II 112th CONGRESS 1st Session S. 803 IN THE SENATE OF THE UNITED STATES April 13, 2011 Mr. McCain (for himself and Mr. Kyl) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To implement a comprehensive border security plan to combat illegal immigration, drug and alien smuggling, and violent activity in the southwest border of the United States.

1.

Short title

This Act may be cited as the Border Security Enforcement Act of 2011.

2.

Definitions

In this Act: (1)

Rural, high-trafficked areas

The term rural, high-trafficked areas means rural areas through which drugs and undocumented aliens are routinely smuggled, as designated by the Commissioner of U.S. Customs and Border Protection. (2)

Secretary

The term Secretary means the Secretary of Homeland Security. (3)

Southwest border region

The term Southwest Border region means the area in the United States that is within 150 miles of the international border between the United States and Mexico.

3.

National Guard support to secure the southern land border of the United States

(a)

In general

The Secretary of Defense shall deploy not fewer than 6,000 National Guard personnel to perform operations and missions under section 502(f) of title 32, United States Code, in the Southwest Border region for the purposes of assisting U.S. Customs and Border Protection in securing the international border between the United States and Mexico. (b)

Assignment of operations and missions

(1)

In general

National Guard units and personnel deployed under subsection (a) may be assigned such operations and missions as are necessary to secure the international border between the United States and Mexico. (2)

Nature of duty

Duty by National Guard personnel performing such operations and missions shall be full-time National Guard duty under title 32, United States Code. (c)

Range of operations and missions

The operations and missions assigned under subsection (b) shall include the temporary authority to— (1)construct fencing, including double-layer and triple-layer fencing; (2)increase ground-based mobile surveillance systems; (3)deploy additional unmanned aerial systems and manned aircraft sufficient to maintain continuous surveillance of the international border between the United States and Mexico; (4)deploy and provide capability for radio communications interoperability between U.S. Customs and Border Protection and State, local, and tribal law enforcement agencies; (5)construct checkpoints along the border to bridge the gap to long-term permanent checkpoints; and (6)conduct mobile patrols and provide assistance to U.S. Customs and Border Protection, particularly in rural, high-trafficked areas, as designated by the Commissioner, U.S. Customs and Border Protection. (d)

Materiel and logistical support

The Secretary of Defense shall deploy such materiel and equipment and logistics support as is necessary to ensure success of the operations and missions conducted by the National Guard under subsection (a). (e)

Exclusion from National Guard personnel strength limitations

National Guard personnel deployed under subsection (a) shall not be included in the calculation to determine compliance with limits on end strength for National Guard personnel or on limits on the number of National Guard personal that may be placed on active duty for operational support under section 115 of title 10, United States Code. (f)

Authorization of appropriations

There is authorized to be appropriated $600,000,000 to carry out this section during the 5-year period ending on September 30, 2016.

4.

Personnel enhancements

(a)

U.S. Customs and Border Protection

Not later than September 30, 2016, the Secretary shall increase the number of trained Border Patrol agents stationed in the Southwest Border region by 5,000, compared to the number of agents at such locations as of the date of the enactment of this Act. The Secretary shall make progress in increasing such number of trained Border Patrol agents during each of the fiscal years 2012 through 2016. (b)

Hardship duty pay

In addition to compensation to which Border Patrol agents are otherwise entitled, Border Patrol agents who are assigned to rural, high-trafficked areas shall be entitled to receive hardship duty pay, in an amount determined by the Commissioner, U.S. Customs and Border Protection, which may not exceed the rate of special pay to which members of a uniformed service are entitled under section 310 of title 37, United States Code. (c)

Danger pay for United States Marshals Service and Bureau of Alcohol, Tobacco, Firearms and Explosives personnel

Section 151 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 (Public Law 101–246; 5 U.S.C. 5928 note) is amended by striking or Federal Bureau of Investigation and inserting the Federal Bureau of Investigation, the United States Marshals Service, or the Bureau of Alcohol, Tobacco, Firearms and Explosives. (d)

Authorization of appropriations

(1)

