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[House Report 112-274]
[From the U.S. Government Publishing Office]

112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-274

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                       SECURE BORDER ACT OF 2011

                                _______
                                

 November 10, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. King of New York, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1299]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 1299) to achieve operational control of and 
improve security at the international land borders of the 
United States, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Hearings.........................................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     6
Committee Oversight Findings.....................................     6
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
Congressional Budget Office Estimate.............................     6
Statement of General Performance Goals and Objectives............     7
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     8
Federal Mandates Statement.......................................     8
Preemption Clarification.........................................     8
Advisory Committee Statement.....................................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis of the Legislation...................     8
Changes in Existing Law Made by the Bill, as Reported............     9

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

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

SEC. 2. STRATEGY TO ACHIEVE OPERATIONAL CONTROL OF THE BORDER.

  (a) Strategy to Secure the Border Between the Ports of Entry.--Not 
later than 180 days after the date of the enactment of this Act, the 
Secretary of Homeland Security shall submit to the appropriate 
congressional committees a comprehensive strategy for gaining, within 
five years, operational control of the international borders between 
the ports of entry of the United States. The strategy shall include an 
analysis of the following:
          (1) Staffing requirements for all border security functions.
          (2) Investment in infrastructure, including pedestrian 
        fencing, vehicle barriers, and roads.
          (3) The use of unmanned aerial vehicles, camera technology, 
        sensors, and other innovative technology as the Secretary may 
        determine.
          (4) Cooperative agreements with international, State, local, 
        tribal, and other Federal law enforcement agencies that have 
        jurisdiction on the northern border and southern border.
          (5) Other means designed to detect, respond to, and interdict 
        unlawful cross-border activity and to reduce the level of 
        violence.
          (6) A schedule for implementing security measures, including 
        a prioritization for future investments.
          (7) A comprehensive technology plan for major surveillance 
        and detection technology programs, including a justification 
        and rationale for technology choices and deployment locations.
          (8) The recommendations made in the December 2010 Government 
        Accountability Office report entitled ``Enhanced DHS Oversight 
        and Assessment of Interagency Coordination is Needed for the 
        Northern Border''.
  (b) Securing the Border at Ports of Entry.--Not later than 180 days 
after the date of the enactment of this Act, the Secretary of Homeland 
Security shall develop metrics to measure the effectiveness of security 
at ports of entry, which shall consider, at minimum, the following:
          (1) The number of infractions related to personnel and cargo 
        committed by major violators who are apprehended by U.S. 
        Customs and Border Protection at such ports of entry.
          (2) The estimated number of such infractions committed by 
        major violators who are not so apprehended.
          (3) The required number of U.S. Customs and Border Protection 
        Officers, Agricultural Specialists, and Canine Enforcement 
        Officers necessary to achieve operational control at such ports 
        of entry.
          (4) Infrastructure improvements required to achieve 
        operational control at such ports of entry, including the 
        installation of nonintrusive detection equipment, radiation 
        portal monitors, biometrics, and other sensors and technology 
        that the Secretary determines necessary.
          (5) The deployment of resources based on the overall 
        commercial and passenger traffic, cargo volume, and threat 
        environment at such ports of entry.
          (6) The recommendations made in the December 2010 Government 
        Accountability Office report entitled ``Enhanced DHS Oversight 
        and Assessment of Interagency Coordination is Needed for the 
        Northern Border''.
  (c) Evaluation by Department of Energy National Laboratory.--The 
Secretary of Homeland Security shall request the head of an appropriate 
Department of Energy National Laboratory with prior expertise in border 
security to evaluate the measurement system required under subsection 
(b) to ensure its suitability and statistical validity for analyzing 
progress for the interdiction of illegal crossing and contraband at 
ports of entry.
  (d) Consideration of Alternative Border Security Standards.--If in 
developing the strategic plan required under subsection (a) the 
Secretary of Homeland Security makes a determination to measure 
security between border ports of entry by a standard other than 
operational control, the Secretary shall request the head of an 
appropriate Department of Energy National Laboratory with prior 
expertise in border security to evaluate such alternative standard to 
ensure the suitability and statistical validity of such standard with 
respect to measuring the progress for the interdiction of illegal 
crossings and contraband that pass between such ports of entry.
  (e) Reports.--Not later than 60 days after the date of the enactment 
of this Act and annually thereafter, the Secretary of Homeland Security 
shall submit the appropriate congressional committee a report on the 
following:
          (1) A resource allocation model for current and future year 
        staffing requirements that includes optimal staffing levels at 
        all land, air, and sea ports of entry and an explanation of 
        U.S. Customs and Border Protection methodology for aligning 
        staffing levels and workload to threats and vulnerabilities 
        across all mission areas.
          (2) Detailed information on the level of manpower data 
        available at all land, air, and sea ports of entry, including 
        the number of canine and agricultural officers assigned to each 
        such port of entry.
  (f) Definitions.--In this Act:
          (1) Appropriate congressional committee.--The term 
        ``appropriate congressional committee'' means the Committee on 
        Homeland Security of the House of Representatives and the 
        Committee on Homeland Security and Governmental Affairs of the 
        Senate.
          (2) Major violator.--The term ``major violator'' means a 
        person or entity that is or has engaged in serious criminal 
        activities at any land, air, or sea port of entry, including 
        possession of narcotics, smuggling of prohibited products, 
        human smuggling, weapons possession, use of fraudulent United 
        States documents, and other offenses serious enough to result 
        in arrest.
          (3) Operational control.--The term ``operational control'' 
        has the meaning given such term in section 2(b) of the Secure 
        Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109-367).

