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[House Report 112-418]
[From the U.S. Government Publishing Office]

112th Congress                                            Rept. 112-418
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

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                  BORDER TUNNEL PREVENTION ACT OF 2012

                                _______
                                

 March 21, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 4119]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4119) to reduce the trafficking of drugs and to 
prevent human smuggling across the Southwest Border by 
deterring the construction and use of border tunnels, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     2
Committee Consideration..........................................     2
Committee Votes..................................................     2
Committee Oversight Findings.....................................     3
New Budget Authority and Tax Expenditures........................     3
Congressional Budget Office Cost Estimate........................     3
Performance Goals and Objectives.................................     4
Advisory on Earmarks.............................................     4
Section-by-Section Analysis......................................     4
Changes in Existing Law Made by the Bill, as Reported............     5

                          Purpose and Summary

    H.R. 4119 makes certain enhancements to Title 18, United 
States Code, Section 555 which criminalizes the construction, 
financing and use of unauthorized tunnels or subterranean 
passages across the U.S. border. The legislation prescribes the 
penalty for attempt or conspiracy to use, construct or finance 
a cross-border tunnel. It also identifies the construction, 
financing or use of a cross-border tunnel as a predicate 
offense for a charge of money laundering and for an application 
for judicial authorization to intercept wire, oral or 
electronic communications. H.R. 4119 allows the criminal or 
civil forfeiture of merchandise entering the United States 
through a cross-border tunnel and requires the submission of 
certain annual reports from the Secretary of Homeland Security 
to certain congressional committees.

                Background and Need for the Legislation

    Reports of drug smuggling tunnels have increased, 
particularly in the past 10 years. Drug traffickers have 
increased their use of subterranean smuggling in light of 
increased border security, either real or perceived. Mexican 
drug trafficking organizations have used tunnels as a smuggling 
method since at least 1990.
    A majority of cross-border tunnels continue to be found in 
California and Arizona. These tunnels range in sophistication 
from a simple 16-inch pipe to well-engineered tunnels equipped 
with electricity, ventilation, and rails. When evidence exists, 
ownership of the tunnels is often attributed to the Mexican 
drug cartels.
    To combat cross-border tunnels, U.S. agents use a range of 
devices from ground-penetrating radar to seismic sensors to 
find and destroy them. But despite these efforts, drug 
smugglers continue to build the tunnels, often spending $1 
million to dig a single pathway equipped with lighting, 
ventilation, water pumps, and hydraulic elevators. Traffickers 
frequently install a rail system to transit mining carts, each 
loaded with hundreds of pounds of marijuana or other contraband 
in airtight sealed packages.
    In November 2011, Federal law enforcement agents shut down 
two sophisticated tunnels that led from an area near Tijuana's 
airport to an industrial park on the U.S. side. About 49 tons 
of marijuana were seized. Drug traffickers have also become 
skilled at setting up front companies to rent space in busy 
warehouse districts in the U.S. Mining engineers and architects 
are employed to construct the tunnel and bore directly into the 
foundation of the front company's rented warehouse.
    Although cross-border tunnels represent a million-dollar 
investment, that investment is often recouped during the first 
transit of drugs and other contraband. Border tunnels are an 
unfortunate testament to the ingenuity and determination of the 
Mexican drug cartels.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
4119.

                        Committee Consideration

    On March 6, 2012, the Committee met in open session and 
ordered the bill H.R. 4119 favorably reported without 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 4119.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4119, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 12, 2012.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4119, the ``Border 
Tunnel Prevention Act of 2012.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member

            H.R. 4119--Border Tunnel Prevention Act of 2012.