Border patrol personnel

There are authorized to be appropriated $300,000,000 for each of the fiscal years 2012 through 2016 to carry out subsection (a). (2)

U.S. marshals service

In addition to amounts otherwise authorized to be appropriated, there are authorized to be appropriated $15,000,000 for each of the fiscal years 2012 through 2016, for salaries and benefits of United States Marshals Service personnel. (3)

Other personnel

There are authorized to be appropriated, during the 5-year period ending on September 30, 2016— (A)$110,000,000 for salaries and benefits for 500 new U.S. Customs and Border Protection officers; and (B)$17,000,000 for 144 new Office of Air and Marine pilots, vessel commanders, and support personnel.

5.

Enhancing existing border security operations

(a)

Operation Streamline

(1)

Implementation

The Attorney General, the Secretary, and the Director of the Administrative Office of the United States Courts shall— (A)fully implement Operation Streamline in the Southwest Border region; and (B)reimburse State, local, and tribal law enforcement for any detention costs related to such implementation. (2)

Additional magistrate judges to assist with increased caseload along Southwest border

The chief judge of each Federal judicial district in the Southwest Border region is authorized to appoint additional full-time magistrate judges, who shall have the authority to hear all cases and controversies in the district in which the respective judges are appointed. (b)

Operation Stonegarden

(1)

In general

The Federal Emergency Management Agency shall enhance law enforcement preparedness and operational readiness in the borders of the United States through Operation Stonegarden. (2)

Allocation

Of the amounts appropriated pursuant to subsection (e), not less than 90 percent shall be allocated for grants and reimbursement to law enforcement agencies in the States in the Southwest Border region for personnel, overtime, travel, and other costs related to illegal immigration and drug smuggling in the Southwest Border region. (c)

Infrastructure improvements

(1)

Border patrol stations

The Secretary shall— (A)construct additional Border Patrol stations in the Southwest Border region, as needed, to provide full operational support in rural, high-trafficked areas; and (B)analyze the feasibility of creating additional Border Patrol sectors along the international border between the United States and Mexico to interrupt drug trafficking operations. (2)

Forward operating bases

The Secretary shall enhance the security of the Southwest Border region by— (A)establishing additional permanent forward operating bases for the Border Patrol, as needed; (B)upgrading the existing forward operating bases to include modular buildings, electricity, and potable water; and (C)ensuring that forward operating bases surveil and interdict individuals entering the United States unlawfully immediately after such an individual crosses the international border between the United States and Mexico. (3)

Checkpoints

The Secretary shall— (A)complete the construction of a permanent checkpoint near Tubac, Arizona; and (B)deploy additional temporary roving checkpoints in the Southwest Border region. (4)

Border fence

Section 102(b)(1)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended— (A)by inserting , not later than December 31, 2011, after shall; and (B)by adding at the end the following: The Secretary shall replace landing mat fencing and construct double- and triple-layer fencing in the Southwest Border region (as defined in section 2 of the Border Security Enforcement Act of 2011), at locations determined by the Secretary, after consultation with the governors of the States in the Southwest Border region and representatives of State, tribal, and local law enforcement agencies.. (d)

Border security on certain Federal land

(1)

Definitions

In this subsection: (A)

Secretary concerned

The term Secretary concerned means— (i)with respect to land under the jurisdiction of the Secretary of Agriculture, the Secretary of Agriculture; and (ii)with respect to land under the jurisdiction of the Secretary of the Interior, the Secretary of the Interior. (B)

Federal lands

The term Federal lands includes all land, including a component of the National Wilderness Preservation System, under the control of the Secretary concerned that is located within 150 miles of the Southwest border region. (2)

Support for border security needs

(A)

In general

To achieve operational control of Federal lands— (i)the Secretary concerned shall authorize and provide U.S. Customs and Border Protection personnel with immediate access to Federal lands for security activities, including— (I)routine motorized patrols; and (II)the deployment of temporary tactical infrastructure; and (ii)the security activities described in clause (i) shall be conducted, to the maximum extent practicable, in a manner that the Secretary of Homeland Security determines will best protect the natural and cultural resources on Federal lands. (3)