                          Purpose and Summary

    The purpose of H.R. 1299 is to achieve operational control 
of and improve security at the international land borders of 
the United States, and for other purposes.

                  Background and Need for Legislation

    The 2004 National Border Patrol Strategy, produced by the 
U.S. Border Patrol, was predicated on the concept of gaining 
and maintaining operational control of the borders. The 
Department of Homeland Security in the Fiscal Year 2012 Budget 
Justification documents provided to Congress indicated that the 
Department had no plans to gain additional miles of operational 
control during Fiscal Year 2011 or 2012.
    The Government Accountability Office report, ``Preliminary 
Observations on Border Control Measures for the Southwest 
Border'' (GAO-11-374T), indicated that only 44 percent of the 
southwest border was under operational control, and an earlier 
report, ``Enhanced DHS Oversight and Assessment of Interagency 
Coordination Is Needed for the Northern Border'' (GAO-11-97), 
indicated that only 32 of the nearly 4,000 northern border 
miles in fiscal year 2010 had reached an acceptable level of 
security.
    Since September 11th, 2001, Congress has spent billions of 
dollars to secure the borders through investments in personnel, 
technology and infrastructure. The Committee believes that 
investments in border security should not be ad hoc; rather 
investments should only be made as part of a larger strategic 
plan.
    The Committee believes that the Department of Homeland 
Security should produce a comprehensive and coherent plan to 
gain and maintain operational control, as defined by the Secure 
Fence Act of 2006, to guide future investments for the Nation's 
border security efforts.
    Security at the ports of entry is also of concern to the 
Committee. The Department of Justice reports that 90 percent of 
the illegal drugs that enter the Nation come though just 20 
ports of entry. Customs and Border Protection's Office of Field 
Operations has no National measurement tool to gauge security 
progress at the ports of entry. Government Accountability 
Office ``red team'' exercises indicate that security challenges 
exist at the Nation's ports of entry. A clear and verifiable 
way to measure security progress at the ports of entry is 
needed to inform training requirements, infrastructure spending 
and staffing requirements.
    The Department of Homeland Security is currently working on 
a metric called the Border Condition Index, which has been 
explained as a means to capture several disparate indicators of 
border security to present a more holistic view of the 
conditions along the Nation's borders. While the Committee does 
not oppose such work, we believe that any proposed replacement 
for the statutorily defined operational control standard should 
be vigorously vetted by a Department of Energy National 
Laboratory to ensure its suitability.

