. Without documenting and  communicating the arrangements it has with landowners, Border Patrol  has no record of what was agreed to with owners in terms of maintenance  of roads, which could hinder Border Patrol efforts to access and maintain  certain roads. Developing a policy and related guidance for documenting  arrangements with landowners, as needed, and ensuring that the  documented agreements are shared with all relevant Border Patrol sector  officials could help Border Patrol work with road and land owners more  consistently to address road maintenance. Such a policy could also better  provide opportunities to owners who want formalized arrangements, and  enhance the sectors’ ability to plan for road maintenance requirements.

Border Patrol Has Not Clearly Documented or Shared Its Processes and Criteria Used to Distribute Road Maintenance Funding to Its Sectors

Border Patrol uses any funding that remains after owned operational road  requirements are addressed to maintain non-owned operational roads;  however, Border Patrol has not clearly documented or shared the process  and criteria it uses for prioritizing maintenance of the non-owned  operational requirements with sector officials. After distributing CTIMR  funds to address its owned operational road maintenance, there are  thousands of miles of non-owned operational roads that do not receive  funding for maintenance. CBP FM&E officials explained that there is not a  dedicated budget for non-owned operational roads, and therefore, not  sufficient funding to address all the roads in need of maintenance. Also,  because CBP does not collect data on the frequency of its road use, CBP  is limited in its ability to effectively dedicate funding for road maintenance.  The funding to address maintenance and repair of non-owned operational  roads is derived from two main sources. First, CBP has the option of  redistributing excess funding from any unneeded owned operational road  maintenance project, among the sectors. For example, if the roads in  Tucson sector are not damaged as much as anticipated during the annual  monsoon season, CBP can redistribute funds originally designated for  Tucson sector for other road maintenance projects in other sectors within  the same work areas. The redistribution of such funds is determined by  Border Patrol’s Director of TI. Second, officials said that if funding from an  additional appropriation is made available, as was the case in fiscal year  2016, they can use it to address non-owned operational road  maintenance.

Border Patrol makes decisions on how to prioritize maintenance of non- owned operational roads; however, the process and criteria it uses for  making such funding decisions are not clearly documented and are not  shared with Border Patrol sector officials. During the course of our review,  we requested that ORMD provide a description of its prioritization process  both verbally and in writing. ORMD officials provided us with a written  description that included the following six steps for prioritizing non-owned  road maintenance:

Step 1: Review sectors’ past year priorities utilizing a road  requirements working group composed of representatives of all  divisions of the three Border Patrol directorates.

Step 2: Receive and review planning guidance from Border Patrol  senior leadership.

Step 3: Identify current and emerging threats.

Step 4: Review State of the Border Risk Methodology for updated risk  levels.

Step 5: Draft priority lists, utilizing the road requirements working  group.

Step 6: Brief, adjust, and obtain concurrence for priority lists utilizing  the road requirements working group and executive governance.

The document ORMD prepared for us also cites various criteria for  making funding decisions about non-owned roads, including whether  each proposed road requirement is considered a vulnerability. If it is  considered a vulnerability, ORMD determines whether it is documented in  the Capability Gap Analysis Process, and how the vulnerability ranks  among other identified vulnerabilities within the station and sector where  the road is located, and in the nation as a whole, to inform leadership.  Further, according to the document, ORMD officials determine the  urgency of funding the road requirement and whether it can be funded  given available resources.

ORMD officials identified various other factors that go into the decision- making process for prioritizing non-owned road maintenance. However,  these factors were different from those criteria included in the document  they prepared for us. For example, ORMD officials said that when  prioritizing sectors’ non-owned road maintenance, planners must first  consider sectors’ ranking on Border Patrol’s annual investment  prioritization list, which is based on intelligence, threat level, and other  information pertaining to each sector. ORMD officials stated that this list  serves as a starting point for the decision-making process to prioritize  sectors’ non-owned operational road maintenance requirements. Officials  added that the investment prioritization list is intended to help them with  the six-step maintenance prioritization process described above;  however, not all factors they consider when making the decision as to  which non-owned operational roads to maintain in each sector are  documented. They explained that the majority of their personnel have  been trained on the road maintenance planning process and are familiar  with all factors that go into the decision-making process.

ORMD officials said that sectors’ investment prioritization rankings are not  shared with the sectors. They explained that they prefer to not share the  list or sectors’ ranking with the sectors because this information is  intended to guide their decision-making, but is not the only factor they use  in determining sectors that should receive remaining funding for non- owned operational road maintenance.