    As ordered reported by the House Committee on the Judiciary on 
                             March 6, 2012

    CBO estimates that implementing H.R. 4119 would have no 
significant cost to the Federal Government. Enacting the bill 
could affect direct spending and revenues; therefore, pay-as-
you-go procedures apply. However, CBO estimates that any 
effects would be insignificant for each year.
    H.R. 4119 would establish a new Federal crime relating to 
the unlawful construction or use of an underground tunnel 
between the United States and other countries. As a result, the 
government might be able to pursue criminal cases that it 
otherwise would not be able to prosecute. CBO expects that H.R. 
4119 would apply to a relatively small number of additional 
offenders, however, so any increase in costs for law 
enforcement, court proceedings, or prison operations would not 
be significant. Any such costs would be subject to the 
availability of appropriated funds.
    In addition, H.R. 4119 would require the Department of 
Homeland Security (DHS) to submit annual reports to the 
Congress relating to investigations of unlawful tunnels between 
Mexico and the United States. Based on the costs of similar 
activities, CBO estimates that preparing the reports would not 
significantly affect DHS spending from appropriated funds.
    Because those prosecuted and convicted under H.R. 4119 
could be subject to criminal fines, the Federal Government 
might collect additional fines if the legislation is enacted. 
Criminal fines are recorded as revenues, deposited in the Crime 
Victims Fund, and later spent. CBO expects that any additional 
revenues and direct spending would not be significant because 
of the small number of cases likely to be affected.
    H.R. 4119 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 January 5, 2012, CBO transmitted a cost estimate for S. 
1236, the Border Tunnel Prevention Act of 2011, as reported by 
the Senate Committee on the Judiciary on December 15, 2011. The 
two bills are similar, and the cost estimates are the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
4119 makes certain enhancements to Title 18, United States 
Code, Section 555 which criminalizes the construction, 
financing and use of unauthorized tunnels or subterranean 
passages across the U.S. border.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 4119 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Sec. 1: Short Title
    Section 1 provides that the short title of H.R. 4119 is the 
``Border Tunnel Prevention Act of 2012.''
Sec. 2: Findings
    Section 2 declares certain findings of Congress. These 
findings include 1) drug trafficking and smuggling 
organizations are increasing their use of cross-border tunnels 
to transport narcotics, people and other contraband, 2) there 
has been a significant increase in cross-border tunnels 
discovered by law enforcement, particularly over the past 10 
years and particularly in Arizona and California, and 3) 18 
U.S.C. Section 555, criminalizing the construction, financing 
and use of cross-border tunnels is the foundation for this 
legislation.
Sec. 3: Attempt or Conspiracy to Use, Construct, or Finance a Border 
        Tunnel
    Section 3 prescribes the penalty for attempt or conspiracy 
to use, construct or finance a cross-border tunnel as the same 
as those for the offense itself.
Sec. 4: Authorization for Interception of Wire, Oral, or Electronic 
        Communications
    Section 4 permits the interception of wire, oral or 
electronic communications during the investigation of 
construction or use of cross-border tunnels.
Sec. 5: Forfeiture
    Section 5 allows the criminal or civil forfeiture of 
merchandise entering the United States through a cross-border 
tunnel.
Sec. 6: Money Laundering Designation
    Section 6 identifies the construction, financing or use of 
a cross-border tunnel as a predicate offense for a charge of 
money laundering.
Sec. 7: Sense of Congress
    Section 7 declares that the success in combating cross-
borders tunnels requires the cooperation of federal, state, 
local and tribal officials, and private land owners and their 
tenants. The Department of Homeland Security is currently 
engaged in and should continue its outreach efforts to combat 
cross-border tunnels.
Sec. 8: Report
    Section 8 requires the submission of certain annual reports 
from the Secretary of Homeland Security to certain 
congressional committees.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

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PART I--CRIMES

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CHAPTER 27--CUSTOMS

           *       *       *       *       *       *       *

Sec. 555. Border tunnels and passages

  (a) * * *

           *       *       *       *       *       *       *

  (d) Any person who attempts or conspires to commit any 
offense under subsection (a) or subsection (c) of 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.

