[Congressional Record Volume 157, Number 88 (Monday, June 20, 2011)]
[Senate]
[Pages S3931-S3933]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Kyl, Ms. Landrieu, and Mrs. 
        McCaskill):
  S. 1236. A bill to reduce the trafficking of drugs and to prevent 
human smuggling across the Southwest Border by deterring the 
construction and use of border tunnels; to the Committee on the 
Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise to introduce the Border Tunnel 
Prevention Act of 2011 with my colleagues and friends, Senator Jon Kyl, 
Senator Mary Landrieu and Senator Claire McCaskill. This bill will 
provide law enforcement and prosecutors with important tools to locate 
border tunnels, identify criminals and punish those involved.
  As the U.S., Mexico border has become more secure, criminals have 
sought out new ways to transfer drugs and people across the border. For 
years, smugglers have tried to go around our border checkpoints. Now, 
they are trying to go under them to evade border enforcement. There is 
an increasing number and sophistication of tunnels along the Southwest 
border.
  Tunnels range from anything from a shallow dirt crawl way to 
sophisticated concrete structures with shoring, ventilation and 
electricity. One tunnel found in San Diego even had a makeshift 
elevator.

[[Page S3932]]

  Underground tunnels present a serious national security threat. The 
first tunnel was discovered in May of 1990. However, beginning in 2001, 
tunnels began to increase dramatically. Between September 2001 and 
today, an astonishing 125 completed tunnels have been discovered making 
a total of 137 completed tunnels since 1990.
  Border tunnels are most often used to transport narcotics from Mexico 
to the United States, but assumingly are also used to smuggle weapons 
and people. Just as tunnels can be used to transport drugs across the 
border, they could be used to smuggle a terrorist into the United 
States.
  In recent years, there has been a striking increase in the 
sophistication of these tunnels. To date, authorities have discovered 
61 sophisticated tunnels, 37 of which were constructed in California.
  In San Diego in February of 2006, I had the occasion to visit a very 
sophisticated tunnel discovered by the multi- agency San Diego Tunnel 
Task Force, led by U.S. Immigration and Customs Enforcement. The 
Department of Homeland Security has established these tunnel task 
forces in San Diego, El Paso, Nogales, Yuma and Imperial Valley.
  The tunnel was 2,400 feet long, close to half of a mile, stretching 
from an abandoned warehouse near the southern border of California 
through to Tijuana, Mexico. It remains the longest cross-border tunnel 
discovered in U.S. history, more than nine stories below ground at its 
deepest point, and had ample ventilation and groundwater drainage 
systems, cement flooring, lighting, and a pulley system.
  Authorities seized over 4,200 pounds of marijuana in the tunnel, and 
have attributed the operation to the Arellano Felix Organization.
  The exit of the tunnel in the United States was concealed in a small 
office inside a massive empty warehouse, covered only by four square 
tiles.
  After seeing this tunnel, I introduced the Border Tunnel Prevention 
Act of 2006. The bill became law in 2007 and criminalized the 
construction, financing or use of an unauthorized tunnel or 
subterranean passage across an international border into the United 
States. It also imposes a punishment for anyone who negligently permits 
others to construct or use an unauthorized tunnel or subterranean 
passage on their land.
  The first prosecution under this law was in connection to a December 
2009 partially-built tunnel found in Calexico, California. An 
investigation resulted in the arrest of Daniel Alvarez, a United States 
citizen. Alvarez eventually pled guilty to criminal violations put into 
place by the Border Tunnel Prevention Act and was sentenced to 15 
months in federal prison.
  Today, I am introducing a bill to enhance the 2007 law. Specifically, 
it will make the use, construction or financing of a border tunnel a 
conspiracy offense. This would punish the intent to engage in tunnel 
activity, even in cases where a tunnel was not fully constructed.
  The bill will include illegal tunneling as an offense eligible for 
Title III wiretaps even when there are not drugs or other contraband to 
facilitate a wiretap; specify border tunnel activity as unlawful under 
the existing forfeiture and money laundering provisions to allow 
authorities to seize assets in these cases.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1236