None of the nine sector officials we contacted reported that they were  aware of the process and criteria ORMD uses to prioritize and fund  maintenance of non-owned operational roads. Rio Grande Valley sector  officials told us that funding of maintenance requirements for the Rio  Grande Valley sector takes priority over funding of other sectors’ non- owned operational road requirements. However, these officials stated that  they were unsure why this was the case, primarily because Border Patrol  had not shared the process and criteria it uses for non-owned operational  road maintenance decision-making. Standards for Internal Control in the  Federal Government requires that agencies clearly document all  transactions and other significant events, and make the documentation  readily available for examination. According to these standards, the  documentation may appear in management directives, administrative  policies, or operating manuals and may be in paper or electronic form.  Those standards also require that management internally communicate  the necessary quality information throughout an agency, using  established reporting lines to achieve the agency’s objectives. By clearly  documenting and communicating the process and criteria it uses for  making decisions on funding non-owned operational requirements,  ORMD could better ensure that sector officials are aware of the process  and criteria, and can therefore better plan for and anticipate funding to  meet their sector road maintenance needs. Moreover, documenting and  communicating the process and criteria by which it makes non-owned  operational road requirements funding decisions would ensure Border  Patrol has a record of the process not dependent on the persons with  current knowledge of the process being in the same positions.

Border Patrol Operations May Be Affected by CBP’s Inability to Maintain Certain Public Roads That Are in Poor Condition, but CBP Has Not Assessed Maintenance Options

Border Patrol Officials Reported That Certain Public Roads in Poor Condition Affect Border Security Operations

Border Patrol sector officials we interviewed reported that poorly  maintained public roads negatively affect their ability to conduct security  operations. Officials from six of the nine southwest border sectors  reported that poorly maintained public roads negatively affect their ability  to respond to threats because of limited road access or increased  response times, and cause additional wear and tear on vehicles. For  example, El Paso sector officials said that a 14-mile stretch of a public,  county road they use to access a forward operating base is severely  rutted, limiting agents’ ability to access the southernmost points of their  patrol area. In addition, officials from Laredo sector told us that a 40- mile county-owned road in the western part of the sector is in such poor  condition agents cannot always use it. The alternative route agents take  adds approximately 90 minutes to their patrol time. Laredo sector officials also said that when agents do use roads like this one, it results in wear  and tear on vehicles. Laredo sector officials reported that they had to  contract for outside mechanics as a result of additional demands for  vehicle repairs. Figure 4 documents the poor condition of the county road  in Laredo sector.

The extent to which Border Patrol operations are negatively affected by  the poor conditions of certain public roads is unknown because,  according to CBP and Border Patrol officials, Border Patrol does not  collect or maintain data on the extent of its use of any non-owned roads,  including public roads. According to officials, Border Patrol does not  collect such data because it does not make road maintenance decisions  based on how frequently it uses a road, but rather, on how critical the  road is to its operations. Border Patrol officials said that they have  assessed various ongoing or planned CBP data collection initiatives that  Border Patrol could leverage to collect data that could identify how often it  uses non-owned roads. For example, officials with CBP Enforcement  Systems Division—the office responsible for integrating technology  initiatives with operations in support of Border Patrol’s mission—said that  CBP’s Blue Force initiative—a method, usually using Global Positioning  System (GPS), of tracking the locations in real time of operational assets,  including vehicles and agents, to better coordinate operations—would  collect GPS tracking data. However, Border Patrol officials stated the  Blue Force initiative and other GPS tracking initiatives have not received  all planned funding amounts.

As CBP and Border Patrol officials said they do not have data that identify  the extent of Border Patrol’s use of non-owned roads, we gathered  examples from each of the nine southwest Border Patrol sectors of state,  county, city, and tribal public roads in poor condition that CBP is unable to  maintain and that sector officials said negatively affect their ability to  conduct operations. Table 2 provides examples of the public roads sector  officials identified, including a description of the roads, and how the road  conditions negatively affect Border Patrol’s operations.