                                Hearings

    No hearings were held on H.R. 1299 in the 112th Congress, 
however the Committee conducted oversight hearings on the 
issues involved.
    On February 15, 2011, the Subcommittee on Border and 
Maritime Security held a hearing entitled ``Securing Our 
Borders--Operational Control and the Path Forward.'' The 
Subcommittee received testimony from Mr. Michael J. Fisher, 
Chief, Border Patrol, U.S. Customs and Border Protection, 
Department of Homeland Security; Mr. Richard M. Stana, 
Director, Homeland Security and Justice, Government 
Accountability Office; and Hon. Raul G. Salinas, Mayor, City of 
Laredo, Texas. The hearing focused on the Department's efforts 
to gain and maintain operational control of the borders. It 
examined the effectiveness of the U.S. Border Patrol's measures 
for obtaining operational control including statistics on 
apprehensions, contraband seized, and number of Border Patrol 
Agents assigned to the southwest border. Additionally, the 
hearing provided Members an opportunity to explore whether a 
Department-wide strategy to secure the borders exists.
    On March 15, 2011, the Subcommittee Border and Maritime 
Security held a hearing entitled ``Strengthening the Border--
Finding the Right Mix of Personnel, Infrastructure, and 
Technology.'' The Subcommittee received testimony from Mr. 
Michael J. Fisher, Chief of the Border Patrol, U.S. Customs and 
Border Protection, Department of Homeland Security; Mr. Mark 
Borkowski, Assistant Commissioner, Office of Technology 
Innovation and Acquisition, U.S. Customs and Border Protection, 
Department of Homeland Security; Mr. Michael C. Kostelnik, 
(Maj. Gen. Ret.) Assistant Commissioner, Office of Air & 
Marine, U.S. Customs and Border Protection, Department of 
Homeland Security; Major General Hugo E. Salazar, Adjutant 
General, Arizona National Guard; and Mr. Richard M. Stana, 
Director, Homeland Security and Justice, Government 
Accountability Office.
    On April 5, 2011, the Subcommittee Border and Maritime 
Security held a hearing entitled ``Using Resources Effectively 
to Secure Our Border at Ports of Entry--Stopping the Illicit 
Flow of Money, Guns, and Drugs.'' The Subcommittee received 
testimony from Mr. Thomas Winkowski, Assistant Commissioner, 
U.S. Customs and Border Protection, Department of Homeland 
Security; Mr. Stan Korosec, Vice President, Operations, Blue 
Water Bridge Canada; Mr. Timothy J. Koerner, Vice President & 
Chief Security Officer, Canadian National Railway Company; and 
Hon. Richard F. Cortez, Mayor, City of McAllen, Texas.

                        Committee Consideration

    The Subcommittee on Border and Maritime Security met on 
June 2, 2011, to consider H.R. 1299, and ordered the measure to 
be reported to the Full Committee with a favorable 
recommendation, amended, by voice vote. The Committee took the 
following actions:
      The following amendments were offered:

  An Amendment in the Nature of a Substitute to H.R. 1299 
offered by Mrs. Miller (#1); was AGREED TO by voice vote.
  A unanimous consent request by Mrs. Miller to consider the 
Amendment in the Nature of a Substitute as base text for 
purposes of amendment was not objected to.

      An amendment to the Amendment in the Nature of a 
Substitute to H.R. 1299 offered by Ms. Jackson Lee (#1A); was 
NOT AGREED TO by voice vote.

  Page 1, beginning line 7, strike ``The border shared by the United 
States and Mexico, and numerous Mexican towns in close proximity to 
that border,'' and insert ``Numerous Mexican towns in close proximity 
to the United States border.''
  Page 1, beginning line 14, insert a new paragraph (2) (and 
redesignate subsequent paragraphs accordingly).

  An amendment to the Amendment in the Nature of a Substitute 
to H.R. 1299 offered by Ms. Jackson Lee (#1B); WAS NOT AGREED 
TO by a roll call vote of 4 yeas and 7 nays (Roll Call Vote No. 
1).

  Page 3, beginning line 16, insert the following new paragraph (and 
redesignate subsequent paragraphs accordingly): ``(8) Efforts to 
protect the civil and constitutional rights of persons encountered 
along the United States border.''

