[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

======================================================================

 
              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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                        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.

                                  [all]