CBP Officials Reported That the Inability to Maintain Certain Public Roads That Are in Poor Condition May Be Impeding Border Patrol’s Relations with Local Governments and Communities

CBP’s inability to address the maintenance of certain public roads Border  Patrol regularly uses can negatively affect Border Patrol’s relations with  local governments, according to CBP officials. Officials from two counties  and one tribe we spoke with told us that in certain rural areas along the  border, Border Patrol uses some public roads heavily or is the primary  user, and its use creates more wear and tear on the roads than would  ordinarily be caused by general public use. These officials said that their  agencies are responsible for fully funding required maintenance of the  roads they own; however, they may not address needed maintenance for  two reasons. First, their agencies do not have sufficient funding because  they do not have the necessary tax base to generate funds for extensive  road maintenance. Second, with limited funding, agencies may prioritize  roads the general public uses more frequently over rural roads used  regularly by Border Patrol. These county officials and Border Patrol sector  officials told us that CBP’s inability to offer any maintenance assistance  for public roads Border Patrol needs for operations makes collaboration  with local governments challenging and hurts Border Patrol’s credibility.  For example, officials we met with in an Arizona county identified a 5-mile  stretch of road within their county that Border Patrol uses frequently  because it provides access to the border. County officials told us they  currently spend $23,000 more each year to maintain the 5-mile road than  they would typically spend on a similar stretch of road as a result of the  wear and tear they attribute to Border Patrol’s use. Figure 5 shows  potholes and deteriorating shoulders on the county road.

In addition, officials from the Tohono O’odham Nation told us they do not  have sufficient BIA funding to maintain a 28-mile, major, public  thoroughfare leading to a Border Patrol forward operating base and the  border. Tucson sector officials said they are likely the primary user of the  southern end of the road and may create heavy wear and tear. These  officials reported that BIA would require approximately $14.5 million to  repair the 28-mile road; however, BIA receives approximately $26 million  for road repairs annually to cover 29,000 miles of roads under its  jurisdiction. Figure 6 shows the eroded condition of this tribal road.  Officials from the Arizona county and tribe have requested Border Patrol’s  assistance in maintaining public roads. As of July 2017, however, Border  Patrol had not provided such assistance.

Border Patrol sector officials also said relations between Border Patrol  and local border communities can be negatively affected by poor road  conditions, because the communities attribute the conditions to Border  Patrol’s use. These relations are important as Border Patrol relies on  good relations with communities to access roads owned by private  landowners in the community to conduct operations, according to Border  Patrol officials. Members of a community coalition in Arizona that meets  regularly to discuss options for addressing maintenance of a poorly  maintained public road that Border Patrol uses routinely told us that  Border Patrol’s use of the public road creates conditions that negatively  affect the local community and damage relations with Border Patrol.  Similar to the negative effects Border Patrol officials reported, members  of this community coalition told us they experience slower response times  by emergency response vehicles and damage to vehicles from poor road  conditions, resulting in higher vehicle maintenance costs. In addition,  these private landowners told us poor road conditions have negatively  affected the local economy. For example, residents of a town we met with  that is located near recreational amenities reported a decline in tourism  revenue. They stated that, in their view, the poor condition of roads  Border Patrol routinely uses has contributed to declines in tourism.

CBP Has Not Assessed Options for Addressing Maintenance of Nonfederal Public Roads in Poor Condition

CBP and Border Patrol officials have discussed two options that, if  implemented, could offer possible mechanisms for addressing  maintenance of nonfederal public roads. However, officials also  discussed challenges each option would present to CBP, and CBP has  not assessed these or other options for addressing maintenance of the  state, county, city, and other local roads it uses for its operations.

First, CBP officials told us they have considered seeking a specific  appropriation to maintain state and local (i.e., nonfederal) public roads  through financial or labor assistance. However, CBP officials said that  involvement in public road maintenance may raise liability considerations  and potential conflicts with the agency’s primary mission. For example,  CBP officials indicated that if CBP maintained nonfederal public roads, it  could be subject to negligence claims in relation to the repairs it conducts.  Additionally, CBP would require additional resources to negotiate  necessary contracts with public authorities to ensure they spend money  appropriately and to oversee the network of their roads that could be  necessary for CBP’s operations, according to officials. In addition, the  time and resources spent on road maintenance could divert Border Patrol  from its primary mission of securing the borders, according to CBP  officials.

Second, CBP and local officials we met with discussed two grant options  that could be informative in considering options to address the  maintenance of public roads Border Patrol uses routinely. While the  specific grants discussed may not apply to CBP or road maintenance, the  officials provided them as examples of grants that promote cooperation  between federal agencies and local governments.