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Border Tunnel Prevention Act 
     of 2011''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) As the international border between the United States 
     and Mexico becomes more secure, trafficking and smuggling 
     organizations intensify their efforts to enter the United 
     States by increasing the number of tunnels and other 
     subterranean passages between Mexico and the United States.
       (2) Border tunnels are most often used to transport 
     narcotics from Mexico to the United States, but can also be 
     used to transport people and other contraband.
       (3) Between May 1990 and May 2011, law enforcement 
     authorities discovered 137 tunnels, 125 of which have been 
     discovered since September 2001. While law enforcement 
     authorities discovered only 2 tunnels in California between 
     1990 and 2001, there has been a dramatic increase in the 
     number of border tunnels discovered in California since 2001.
       (4) Section 551 of the Department of Homeland Security 
     Appropriations Act, 2007 (Public Law 109-295) added a new 
     section to title 18, United States Code (18 U.S.C. 555), 
     which--
       (A) criminalizes the construction or financing of an 
     unauthorized tunnel or subterranean passage across an 
     international border into the United States; and
       (B) prohibits any person from recklessly permitting others 
     to construct or use an unauthorized tunnel or subterranean 
     passage on the person's land.
       (5) Any person convicted of using a tunnel or subterranean 
     passage to smuggle aliens, weapons, drugs, terrorists, or 
     illegal goods is subject to an enhanced sentence for the 
     underlying offense. Additional sentence enhancements would 
     further deter tunnel activities and increase prosecutorial 
     options.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) National security zone.--The term ``national security 
     zone'' means any Southwest Border land designated by the 
     Secretary as being at a high risk for border tunnel activity, 
     as authorized under section 8(b).
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of Homeland Security.
       (3) Southwest border land.--The term ``Southwest Border 
     land'' means all parcels of real property in the United 
     States that--
       (A) are located within 1 mile of the international border 
     between the United States and Mexico; and
       (B) are not owned by a Federal, State, tribal, or local 
     government entity.

     SEC. 4. ATTEMPT OR CONSPIRACY TO USE, CONSTRUCT, OR FINANCE A 
                   BORDER TUNNEL.

       Section 555 of title 18, United States Code, is amended by 
     adding at the end the following:
       ``(d) Any person who attempts or conspires to commit any 
     offense under this section shall be subject to the same 
     penalties as those prescribed for the offense, the commission 
     of which was the object of the attempt or conspiracy.''.

     SEC. 5. AUTHORIZATION FOR INTERCEPTION OF WIRE, ORAL, OR 
                   ELECTRONIC COMMUNICATIONS.

       Section 2516(1)(c) of title 18, United States Code, is 
     amended by inserting ``, section 555 (relating to 
     construction or use of international border tunnels)'' before 
     the semicolon at the end.

     SEC. 6. FORFEITURE.

       (a) Criminal Forfeiture.--Section 982(a)(2)(B) of title 18, 
     United States Code, is amended by inserting ``555,'' after 
     ``545,''.
       (b) Civil Asset Forfeiture.--Any merchandise introduced 
     into the United States through a tunnel or passage described 
     in section 555(a) of title 18, United States Code, shall be 
     subject to seizure and forfeiture in accordance with section 
     596(c) of the Tariff Act of 1930 (19 U.S.C. 1595a(c)).

     SEC. 7. MONEY LAUNDERING DESIGNATION.

       Section 1956(c)(7)(D) of title 18, United States Code, is 
     amended by inserting ``section 555 (relating to border 
     tunnels),'' after ``section 554 (relating to smuggling goods 
     from the United States),''.

     SEC. 8. NOTIFICATION REQUIREMENTS.

       (a) Notification to Land Owners.--The Secretary is 
     encouraged to annually provide each known nongovernmental 
     owner and tenant of land located in a national security zone 
     with a written notification that describes--
       (1) Federal laws related to the construction of illegal 
     border tunnels; and
       (2) the procedures for reporting violations of such laws to 
     U.S. Immigration and Customs Enforcement.
       (b) Designation of Border Tunnel High Risk Areas.--
       (1) In general.--The Secretary may designate any Southwest 
     Border land that the Secretary has a substantial reason to 
     believe is at a high risk for border tunnel activity as a 
     national security zone.
       (2) Publication.--The Secretary shall--
       (A) publish any designations made under paragraph (1) in 
     the Federal Register; and
       (B) allow appropriate notice and comment in accordance with 
     the chapter 5 of title 5, United States Code (commonly 
     referred to as the ``Administrative Procedures Act'').
       (c) Rulemaking.--Not later than 18 months after the date of 
     the enactment of this Act, the Secretary shall promulgate 
     regulations to carry out this section.

     SEC. 9. REPORT.

       (a) In General.--The Secretary shall submit an annual 
     report to the congressional committees set forth in 
     subsection (b) that includes a description of--
       (1) the cross border tunnels in Southwest Border land 
     discovered during the reporting period; and
       (2) the needs of the Department of Homeland Security to 
     effectively prevent, investigate and prosecute border tunnel 
     construction on Southwest Border land.
       (b) Congressional Committees.--The congressional committees 
     set forth in this subsection are--
       (1) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       (2) the Committee on the Judiciary of the Senate;
       (3) the Committee on Appropriations of the Senate;

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       (4) the Committee on Homeland Security of the House of 
     Representatives;
       (5) the Committee on the Judiciary of the House of 
     Representatives; and
       (6) the Committee on Appropriations of the House of 
     Representatives.

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