Inventory of costs and activities

The Secretary shall— (A)coordinate with the Secretary concerned to develop an inventory of costs incurred by the agencies relating to illegal border activity on Federal lands; and (B)annually submit the inventory developed under subparagraph (A) to— (i)the Committee on Homeland Security and Governmental Affairs of the Senate; (ii)the Committee on the Judiciary of the Senate; (iii)the Committee on Appropriations of the Senate; (iv)the Committee on Homeland Security of the House of Representatives; (v)the Committee on the Judiciary of the House of Representatives; and (vi)the Committee on Appropriations of the House of Representatives. (4)

Intermingled private and state land

This subsection shall not apply to any private or State-owned land within the boundaries of Federal lands. (e)

Authorization of appropriations

(1)

Annual appropriations

There are authorized to be appropriated, for each of the fiscal years 2012 through 2016— (A)$50,000,000 to carry out subsection (a); (B)$100,000,000 to carry out subsection (b); (C)$20,000,000 to carry out subsection (c)(2); and (D)$50,000,000 to carry out section 102(b)(1)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note), as amended by subsection (c)(4). (2)

Permanent checkpoint construction

There is authorized to be appropriated $30,000,000 to carry out subsection (c)(3)(A). (3)

Detention upgrades at courthouses

There is authorized to be appropriated, for each of the fiscal years 2012 through 2016, $4,000,000, which shall be used to construct detention upgrades at Federal courthouses located in the Southwest border region.

6.

Equipment and technology

(a)

Enhancements

The Commissioner, U.S. Customs and Border Protection, shall— (1)deploy additional mobile, video, and agent-portable surveillance systems, and unmanned aerial vehicles in the Southwest Border region as necessary to provide 24-hour operation and surveillance; (2)operate unmanned aerial vehicles along such borders for 24 hours per day and for 7 days per week; (3)deploy additional fixed-wing aircraft and helicopters along such borders; (4)acquire new, rotocraft and make upgrades to the existing helicopter fleet; and (5)increase horse patrols in the Southwest Border region. (b)

Authorization of appropriations

In addition to amounts otherwise authorized to be appropriated, there is authorized to be appropriated $335,000,000 to U.S. Customs and Border Protection to carry out subsection (a) during fiscal year 2012.

7.

Access to emergency personnel

(a)

Southwest border emergency communications grants

(1)

In general

The Secretary, in consultation with the governors of the States in the Southwest Border region, shall establish a 2-year grant program, to be administered by the Secretary, to improve emergency communications in the Southwest Border region. (2)

Eligibility for grants

An individual is eligible to receive a grant under this subsection if the individual demonstrates that he or she— (A)regularly resides or works in the Southwest Border region; (B)is at greater risk of border violence due to the lack of cellular service at his or her residence or business and his or her proximity to such border. (3)

Use of grants

Grants awarded under this subsection may be used to purchase satellite telephone communications systems and service that— (A)can provide access to 9–1–1 service; and (B)are equipped with global positioning systems. (4)

Authorization of appropriations

There is authorized to be appropriated $3,000,000 to carry out the grant program established under this subsection. (b)

Interoperable communications for law enforcement

(1)

Federal law enforcement

There are authorized to be appropriated, to the Department of Homeland Security, the Department of Justice, and the Department of the Interior, during the 5-year period ending on September 30, 2016, $35,000,000, which may be used— (A)to purchase, through a competitive procurement process, P25-compliant radios, which may include a multi-band option, for Federal law enforcement agents working in the Southwest border region in support of the activities of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, including law enforcement agents of the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Department of the Interior, and the Forest Service; and (B)to upgrade, through a competitive procurement process, the communications network of the Department of Justice to ensure coverage and capacity, particularly when immediate access is needed in times of crisis, in the Southwest Border region for appropriate law enforcement personnel of the Department of Justice (including the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives), the Department of Homeland Security (including U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection), the United States Marshals Service, other Federal agencies, the State of Arizona, tribes, and local governments. (2)

State and local law enforcement

(A)