First, after securing necessary legal authorities, CBP could establish a  grant program, which would allow CBP to provide funding to state and  local entities for road maintenance. Officials suggested that such a  program could also allow the public entities that own the roads to  conduct the maintenance themselves, alleviating Border Patrol’s  liability and resources concerns. For example, Border Patrol officials  discussed the success they have experienced using Operation  Stonegarden to leverage state and local resources for border security  while building relations with local law enforcement. Operation  Stonegarden provides funds for joint CBP, Border Patrol, and federal,  state, local, and tribal law enforcement agency efforts to secure U.S.  borders. These officials offered that a similar program could enable  CBP to provide funding to public entities to maintain certain roads.

Second, CBP and local officials identified federal funding for road  maintenance available to public agencies and executed through other  federal agencies that CBP may be able to contribute to. For example,  officials of a public water drainage district and town we met with said  they had previously applied for a Federal Lands Access grant. The  Federal Lands Access Program supplements state and local  resources for public roads, among other transportation related  infrastructure, with an emphasis on high-use recreation sites and  economic generators. The Federal Lands Access Program requires  applicants to provide at least a 20 percent match of the project cost.  Officials from the public water drainage district and town said another  local public entity planned to help it with the match for this grant. If  Border Patrol had an appropriation for non-owned road maintenance,  it could potentially help public entities, like the water drainage district,  meet the match for federal grants.

As of July 2017, CBP and Border Patrol have not assessed or  implemented any of the options described above for two predominant  reasons. First, CBP officials said the options each have accompanying  challenges, in addition to the liability and management issues discussed  above. For example, an appropriation to maintain public roads would not  likely be sufficient to cover all road maintenance for state, local, and tribal roads Border Patrol uses, according to CBP officials. They added that  limited funding to maintain the roads would put CBP in a position to  prioritize some public roads over others, which may further strain relations  with some public entities. Second, as discussed above, CBP officials told  us they do not currently have data that demonstrate the extent to which  Border Patrol relies on all non-owned roads, including public roads, to  conduct its operations. CBP officials also said they do not keep data on  the condition of roads owned by public entities. Without data on CBP’s  use of non-owned roads, determining a maintenance solution that uses  an appropriate amount of resources would be challenging.

Standards for program management call for program managers to assess  programs on an ongoing basis. To ensure continued success, program  managers can use feasibility studies to determine whether implementing  program changes could help mitigate any negative impacts. Assessing  the feasibility of options to ensure adequate maintenance of nonfederal  public roads, where necessary, including data needs for determining the  extent of its reliance on non-owned roads for border security operations,  could lead to a possible solution for enhancing Border Patrol’s operations  and its community relationships.

Border Patrol’s access to roads plays a key role in its ability to secure the  nation’s land borders from terrorism and other threats. While Border  Patrol has entered into maintenance arrangements with the federal, state,  and private landowners whose roads it uses for its operations, CBP and  Border Patrol officials told us they have not consistently documented  these arrangements because the need for an agreement with a  landowner is determined on a case-by-case basis. By not documenting  the arrangements it has with landowners, Border Patrol has no record of  what was agreed to with owners in terms of maintenance of roads, which  could hinder Border Patrol efforts to access and maintain certain roads.  Similarly, Border Patrol has not clearly documented or shared its process  and criteria for determining which non-owned roads to maintain with its  limited funding. By not clearly documenting and communicating the  process and criteria it uses for making decisions on funding non-owned  operational requirements, ORMD cannot reasonably ensure that sector  officials are aware of the process and criteria, and therefore cannot  ensure adequate planning for and anticipation of funding to meet sectors’  road maintenance needs requirements.

In addition, Border Patrol generally has access to public roads and has  certain authorities to use other nonpublic federal, tribal, and private  owned roads; however, it does not have a specific appropriation for public  improvements. Border Patrol agents reported experiencing negative  effects to their operations, such as delayed response times, from using  public roads that are generally in poor condition due to Border Patrol’s  use and inability to maintain the roads; however, CBP has not assessed  options for maintaining these roads, partly because it does not collect  data that indicates the extent of its reliance on all non-owned roads.  Without assessing options, including data needs, that may exist for  addressing maintenance of nonfederal public roads, CBP may be missing  feasible opportunities for addressing maintenance of the roads, thereby  foregoing an opportunity to enhance Border Patrol’s ability to rapidly  respond to threats at the border.

