[Senate Report 117-215]
[From the U.S. Government Publishing Office]
Calendar No. 568
117th Congress } { Report
SENATE
2d Session } { 117-215
_______________________________________________________________________
DHS ILLICIT CROSS-BORDER TUNNEL DEFENSE ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 4209
TO SUPPORT REMEDIATION OF ILLICIT CROSS-BORDER
TUNNELS, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 28, 2022.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
39-010 WASHINGTON: 2022
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Sarah C. Pierce, Senior Counsel
Katie A. Conley, Professional Staff Member
Pamela Thiessen, Minority Staff Director
Sam J. Mulopulos, Minority Deputy Staff Director
Jeremy H. Hayes, Minority Senior Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 568
117th Congress } { Report
SENATE
2d Session } { 117-215
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DHS ILLICIT CROSS-BORDER TUNNEL DEFENSE ACT
_______
November 28, 2022.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 4209]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 4209) to support
remediation of illicit cross-border tunnels, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis of the Bill, as Reported.............4
V. Evaluation of Regulatory Impact..................................4
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6
I. PURPOSE AND SUMMARY
H.R. 4209, the DHS Illicit Cross-Border Tunnel Defense Act,
requires that the Commissioner of U.S. Customs and Border
Protection (CBP), in coordination with the Department of
Homeland Security (DHS) Under Secretary of Science and
Technology and other DHS officials, as appropriate, develop a
strategic plan to counter illicit cross-border tunnel
operations within 180 days of enactment of the bill. The
strategic plan is required to include, among other things,
risk-based criteria for tunnel identification and remediation
and an assessment of resource needs to address counter tunnel
technology and staffing, such as personnel with specialized
skills, such as geology and mapping. The bill also requires the
CBP Commissioner to provide a report to Congress on the
implementation of this strategic plan. Finally, the bill
authorizes $1 million in appropriations for each of fiscal
years 2023 and 2024 to the Commissioner of CBP to develop the
strategic plan and carry out the tunnel identification and
remediation efforts described in the plan.
II. BACKGROUND AND NEED FOR THE LEGISLATION
Cross-border tunnels--man-made sub-surface passageways that
are used to conceal the movement of people or contraband and
circumvent U.S. border controls--have long been a threat to
U.S. border security.\1\ Since the U.S. Border Patrol (Border
Patrol) discovered the first cross-border tunnel in Douglas,
Arizona in 1990, law enforcement officials have since
discovered over 200 tunnels located primarily along the western
half of the southwest border of the United States.\2\ In recent
years, transnational criminal organizations have built more
sophisticated cross-border tunnels.\3\ For example, in January
2020, DHS encountered the longest cross-border tunnel ever
discovered near the Otay Mesa Port of Entry in California that
was over three-quarters of a mile long and had ventilation,
drainage, rail, and elevator systems.\4\ While transnational
criminal organizations use cross-border tunnels to smuggle
people, contraband, currency, and weapons, the primary use of
tunnels has been to smuggle drugs, including synthetic opioids
such as illicitly manufactured fentanyl, further contributing
to the current drug epidemic that has claimed hundreds of
thousands of lives in the United States.\5\
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\1\Department of Homeland Security, Office of Inspector General,
CBP Has Improved Southwest Border Technology, but Significant
Challenges Remain (OIG-21-21) (Feb. 2021) and Government
Accountability Office, Border Security: Additional Actions Could
Strengthen DHS Efforts to Address Subterranean, Aerial, and Maritime
Smuggling (GAO-17-474) (May 2017).
\2\The White House, Executive Office of the President, Office of
National Drug Control Policy, National Drug Control Strategy Southwest
Border Counternarcotics Strategy (2022) and House Committee on Homeland
Security, Subcommittee on Border and Maritime Security, Testimony
Submitted for the Record of Paul Beeson, Director of Department of
Homeland Security Joint Task Force--West, U.S. Customs and Border
Protection, Hearing on A Dangerous and Sophisticated Adversary: The
Threat to the Homeland Posed by Cartel Operations, 115th Cong. (Feb.
16, 2017).
\3\House Committee on Homeland Security, Subcommittee on Border and
Maritime Security, Testimony Submitted for the Record of Paul Beeson,
Director of Department of Homeland Security Joint Task Force--West,
U.S. Customs and Border Protection, Hearing on A Dangerous and
Sophisticated Adversary: The Threat to the Homeland Posed by Cartel
Operations, 115th Cong. (Feb. 16, 2017).