  An amendment to the Amendment in the Nature of a Substitute 
to H.R. 1299 offered by Ms. Jackson Lee (#1C); was NOT AGREED 
TO by a roll call vote of 4 yeas and 7 nays (Roll Call Vote No. 
2).

  Page 3, beginning line 16, insert the following new paragraph (and 
redesignate subsequent paragraphs accordingly): ``(8) Efforts to 
protect the life and safety of persons who may be subjected to harsh 
and life-threatening weather conditions and terrain.''

    The Committee met on September 21, 2011, to consider H.R. 
1299, and ordered the measure to be reported to the House with 
a favorable recommendation, amended, by voice vote. The 
Committee took the following actions:
      The following amendments were offered:
  An Amendment in the Nature of a Substitute offered by Mrs. 
Miller (#1); was AGREED TO by voice vote.
  An amendment offered by Ms. Hochul to the Amendment in the 
Nature of a Substitute (#1A); was AGREED TO by voice vote.

  Page 2, beginning line 18, insert the following:
      (8) The recommendations made in the December 2010 Government 
Accountability Office report entitled ``Enhanced DRS Oversight and 
Assessmentof Interagency Coordination is Needed for the Northern 
Border''.
  Page 3, beginning line 19, insert the following:
      (6) The recommendations made in the December 2010 Government 
Accountability Office report entitled ``Enhanced DRS Oversight and 
Assessment of Interagency Coordination is Needed for the Northern 
Border''.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    The Subcommittee on Border and Maritime Security considered 
H.R. 1299 on June 2, 2011. The following recorded votes were 
requested:
An Amendment to the Amendment in the Nature of a Substitute 
offered by Ms. Jackson Lee (#1B); was NOT AGREED TO by Recorded 
vote of 4 yeas and 7 nays (Roll Call Vote No. 1). The vote was 
as follows:
        YEAS                          NAYS
Mr. Cuellar                         Mrs. Miller
Ms. Sanchez                         Mr. Rogers
Ms. Jackson Lee                     Mr. McCaul
Mr. Clarke                          Mr. Broun
                                    Mr. Quayle
                                    Mr. Rigell
                                    Mr. Duncan

An Amendment to the Amendment in the Nature of a Substitute 
offered by Ms. Jackson Lee (#1C); was NOT AGREED TO by Recorded 
vote of 4 yeas and 7 nays (Roll Call Vote No. 2). The vote was 
as follows:
        YEAS                          NAYS
Mr. Cuellar                         Mrs. Miller
Ms. Sanchez                         Mr. Rogers
Ms. Jackson Lee                     Mr. McCaul
Mr. Clarke                          Mr. Broun
                                    Mr. Quayle
                                    Mr. Rigell
                                    Mr. Duncan

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
1299, the Secure Border Act of 2011, would result in no new or 
increased budget authority, entitlement authority, or tax 
expenditures or revenues.

                  Congressional Budget Office Estimate

     The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.
    The Committee believes that the de minimis costs associated 
with development of a strategy to gain operational control of 
the border and the requirement for a new security measurement 
at the ports of entry as required by H.R. 1299 should be 
supported using existing funds appropriated for border 
security.

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 21, 2011.
Hon. Peter T. King,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1299. the Secure 
Border Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1299--Secure Border Act of 2011

    H.R. 1299 would require the Department of Homeland Security 
(DHS), within 60 days of the bill's enactment and annually 
thereafter, to submit to the Congress a report on staffing 
levels at U.S. ports of entry. Within 180 days of enactment, 
DHS would have to devise a comprehensive strategy to gain 
control of United States borders and develop metrics to 
evaluate the effectiveness of security measures at ports of 
entry. In addition, H.R. 1299 would require a Department of 
Energy (DOE) national laboratory to evaluate the port security 
metrics developed by DHS.
    In recent years, DHS has made considerable planning and 
operational efforts to gain control of U.S. borders and has 
collaborated with DOE to identify ways to improve border and 
port security. CBO expects that many of the departmental 
activities that are currently underway would be useful in 
meeting the bill's reporting requirements and deadlines. Thus, 
we estimate that implementing H.R. 1299 would cost less than 
$500,000 annually from appropriated funds. Enacting the bill 
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
    H.R. 1299 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, H.R. 1299 contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
    The performance goals and objectives of H.R. 1299 are the 
development of a strategy to secure the Nation's borders both 
between, and at, the ports of entry along with associated 
measurements which will inform and guide future investments in 
border security.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