We are making the following three recommendations to CBP:

The Commissioner of CBP should develop and implement a policy  and related guidance for documenting arrangements with landowners,  as needed, on Border Patrol’s maintenance of roads it uses to  conduct its operations, and share these documented arrangements  with its sectors. (Recommendation 1)

The Commissioner of CBP should clearly document the process and  criteria for making decisions on funding non-owned operational  requirements and communicate this process to Border Patrol sectors.  (Recommendation 2)

The Commissioner of CBP should assess the feasibility of options for  addressing the maintenance of nonfederal public roads. This should  include a review of data needed to determine the extent of its reliance  on non-owned roads for border security operations.  (Recommendation 3)

We provided a draft of this report to DHS, DOD, DOI, and USDA for  review and comment. DHS agreed with our three recommendations. The  department’s response is reprinted in appendix II. DHS and DOI also  provided technical comments that we incorporated, as appropriate. In  response to our first recommendation that CBP develop and implement a  policy and related guidance for documenting road maintenance  arrangements with landowners, and share these documented  arrangements with its sectors, DHS concurred, stating that FM&E will  issue updated guidance on addressing maintenance of assets on private  land to Border Patrol and FM&E personnel located at the sectors. The  updated guidance, according to DHS, will reference the agency’s 2011  and 2015 policy and procedures for owned and non-owned road  maintenance, as well as points of contact for additional information on  landowner maintenance agreements. DHS also concurred with our  second recommendation that CBP clearly document the process and  criteria for making decisions on funding non-owned operational  requirements and communicate this process to Border Patrol sectors.  DHS stated that Border Patrol will outline the process and criteria for  making these funding decisions and communicate the process to Border  Patrol sectors. DHS concurred with our third recommendation that CBP  assess the feasibility of options for addressing the maintenance of non- federal public roads, including a review of data needed to determine the  extent of its reliance on non-owned roads. DHS stated that Border Patrol,  in collaboration with CBP FM&E, will review data on the extent of Border  Patrol's use of non-owned roads for border security operations and  develop a strategy that outlines options and assesses the feasibility for  maintaining roads, as appropriate. These actions, if implemented  effectively, should address the intent of our three recommendations.

We are sending copies of this report to the appropriate congressional  committees, the Secretaries of Homeland Security, Agriculture, Defense,  and the Interior, and other interested parties. In addition, the report is  available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions, please contact me at (202) 512- 8777 or gamblerr@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made significant contributions to this report  are listed in appendix VI.

Appendix I: Selected Federal Agencies’ Programs for Addressing Maintenance of Roads the Agencies Use but Do Not Own

We reviewed relevant authorities, policies, and procedures of three  selected departments that maintain roads owned by others (non-owned  roads) for conducting their operations—the Department of Defense  (DOD), the U.S. Department of Agriculture (USDA), and the Department  of the Interior (DOI). DOD addresses maintenance of all non-owned roads  through its Defense Access Roads (DAR) program. The U.S. Forest  Service (Forest Service) is a USDA component we identified that  addresses maintenance of non-owned roads. While DOI officials stated  that DOI is not authorized to directly address maintenance of the non- owned roads it uses for its operations, the Bureau of Indian Affairs (BIA),  a component of DOI, partners with public agencies to address  maintenance of non-owned roads that provide access to or within tribal  lands, through the Tribal Transportation Program.

We discuss the authorities, policies, and procedures utilized by the DAR  program, the Forest Service, and BIA in more detail in the following  sections. These authorities, policies, and procedures are specific to the  respective programs, and therefore are not applicable to the U.S. Border  Patrol (Border Patrol). In addition, U.S. Forest Service and BIA officials  said that unlike the U.S. Forest Service and the BIA, Border Patrol is not  a public road agency—a federal, state, local, or Indian government or  instrumentality with jurisdiction over, and authority to finance, build,  operate, or maintain, public roads. Further, Border Patrol has various  authorities including the ability to access private land, and therefore roads  on such land, located within 25 miles of the border, without a warrant.  The information presented below is intended to illustrate how other  selected federal departments and agencies address maintenance of non- owned roads.

Department of Defense: Defense Access Roads (DAR) Program

DOD and the Department of Transportation are jointly responsible for  administering the DAR program. Established in 1956, the DAR program  authorizes the Secretary of Transportation to use funds appropriated for  the Department of Defense to fully or partially fund public road  improvements and maintenance that are certified as important to national  defense. The program provides a means for the military to pay its “fair  share” of the cost of public road improvements and maintenance needed  in response to sudden and unusual defense-generated traffic or road  surface impacts, such as a significant increase in personnel at a military  installation, or use of a road by an oversized or overweight military  vehicle, and to help ensure adequate transportation capacity is in place  when needed. According to DOD officials, the DAR program is primarily  used to fund road construction to provide installation access and alternate  routes to reduce congestion caused by an installation and for the  maintenance of roads to support transportation of specialized military  equipment traveling on public roads.