Authorization of appropriations

There is authorized to be appropriated to the Department of Justice, during the 5-year period ending on September 30, 2016, $35,000,000 to purchase, through a competitive procurement process, P25-compliant radios, which may include a multi-band option, for State and local law enforcement agents working in the Southwest Border region. (B)

Access to Federal spectrum

If a State, tribal, or local law enforcement agency in the Southwest Border region experiences an emergency situation that necessitates immediate communication with the Department of Justice, the Department of Homeland Security, the Department of the Interior, or any of their respective subagencies, such law enforcement agency shall have access to the spectrum assigned to such Federal agency for the duration of such emergency situation.

8.

Southwest Border Prosecution Initiative

(a)

Reimbursement to State and local prosecutors for federally initiated criminal cases

The Attorney General shall reimburse State, county, tribal, and municipal governments for costs associated with the prosecution and pre-trial detention of federally initiated criminal cases declined by local offices of the United States Attorneys. (b)

Authorization of appropriations

There is authorized to be appropriated $50,000,000 for each of the fiscal years 2012 through 2016 to carry out subsection (a).

9.

Definition of aircraft under aviation smuggling provisions of the Tariff Act of 1930

(a)

In general

Section 590 of the Tariff Act of 1930 (19 U.S.C. 1590) is amended— (1)by redesignating subsection (g) as subsection (h); and (2)by inserting after subsection (f) the following: (g)

Definition of aircraft

As used in this section, the term aircraft includes an ultralight vehicle, as defined by the Administrator of the Federal Aviation Administration. . (b)

Effective date

The amendments made by subsection (a) apply with respect to violations of any provision of section 590 of the Tariff Act of 1930 on or after the 30th day after the date of the enactment of this Act.

10.

Interagency collaboration

The Assistant Secretary of Defense for Research and Engineering shall collaborate with the Under Secretary for Science and Technology of the Department of Homeland Security in identifying equipment and technology used by the Department of Defense that could be used by U.S. Customs and Border Protection to improve the security of the international border between the United States and Mexico by— (1)detecting border tunnels; (2)detecting the use of ultralight aircraft; (3)enhancing wide aerial surveillance; and (4)otherwise improving the enforcement of such border.

11.

Reports

(a)

Government Accountability Office

Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives that includes— (1)an analysis of the number of additional forward operating bases and checkpoints that are necessary along the international border between the United States and Mexico to assist in improving border security; and (2)the number of additional personnel, infrastructure, and technology needed at land ports of entry along the Southwest border to address current levels of northbound and southbound cross-border inspections. (b)

Department of Homeland Security

Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives that includes— (1)an audit of the equipment and technology that was procured to be used through the SBInet program; and (2)an analysis of whether the procured equipment and technology can continue to be used by U.S. Customs and Border Protection. (c)

Joint equipment and technology report

The Under Secretary of Defense for Acquisition, Technology, and Logistics and the Under Secretary for Science and Technology of the Department of Homeland Security shall submit a joint report on the results of the collaboration under section 10 to— (1)the Committee on Armed Services of the Senate; (2)the Committee on Homeland Security and Governmental Affairs of the Senate; (3)the Committee on Armed Services of the House of Representatives; and (4)the Committee on Homeland Security of the House of Representatives.

12.

Rescission of unspent Federal funds to offset loss in revenues

(a)

In general

Notwithstanding any other provision of law, of all available unobligated funds, $4,030,000,000 in appropriated discretionary funds are rescinded. (b)

Implementation

The Director of the Office of Management and Budget shall determine and identify— (1)the appropriation accounts from which the rescission under subsection (a) shall apply; and (2)the amount of such rescission that shall be applied to each such account. (c)

Report

Not later than 60 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall submit a report to Congress and the Secretary of the Treasury that describes the accounts and amounts determined and identified for rescission under subsection (b). (d)

Exception

This section shall not apply to the unobligated funds of— (1)the Department of Defense; (2)the Department of Veterans Affairs; or (3)the National Nuclear Security Administration Weapons Activities and Naval Reactors Accounts.