    In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule 
XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                        Preemption Clarification

    In compliance with section 423 of the Congressional Budget 
Act of 1974, requiring the report of any Committee on a bill or 
joint resolution to include a statement on the extent to which 
the bill or joint resolution in intended to preempt State, 
local, or Tribal law, the Committee finds that H.R. 1299 does 
not preempt any State, local, or Tribal law.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

     The Committee finds that the legislation does not relate 
to the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation

Section 1.  Short title
    This section provides that bill may be cited as the 
``Secure Border Act of 2011.''

Section 2.  Strategy to achieve operational control of the 
border
    (a) Strategy To Secure the Border Between the Ports of 
Entry.
    This section requires the Secretary of Homeland Security to 
submit a comprehensive strategy within 180 days to gain and 
maintain operational control of the U.S. Borders within five 
(5) years.
    This section requires the Secretary of Homeland Security to 
submit a comprehensive strategy within 180 days to gain and 
maintain operational control of the U.S. Borders within five 
(5) years.
    In preparing this strategy the Secretary of Homeland 
Security shall take into account: staffing requirements; 
investment in infrastructure, including pedestrian fencing, 
vehicle barriers, and roads; the use of unmanned aerial 
vehicles, camera technology, and sensors; cooperative 
agreements with international, State, local, tribal, and other 
Federal law enforcement agencies that have jurisdiction on the 
border; and a comprehensive technology lay down plan for major 
surveillance and detection technology programs, including a 
justification and rationale for technology choices and 
deployment locations.
    (b) Securing the Border at Ports of Entry.
    This section requires the Secretary of Homeland Security to 
submit a comprehensive measurement system to the Committee 
within 180 days that analyzes the effectiveness of security at 
all land, air, and sea ports of entry. The measurement system 
shall take into account: infractions by major violators, 
related to personnel and cargo, apprehended by U.S. Customs and 
Border Protection; estimates of infractions by major violators, 
related to personnel and cargo, not apprehended by U.S. Customs 
and Border Protection; staffing requirements for all U.S. 
Customs and Border Protection Officers, Agricultural 
Specialists, and Canine Enforcement Officers for use in the 
detection of contraband, including agricultural products, 
drugs, currency, and explosives at such ports of entry; 
infrastructure; the use of technology, including nonintrusive 
detection equipment, radiation portal monitors, biometrics, and 
other sensors and technology as the Secretary may determine at 
such ports of entry; commercial, and passenger traffic, and 
cargo volume; and consideration of the threat environment.
    (c) Evaluation by Department of Energy National Laboratory.
    The Secretary of Homeland Security shall request the head 
of an appropriate Department of Energy National Laboratory with 
prior expertise in border security to evaluate the measurement 
system required under subsection (b) to ensure its suitability 
and statistical validity for analyzing progress for the 
interdiction of illegal crossing and contraband at ports of 
entry.
    (d) Consideration of Alternative Border Security Standards.
    If the Secretary of Homeland Security makes a determination 
to measure security between border ports of entry by a standard 
other than operational control, the Secretary shall request an 
appropriate Department of Energy National Laboratory with prior 
expertise in border security to evaluate such alternative 
standard.
    (f) Reports.
    The Secretary of Homeland Security shall submit to the 
Committee on Homeland Security of the House of Representatives 
and the Committee on Homeland Security and Governmental Affairs 
of the Senate a report that includes information on the 
resource allocation model for current and future year staffing 
requirements at all land, air, and sea ports of entry and an 
explanation of U.S. Customs and Border Protection methodology. 
Additionally, the Secretary shall submit detailed information 
on the level of manpower available at all land, air, and sea 
ports of entry.
    (g) Definitions.
    This section defines the terms appropriate ``Congressional 
Committee'', ``major violator'' and ``operational control''.

         Changes in Existing Law Made by the Bill, as Reported

    H.R. 1299 makes no changes to existing law.

                                  
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