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CHAPTER 46--FORFEITURE

           *       *       *       *       *       *       *

Sec. 982. Criminal forfeiture

  (a)(1) * * *
  (2) The court, in imposing sentence on a person convicted of 
a violation of, or a conspiracy to violate--
          (A) * * *
          (B) section 471, 472, 473, 474, 476, 477, 478, 479, 
        480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 
        555, 842, 844, 1028, 1029, or 1030 of this title,
shall order that the person forfeit to the United States any 
property constituting, or derived from, proceeds the person 
obtained directly or indirectly, as the result of such 
violation.

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CHAPTER 95--RACKETEERING

           *       *       *       *       *       *       *

Sec. 1956. Laundering of monetary instruments

  (a) * * *

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  (c) As used in this section--
          (1) * * *

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          (7) the term ``specified unlawful activity'' means--
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) an offense under section 32 (relating to 
                the destruction of aircraft), section 37 
                (relating to violence at international 
                airports), section 115 (relating to 
                influencing, impeding, or retaliating against a 
                Federal official by threatening or injuring a 
                family member), section 152 (relating to 
                concealment of assets; false oaths and claims; 
                bribery), section 175c (relating to the variola 
                virus), section 215 (relating to commissions or 
                gifts for procuring loans), section 351 
                (relating to congressional or Cabinet officer 
                assassination), any of sections 500 through 503 
                (relating to certain counterfeiting offenses), 
                section 513 (relating to securities of States 
                and private entities), section 541 (relating to 
                goods falsely classified), section 542 relating 
                to entry of goods by means of false 
                statements), section 545 (relating to smuggling 
                goods into the United States), section 549 
                (relating to removing goods from Customs 
                custody), section 554 (relating to smuggling 
                goods from the United States), section 555 
                (relating to border tunnels), section 641 
                (relating to public money, property, or 
                records), section 656 (relating to theft, 
                embezzlement, or misapplication by bank officer 
                or employee), section 657 (relating to lending, 
                credit, and insurance institutions), section 
                658 (relating to property mortgaged or pledged 
                to farm credit agencies), section 666 (relating 
                to theft or bribery concerning programs 
                receiving Federal funds), section 793, 794, or 
                798 (relating to espionage), section 831 
                (relating to prohibited transactions involving 
                nuclear materials), section 844 (f) or (i) 
                (relating to destruction by explosives or fire 
                of Government property or property affecting 
                interstate or foreign commerce), section 875 
                (relating to interstate communications), 
                section 922(1) (relating to the unlawful 
                importation of firearms), section 924(n) 
                (relating to firearms trafficking), section 956 
                (relating to conspiracy to kill, kidnap, maim, 
                or injure certain property in a foreign 
                country), section 1005 (relating to fraudulent 
                bank entries), 1006 (relating to fraudulent 
                Federal credit institution entries), 1007 
                (relating to Federal Deposit Insurance 
                transactions), 1014 (relating to fraudulent 
                loan or credit applications), section 1030 
                (relating to computer fraud and abuse), 1032 