Through the DAR program, DOD is authorized to address the  construction and maintenance of certain defense access roads which are  certified to the Secretary of Transportation as important to the national  defense. To implement its authorities, in 1978 DOD and the Federal  Highway Administration (FHWA) together developed a set of DAR  program eligibility criteria that specifies the types of roads DOD can  improve. These roads include (1) a replacement road; (2) a public road  that creates new access to a military facility; (3) a road on which traffic  has doubled as a result of the military’s use; and (4) a rural county road  that has limited carrying capacity and requires upgrade to sustain  consistent movements of military equipment. DOD officials said that they  use public roads like everyone else in the general public—that is, DOD  components use the roads while the public owners (for example, a state,  county, or city) maintain the roads—and are not authorized to address  maintenance of a public road unless the road is determined by the DAR  program to be a defense access road. DOD officials said they were not  aware of any instances involving DOD’s use of private roads. If there is  any such use, DOD officials stated that there would be an agreement in  place for addressing maintenance of the private roads.

DAR projects are funded from two sources—Military Construction funds  and Operation and Maintenance funds. The particular source used for a  project depends on the project’s work classification and dollar amount.  Projects for new construction that exceed $1 million are submitted as line  item requests in the President’s budget for authorization and  appropriation in the Military Construction program. Maintenance and  repair of existing roads under the DAR program is funded with Operation  and Maintenance funds. Minor military construction projects costing $1  million or less may also be funded with Operation and Maintenance  funds. DOD officials said that because there is not a dedicated funding  for the DAR program, it competes with every other military requirement  (including on-base construction requirements). Ultimately, funding is  based on a project’s merit to meet a military mission.

Under DAR program regulations, military installation commanders can  initiate a request for assistance from DAR if there is a defense-related  transportation need affecting the surrounding community. To initiate a  DAR project, the local military base identifies the access or mobility  requirement and submits a DAR needs report to the U.S. Army Military  Surface Deployment and Distribution Command (SDDC). SDDC will then  either conduct a DAR needs evaluation or request FHWA to make an  evaluation of improvements that may be necessary, determine the scope  of work to address the deficiencies, and develop a cost estimate.  According to a document DOD officials provided on the DAR program,  SDDC will determine if the proposed work meets the DAR program  qualification criteria and if so, certify the road as important to national  defense, thereby making it eligible for DOD funds. The military service  operating the base is then responsible for submitting the budget request  for the project funds through its normal planning, programming, and  budgeting process. Once programmed by the military service, if the work  is classified as new construction and exceeds $1 million, the funds must  be authorized and appropriated by Congress. After Congressional  approval, the funds are transferred to FHWA and allocated to the agency  administering the project (federal, state, county or other local  transportation authority). A project memorandum of agreement (MOA)  establishes specific roles and responsibilities for the officials involved in  the DAR project. Upon completion, long-term maintenance of the  improvement becomes the responsibility of the owning highway authority.

According to DOD officials, the most common DAR program maintenance  projects involve maintenance and repair of rural county roads used by the  Department of the Air Force to transport intercontinental ballistic missiles  from their main base to remote locations. These roads are often gravel  roads, but also include portions of paved roads. For operational reasons,  missile equipment cannot be transported over roads that are rutted or  washboarded; therefore, DOD is forced to maintain these roads to its  standards, which are typically higher than the standards of the counties  that own them, to ensure access and safety. DOD missile engineers  coordinate with state and county transportation departments, as well as  the FHWA, to execute the maintenance requirements. There are  approximately 1,500 miles of gravel roads to be kept at missile  transporter standards used by DOD. There is another 1,500 miles of  paved roads used by DOD for the missile transporter mission; however,  DOD does not generally maintain these roads, except in cases of an  emergency (e.g., surface washout or extreme snow removal).

In support of the missile transport requirement, DOD has an MOA with  each county and state it works with under the DAR program. These  MOAs are general in nature, outlining mostly the roles and responsibilities  of DOD, as well as those of the state or county. DOD officials explained  that if paved roads fall into disrepair, DAR missile engineers are generally  in close contact with state and local officials and have a very good  relationship with them to ensure the state or county maintains the road.  Typically, the state and local transportation officials adequately maintain  paved roads, while DOD generally maintains the unpaved roads. If the  responsible state and local agencies do not have the necessary funds to  maintain paved roads, DOD will look into using alternate routes for  transporting the missiles, or other alternatives, but would not generally  provide funding for the maintenance of paved roads, according to DOD  officials.