\4\U.S. Customs and Border Protection: Longest Cross-Border Tunnel
Discovered in San Diego (Jan. 1, 2020) (www.cbp.gov/newsroom/local-
media-release/longest-cross-border-tunnel-discovered
-san-diego).
\5\The White House, Executive Office of the President, Office of
National Drug Control Policy, National Drug Control Strategy Southwest
Border Counternarcotics Strategy (2022) and Centers for Disease Control
and Prevention: Drug Overdose Deaths in the U.S. Top 100,000 Annually
(Nov. 17, 2021) (www.cdc.gov/nchs/pressroom/nchs_press_releases/2021/
20211117.htm).
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DHS plays an important role in countering illicit cross-
border tunnels. DHS's CBP is responsible for safeguarding the
borders of the United States from illicit activity--such as
drug smuggling through cross-border tunnels.\6\ CBP is also
responsible for tunnel interdiction through Border Patrol, as
well as tunnel remediation.\7\ In 2013, CBP established a
Tunnel Program Management Office within Border Patrol to lead
and coordinate CBP's counter tunnel efforts following a DHS
Office of Inspector General audit that identified a gap in
CBP's ability to detect tunnels.\8\ DHS's Science and
Technology Directorate--the research and development arm of the
department--is responsible for assisting CBP in obtaining the
technology it needs to counter cross-border tunnels.\9\ U.S.
Immigration and Customs Enforcement's Homeland Security
Investigations--the principal investigative component of DHS--
is responsible for investigating, disrupting, and dismantling
the transnational criminal organizations responsible for cross-
border tunnels.\10\ In addition, DHS participates in a variety
of task forces and partnerships with other federal and state
law enforcement agencies to counter cross-border tunnels.
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\6\U.S. Customs and Border Protection, Home Page (www.cbp.gov/
about) (accessed Sept. 26, 2022).
\7\Government Accountability Office, Border Security: Additional
Actions Could Strengthen DHS Efforts to Address Subterranean, Aerial,
and Maritime Smuggling (GAO-17-474) (May 2017).
\8\Department of Homeland Security, Office of Inspector General,
CBP's Strategy to Address Illicit Cross-Border Tunnels (OIG-12-132)
(Sept. 2012).
\9\Department of Homeland Security Science and Technology, About
S&T (www.dhs.gov/science-and-technology/about-st) (accessed Sept. 26,
2022) and Government Accountability Office, Border Security: Additional
Actions Could Strengthen DHS Efforts to Address Subterranean, Aerial,
and Maritime Smuggling (GAO-17-474) (May 2017).
\10\U.S. Department of Homeland Security U.S. Immigration and
Customs Enforcement, About Homeland Security Investigations
(www.ice.gov/about-ice/homeland-security-investigations) (accessed
Sept. 26, 2022) and Government Accountability Office, Border Security:
Additional Actions Could Strengthen DHS Efforts to Address
Subterranean, Aerial, and Maritime Smuggling (GAO-17-474) (May 2017).
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In recent years, CBP has received funding to test and
acquire technologies that can predict tunnel locations, detect
and project the path of tunnels, and confirm a tunnel's
existence and location through mapping and measurements.\11\
H.R. 4209 requires that the Commissioner of CBP, in
coordination with the Under Secretary of Science and Technology
and other DHS officials as appropriate, develop a counter
illicit cross-border tunnel operations strategic plan within
180 days. The strategic plan must include, among other things,
risk-based criteria to prioritize tunnel identification and
remediation and identification of innovative technologies that
limit impacts on local communities. It must also include a
needs assessment that addresses counter tunnel technology and
staffing, such as personnel with specialized skills, including
geology and mapping.\12\ The bill requires the CBP Commissioner
provide a report to Congress on the implementation of this
strategic plan. Finally, the bill authorizes $1 million in
appropriations for each of fiscal years 2023 and 2024 to the
Commissioner of CBP to develop the strategic plan and carry out
the tunnel identification and remediation efforts described in
the plan.
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\11\House Committee on Appropriations, Joint Explanatory
Statement--Division F to the Consolidated Appropriations Act of 2022
(Mar. 2022).