                (relating to concealment of assets from 
                conservator, receiver, or liquidating agent of 
                financial institution), section 1111 (relating 
                to murder), section 1114 (relating to murder of 
                United States law enforcement officials), 
                section 1116 (relating to murder of foreign 
                officials, official guests, or internationally 
                protected persons), section 1201 (relating to 
                kidnaping), section 1203 (relating to hostage 
                taking), section 1361 (relating to willful 
                injury of Government property), section 1363 
                (relating to destruction of property within the 
                special maritime and territorial jurisdiction), 
                section 1708 (theft from the mail), section 
                1751 (relating to Presidential assassination), 
                section 2113 or 2114 (relating to bank and 
                postal robbery and theft), section 2252A 
                (relating to child pornography) where the child 
                pornography contains a visual depiction of an 
                actual minor engaging in sexually explicit 
                conduct, section 2260 (production of certain 
                child pornography for importation into the 
                United States), section 2280 (relating to 
                violence against maritime navigation), section 
                2281 (relating to violence against maritime 
                fixed platforms), section 2319 (relating to 
                copyright infringement), section 2320 (relating 
                to trafficking in counterfeit goods and 
                services), section 2332 (relating to terrorist 
                acts abroad against United States nationals), 
                section 2332a (relating to use of weapons of 
                mass destruction), section 2332b (relating to 
                international terrorist acts transcending 
                national boundaries), section 2332g (relating 
                to missile systems designed to destroy 
                aircraft), section 2332h (relating to 
                radiological dispersal devices), section 2339A 
                or 2339B (relating to providing material 
                support to terrorists), section 2339C (relating 
                to financing of terrorism), or section 2339D 
                (relating to receiving military-type training 
                from a foreign terrorist organization) of this 
                title, section 46502 of title 49, United States 
                Code, a felony violation of the Chemical 
                Diversion and Trafficking Act of 1988 (relating 
                to precursor and essential chemicals), section 
                590 of the Tariff Act of 1930 (19 U.S.C. 1590) 
                (relating to aviation smuggling), section 422 
                of the Controlled Substances Act (relating to 
                transportation of drug paraphernalia), section 
                38(c) (relating to criminal violations) of the 
                Arms Export Control Act, section 11 (relating 
                to violations) of the Export Administration Act 
                of 1979, section 206 (relating to penalties) of 
                the International Emergency Economic Powers 
                Act, section 16 (relating to offenses and 
                punishment) of the Trading with the Enemy Act, 
                any felony violation of section 15 of the Food 
                and Nutrition Act of 2008 (relating to 
                supplemental nutrition assistance program 
                benefits fraud) involving a quantity of 
                benefits having a value of not less than 
                $5,000, any violation of section 543(a)(1) of 
                the Housing Act of 1949 (relating to equity 
                skimming), any felony violation of the Foreign 
                Agents Registration Act of 1938, any felony 
                violation of the Foreign Corrupt Practices Act, 
                or section 92 of the Atomic Energy Act of 1954 
                (42 U.S.C. 2122) (relating to prohibitions 
                governing atomic weapons)