Department of Agriculture: U.S. Forest Service

The mission of the U.S. Forest Service, a component of USDA, is to  sustain the health, diversity, and productivity of the nation’s forests and  grasslands to meet present and future needs. To accomplish this mission,  the Forest Service manages and protects 154 national forests and 20  national grasslands in 43 states and Puerto Rico. The Forest Service  uses a wide variety of roads to access national forest system lands. A  large portion of these roads are owned and managed by the Forest  Service; however, the agency also relies on roads which cross land  managed and owned by other federal, state, local, and private  landowners authorized by various types of easements, road use permits,  or road rental agreements, to conduct its operations.

According to Forest Service officials, the Forest Service is a public road  agency and therefore operates and maintains roads that are open to the  public. In addition to these roads, Forest Service uses public roads like  the general public—with the relevant public road agency bearing  responsibility for maintenance of such roads. However, if traveling on a  public road with a vehicle that is not standard for the particular road type,  Forest Service would generally need to obtain a special-use permit as  required by the relevant public road agency. Forest Service must also  enter into agreements to use and maintain private roads. Conversely, if a  road is located on an existing right of way that is owned by the Forest  Service, and through private property, Forest Service does not need  additional permission to access and maintain the road. Also, according to  Forest Service officials, in the event of an emergency (fire, pursuit),  Forest Service can access a private road without permission.

Forest Service addresses maintenance of the owned and non-owned  roads it uses for its operations using allocated funding used for most road  restoration, maintenance, and repair, as well as funding from the FHWA  (funding to address maintenance of a smaller subset of roads). Forest  Service can enter into agreements with other public agencies for use and  maintenance of the agency’s roads or land under various authorities.  Funds available for forest development roads and trails are to be used by  the Secretary of Agriculture to cover costs of construction and  maintenance of such roads and trails, including those on experimental  and other areas under Forest Service administration. A set formula is  used to allocate Roads, Capital Improvement, Maintenance (CMRD)  funding to each of nine Forest Service regions, and then to each forest.  While CMRD funds can be shifted from one region to another, as needed,  officials said that there are restrictions on how funding from the Federal  Highway Administration can be distributed and spent. In the case of  either funding source, each forest determines how to spend the funding it  receives for road maintenance. The criteria used for making this road  maintenance decision takes into account, among other things, other road  construction and maintenance plans for the region where the forest is  located, according to Forest Service officials.

According to Forest Service officials, the agency predominantly maintains  its own roads and expects other entities, such as counties, to maintain  their own roads, regardless of how frequently Forest Service uses a  particular road. Forest Service’s policy is to enter into road maintenance  agreements with public agencies where there is a sufficient reason and  available funding to do so. Forest Service meets annually with public road  agencies and landowners to discuss existing and new road use  agreements and maintenance plans, as well as shared road maintenance  responsibilities, activities, and scheduled maintenance events. According  to Forest Service officials, as of July 2017, the agency had issued 5,854  Forest Road and Trail Act Easements to public road agencies and  landowners nationwide. These easements have clauses which direct  the Forest Service and the grantees to enter into agreements to use and  maintain each other’s roads. Individual forests are responsible for forming  any agreements they need for road maintenance. The specific terms of  these agreements are economically driven, primarily based on beneficial  need to the Forest Service and the availability of funding, according to  Forest Service officials. Officials said that Forest Service will maintain a  public road if it enables needed access. Officials said they can execute  MOUs with entities, such as counties, to share road maintenance costs.  Forest Service also partners with other federal agencies on use of federal  highways. The roads Forest Service typically uses are public-use and  multi-use roads. According to Forest Service officials, there are not many  instances in which Forest Service needs to access private roads. In  instances where it does, Forest Service’s policy is to obtain a perpetual,  motorized, public use easement; however, most private owners are  hesitant to grant ownership interest. Officials said that they use one-time  agreements on a small subset of roads to address wear and tear in  specific instances and based upon the Forest Service commensurate  road use. For example, officials said if Forest Service acquires land, but  has not yet acquired the roads leading to the property, Forest Service will  enter into a short-term agreement to maintain the roads until it acquires  ownership of the roads. All agreements are made on a case-by-case  basis, according to officials, but the focus for Forest Service is always on  the needs of the agency.