\12\Email from Daniel Schroeder, Deputy Director, U.S. Customs and
Border Protection Office of Congressional Affairs, Homeland Security
and Governmental Affairs Committee Staff (Oct. 25, 2022).
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III. LEGISLATIVE HISTORY
H.R. 4209 was introduced by Representative August Pfluger
(R-TX) on June 28, 2021 with Representative Debbie Lesko (R-
AZ). The bill was referred to the Committee on Homeland
Security. Representatives Elissa Slotkin (D-MI) and Jared
Golden (D-ME) joined as cosponsors on January 6, 2022.
Representative Young Kim (R-CA) joined as a cosponsor on
February 11, 2022 and Representative Jaime Herrera Beutler (R-
WA) joined as a cosponsor on February 18, 2022. On July 28,
2021, the House Committee on Homeland Security met to consider
the bill, and ordered the bill, as amended, reported favorably
to the House by voice vote. The bill was agreed to by voice
vote in the House of Representatives under suspension of the
rules on April 5, 2022. It was received in the Senate on April
6, 2022 and was referred to the Senate Committee on Homeland
Security and Governmental Affairs.
The Committee considered H.R. 4209 at a business meeting on
September 28, 2022. The bill was ordered reported favorably by
voice vote en bloc. Senators Peters, Carper, Hassan, Sinema,
Rosen, Padilla, Ossoff, Portman, Paul, Johnson, Lankford,
Romney, Scott, and Hawley were present.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section designates the name of the bill as the ``DHS
Illicit Cross-Border Tunnel Defense Act.''
Section 2. Counter illicit cross-border tunnel operations
Subsection (a) requires that the Commissioner of CBP, in
coordination with the Under Secretary of Science and Technology
and other DHS officials, as appropriate, to develop a strategic
plan to counter illicit cross-border tunnel operations no later
than 180 days after enactment of the bill. The strategic plan
is to include risk-based criteria to prioritize tunnel
identification and remediation; identification of innovative
technologies to locate and remediate tunnels that limit the
impacts on local communities; information sharing processes;
and indicators of specific types of illicit cross-border
tunnels--by Border Patrol sector--that are to be periodically
shared with sector officials. The strategic plan is also
required to include a counter illicit cross-border tunnel
operations resource needs assessment that addresses technology
and staffing. Specifically related to staffing, it should
include position descriptions, specialized skills, and the
number of personnel by Border Patrol sector needed to counter
illicit cross-border tunnel operations.
In addition, subsection (a) requires that the CBP
Commissioner submit a report to the Committee on Homeland
Security of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate on the
implementation of the strategic plan within one year of its
development.
Subsection (b) authorizes $1 million in appropriations for
each of fiscal years 2023 and 2024 to the Commissioner of CBP
to carry out the development of the strategic plan described in
subsection (a) and remediation operations of illicit cross-
border tunnels in accordance with the plan.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 20, 2022.
Hon. Gary C. Peters,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4209, the DHS
Illicit Cross-Border Tunnel Defense Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Margot
Berman.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 4209 would require Customs and Border Protection (CBP)
in the Department of Homeland Security (DHS) to develop a
strategic plan for identifying and remediating cross-border
tunnels into the United States within 180 days of the act's
enactment. The plan would include ways of using technology and
sharing information to identify and block tunnels as well as an
assessment of staffing needs. The act would require CBP to
submit a report on implementation to the Congress one year
after the development of the plan.
H.R. 4209 would authorize the appropriation of $1 million
for each of fiscal years 2023 and 2024 for CBP to develop the
strategic plan and carry out tunnel remediation operations.
Using historical patterns of spending for similar programs and
assuming appropriation of the authorized amounts, CBO estimates
CBP would spend $2 million over the 2023-2027 period to
implement the act.
H.R. 4209 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
On November 5, 2021, CBO transmitted a cost estimate for
H.R. 4209, the DHS Illicit Cross-Border Tunnel Defense Act, as
ordered reported by the House Committee on Homeland Security on
July 28, 2021. The pieces of legislation are similar, and CBO's
estimates of their budgetary effects are similar.
The CBO staff contact for this estimate is Margot Berman.
The estimate was reviewed by Leo Lex, Deputy Director of Budget
Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation would make no change in existing law,
within the meaning of clauses (a) and (b) of subparagraph 12 of
rule XXVI of the Standing Rules of the Senate, because this
legislation would not repeal or amend any provision of current
law.
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