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   CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND 
INTERCEPTION OF ORAL COMMUNICATIONS

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Sec. 2516. Authorization for interception of wire, oral, or electronic 
                    communications

  (1) The Attorney General, Deputy Attorney General, Associate 
Attorney General, or any Assistant Attorney General, any acting 
Assistant Attorney General, or any Deputy Assistant Attorney 
General or acting Deputy Assistant Attorney General in the 
Criminal Division or National Security Division specially 
designated by the Attorney General, may authorize an 
application to a Federal judge of competent jurisdiction for, 
and such judge may grant in conformity with section 2518 of 
this chapter an order authorizing or approving the interception 
of wire or oral communications by the Federal Bureau of 
Investigation, or a Federal agency having responsibility for 
the investigation of the offense as to which the application is 
made, when such interception may provide or has provided 
evidence of--
          (a) * * *

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          (c) any offense which is punishable under the 
        following sections of this title: section 37 (relating 
        to violence at international airports), section 43 
        (relating to animal enterprise terrorism), section 81 
        (arson within special maritime and territorial 
        jurisdiction), section 201 (bribery of public officials 
        and witnesses), section 215 (relating to bribery of 
        bank officials), section 224 (bribery in sporting 
        contests), subsection (d), (e), (f), (g), (h), or (i) 
        of section 844 (unlawful use of explosives), section 
        1032 (relating to concealment of assets), section 1084 
        (transmission of wagering information), section 751 
        (relating to escape), section 832 (relating to nuclear 
        and weapons of mass destruction threats), section 842 
        (relating to explosive materials), section 930 
        (relating to possession of weapons in Federal 
        facilities), section 1014 (relating to loans and credit 
        applications generally; renewals and discounts), 
        section 1114 (relating to officers and employees of the 
        United States), section 1116 (relating to protection of 
        foreign officials),``after''section 1014 (relating to 
        loans and credit applications generally; renewals and 
        discounts), sections 1503, 1512, and 1513 (influencing 
        or injuring an officer, juror, or witness generally), 
        section 1510 (obstruction of criminal investigations), 
        section 1511 (obstruction of State or local law 
        enforcement), section 1591 (sex trafficking of children 
        by force, fraud, or coercion), section 1751 
        (Presidential and Presidential staff assassination, 
        kidnapping, and assault), section 1951 (interference 
        with commerce by threats or violence), section 1952 
        (interstate and foreign travel or transportation in aid 
        of racketeering enterprises), section 1958 (relating to 
        use of interstate commerce facilities in the commission 
        of murder for hire), section 1959 (relating to violent 
        crimes in aid of racketeering activity), section 1954 
        (offer, acceptance, or solicitation to influence 
        operations of employee benefit plan), section 1955 
        (prohibition of business enterprises of gambling), 
        section 1956 (laundering of monetary instruments), 
        section 1957 (relating to engaging in monetary 
        transactions in property derived from specified 
        unlawful activity), section 659 (theft from interstate 
        shipment), section 664 (embezzlement from pension and 
        welfare funds), section 1343 (fraud by wire, radio, or 
        television), section 1344 (relating to bank fraud), 
        section 1992 (relating to terrorist attacks against 
        mass transportation), sections 2251 and 2252 (sexual 
        exploitation of children), section 2251A (selling or 
        buying of children), section 2252A (relating to 
        material constituting or containing child pornography), 
        section 1466A (relating to child obscenity), section 
        2260 (production of sexually explicit depictions of a 
        minor for importation into the United States), sections 
        2421, 2422, 2423, and 2425 (relating to transportation 
        for illegal sexual activity and related crimes), 
        sections 2312, 2313, 2314, and 2315 (interstate 
        transportation of stolen property), section 2321 
        (relating to trafficking in certain motor vehicles or 
        motor vehicle parts), section 2340A (relating to 
        torture), section 1203 (relating to hostage taking), 
        section 1029 (relating to fraud and related activity in 
        connection with access devices), section 3146 (relating 
        to penalty for failure to appear), section 3521(b)(3) 
        (relating to witness relocation and assistance), 
        section 32 (relating to destruction of aircraft or 
        aircraft facilities), section 38 (relating to aircraft 
        parts fraud), section 1963 (violations with respect to 
        racketeer influenced and corrupt organizations), 
        section 115 (relating to threatening or retaliating 
        against a Federal official), section 1341 (relating to 
        mail fraud), a felony violation of section 1030 
        (relating to computer fraud and abuse), section 351 
        (violations with respect to congressional, Cabinet, or 
        Supreme Court assassinations, kidnapping, and assault), 
        section 831 (relating to prohibited transactions 
        involving nuclear materials), section 33 (relating to 
        destruction of motor vehicles or motor vehicle 
        facilities), section 175 (relating to biological 
        weapons), section 175c (relating to variola virus) 
        section 956 (conspiracy to harm persons or property 
        overseas),, section a felony violation of section 1028 
        (relating to production of false identification 
        documentation), section 1425 (relating to the 
        procurement of citizenship or nationalization 
        unlawfully), section 1426 (relating to the reproduction 
        of naturalization or citizenship papers), section 1427 
        (relating to the sale of naturalization or citizenship 
        papers), section 1541 (relating to passport issuance 
        without authority), section 1542 (relating to false 
        statements in passport applications), section 1543 
        (relating to forgery or false use of passports), 
        section 1544 (relating to misuse of passports), or 
        section 1546 (relating to fraud and misuse of visas, 
        permits, and other documents), section 555 (relating to 
        construction or use of international border tunnels);

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