According to Forest Service officials, maintenance agreements are rare  because most of the roads the Forest Service needs are already  maintained at the level it needs them to be. There are not many examples  of Forest Service needing the roads to be maintained at a higher standard  than they already are. Forest Service officials also told us that the agency  prioritizes maintenance of the roads it owns over maintenance of roads  that are owned by others. Given the large network of roads under Forest  Service’s jurisdiction, there is rarely excess funding available to contribute  to the maintenance of roads owned by local government agencies,  officials said. To compensate for its limited funding, officials added that  Forest Service has helped local government agencies address  maintenance of their roads by providing a funding match to help qualify  these agencies for federal road maintenance grants. However, they said  that they do this only on a case-by-case basis, and only when Forest  Service and the local government agencies’ priorities align.

Forest Service officials said that a lot of collaboration occurs between the  Forest Service and other federal, state, and local agencies in order to  finance road improvements and maintenance. Most of its collaboration is  with states and counties. Forest Service collaborates with FHWA because  the latter grants the necessary easements to states for forest highways  which the Forest Service uses. Because counties get FHWA funds as  well to maintain forest highways along with county road intersections,  Forest Service works with counties on these roads to meet forest needs.

Department of the Interior: Bureau of Indian Affairs Background

DOI’s Bureau of Indian Affairs (BIA) is responsible for the administration  and management of approximately 56 million acres of land held in trust by  the United States for American Indians, Indian tribes, and Alaska Natives.  BIA provides services, including transportation services, directly or  through contracts, cooperative agreements, and grants, to approximately  1.9 million American Indians and Alaska Natives from the 567 federally  recognized tribes. One of BIA’s mechanisms for addressing maintenance  of non-tribal and non-BIA owned public roads is the Tribal Transportation  Program (TTP). Through the TTP, the Secretaries of Transportation and  the Interior pay the costs of eligible transportation projects involving tribal  transportation facilities, and other appropriate public road facilities, among  other activities. Public roads whose maintenance is addressed through  the TTP include roads owned by states, cities, counties, and other federal  agencies. The TTP is jointly administered by the BIA Division of  Transportation and the FHWA Federal Lands Highway Office.

According to BIA officials, BIA and tribal governments are public  authorities and are authorized to enter into agreements with other public  agencies to maintain non-owned roads that meet the definition of  transportation facilities that are eligible for assistance under the TTP.  The responsibility to maintain roads owned by another public authority  belongs to such authority with jurisdiction over the route (unless otherwise  provided for in an agreement or other usage permit). According to BIA  officials, a tribe or BIA may use TTP funds to maintain roads owned by  others, but only in accordance with an agreement allowing the tribe or BIA  to carry out maintenance activities on the roads and provided the public  authority that owns the road cannot or will not use its funds to maintain its  own road.

BIA is organized into 12 regions, each of which has a TTP component  that provides engineering, construction, and road maintenance services  for highways, roads, bridges, trails, or transit systems that are located on  or provide access to tribal land and appear on the National Tribal  Transportation Facility Inventory. The 12 regions can enter into  agreements with state and local governments to provide funding to  maintain public roads the state and local governments own and that  provide access to tribal lands when tribes have not assumed  responsibility for administering the TTP. BIA enters into and administers  these agreements for those tribes which do not have an agreement with  BIA for transportation funding, known as “direct service tribes.” Tribes  that have such an agreement with BIA, or FHWA, are responsible for  administering the TTP and would enter into and administer agreements  with state and local governments for maintenance of the roads they own  that provide access to tribal lands. According to BIA officials, of the  approximately 160,000 miles of roads that are eligible for TTP funding,  BIA owns approximately 29,000 miles. The amount of funding distributed  via the TTP is determined by a statutory formula based on several factors  including historic funding, miles of roads in the National Tribal  Transportation Facility Inventory in 2004 and 2012, population, and a  supplemental takedown designed to assist certain tribes with small  shares of funding relative to their fiscal year 2011 funding base. Prior to  2012, BIA allocated funding based on a regulatory formula that included  needs data continuously updated by tribes. TTP funding can be used as  the funding match state and local agencies need to qualify for federal  transportation improvement grants, depending on the transportation  needs of tribal governments. According to 23 U.S.C § 202(f), TTP funding  is not intended to replace the funding state and local governments receive  for planning, design, construction, and maintenance for their public roads.

Appendix II: Comments from the Department of Homeland Security

Appendix III: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Meg Ullengren (Assistant  Director), Edith Sohna, and Colleen Corcoran made key contributions to  this report. Also contributing to the report were David Alexander, Eric  Hauswirth, Terence Lam, John Mingus, Sasan J. “Jon” Najmi, Claire  Peachey, and Adam Vogt.