I 117th CONGRESS 1st Session H. R. 2321 IN THE HOUSE OF REPRESENTATIVES April 1, 2021 Mr. Katko (for himself, Mr. Cuellar , Mr. McCaul , Mr. Higgins of Louisiana , Mr. Guest , Mr. Van Drew , Mr. Norman , Mrs. Harshbarger , Mr. Gimenez , Mrs. Miller-Meeks , Mrs. Cammack , Mr. LaTurner , Mr. Garbarino , Mr. Clyde , and Mr. Meijer ) introduced the following bill; which was referred to the Committee on Homeland Security A BILL To direct the Secretary of Homeland Security to establish a plan to respond to irregular migration surges at the border, to establish an irregular migration surge border response fund, and for other purposes.

1. Short title This Act may be cited as the Border Surge Response and Resilience Act . 2. Irregular migration surge border response plan and fund (a) In general Subtitle C of title IV of the Homeland Security Act of 2002 ( 6 U.S.C. 231 et seq.) is amended by adding at the end the following new section: 437. Irregular migration surge border response plan and fund (a) Response plan (1) In general The Secretary, in coordination with the heads of appropriate Federal agencies, shall develop a plan to respond to irregular migration surges at the border that present risks to border security (referred to in this section as the Response Plan ). (2) Elements The Response Plan shall include the following: (A) The identification of— (i) each agency, component, and office participating in the Response Plan; and (ii) the role, chain of command, and responsibilities, including minimum acceptable response times, of each such entity identified pursuant to clause (i). (B) A strategy to— (i) enhance security and reinforce infrastructure of the Department along the border; (ii) maximize the use of Border Patrol Processing Coordinators to assist with processing individuals in the custody of the Department at the border; and (iii) conduct streamlined screening and processing procedures of individuals in the custody of the Department at the border without diminishing security measures or normally conducted checks during such procedures. (C) A process to— (i) identify needed personnel and detail such personnel to the border; (ii) request interagency assistance for the border; (iii) quickly expand temporary processing and holding capacity to respond to an irregular migration surge at the border; and (iv) track and keep the Secretary informed of the metrics identified in subsection (c). (D) Policies and procedures to ensure timely communication and coordination between relevant agencies relating to— (i) the capacity of Department border facilities; and (ii) transferring individuals at the border in the custody of the Department within the Department or to other agencies. (E) A process to initiate and conduct an after-action review of the efforts of the Department in response to an irregular migration surge at the border. (F) A strategy to ensure any individual at the border in the custody of the Department is not released into the United States during a public health emergency, if any such individual has a communicable disease relating to the public health emergency. (G) A strategy to inform and coordinate, for the purposes of public safety, any release of individuals at the border from the custody of the Department with the appropriate State, Tribal, and local governments, non-governmental organizations, and relevant transportation companies. (H) A regularly updated intelligence driven analysis that includes— (i) trends at the border with respect to demographics and group size that could contribute to overcrowding of CBP border facilities; (ii) migrant perceptions of United States law and policy at the border, including human smuggling organization messaging and propaganda; (iii) tactics, techniques, and procedures used by human smuggling organizations to exploit border security vulnerabilities to facilitate such smuggling activities across the border; (iv) a consideration of historical apprehension recidivism rates and any fluctuation with respect to such rates; (v) the methods and use of technology to organize and encourage irregular migration and undermine border security; and (vi) any other information the Secretary determines appropriate. (b) Department coordination (1) Partnerships The Secretary shall direct the participants in the Response Plan of the Department to enter into necessary and appropriate memoranda of understanding or other appropriate agreements, to be periodically updated, to carry out the requirements of this section. (2) Ongoing intelligence analysis The Secretary shall identify and implement the appropriate process to coordinate information sharing between the Office of Intelligence and Analysis, CBP, ICE, and any other appropriate agency in preparation for or during an irregular migration surge at the border to assess the estimated number of individuals traveling to the United States border outside of standard trade and travel routes. (3) Communication The Secretary shall identify the most appropriate communication structure to ensure immediate and continued success of the Response Plan. (c) Response Plan activation (1) Threshold identification and activation The Secretary shall— (A) identify metric thresholds required to activate the Response Plan; and (B) activate the Response Plan when such thresholds are satisfied. (2) Elements The metric thresholds to be considered by the Secretary pursuant to paragraph (1) include the following: (A) The average amount of time an individual at the border is in the custody of CBP, disaggregated by whether such individual is a single adult, a member of a family unit, or an unaccompanied alien child. (B) The total percentage of individuals at the border in the custody of the Department with respect to capacity, disaggregated by— (i) field office or sector; and (ii) whether such an individual in the custody of the Department is a single adult, a member of a family unit, or an unaccompanied alien child. (C) The total percentage of individuals in the custody of a partner agency with respect to capacity, disaggregated by each facility holding such individuals. (D) The estimated number of individuals traveling to the United States border outside of standard trade and travel routes as determined by intelligence and other sources. (E) Any other such threshold the Secretary determines appropriate. (3) Notifications to Congress (A) In general Not later than 45 days after the date of the enactment of this Act, the Secretary shall notify the appropriate congressional committees of the finalization of the metric thresholds required under paragraph (1)(A). (B) Updating metric thresholds Not later than 14 days after the Secretary updates such metric thresholds, the Secretary shall notify the appropriate congressional committees of such update. (d) After-Action review The Secretary shall develop a process, including policies and procedures, to initiate and conduct an after-action review of the efforts of the Department in response to an irregular migration surge at the border that presents risks to border security. The review shall— (1) be conducted at the conclusion of such a surge in which the Response Plan has been activated by the Secretary; and (2) include a consideration of any necessary changes, including allocation of resources and changes in authority, law, or policy to improve the ability of the Department to respond to future irregular migration surges at the border and mititgate the risks to border security from such surges. (e) Updating response plan The Secretary shall— (1) periodically update the Response Plan and the appropriate metric thresholds to activate the Response Plan; and (2) consider the most recent action-after review required under subsection (d) for such an update. (f) Briefing to Congress If the Secretary activates the Response Plan pursuant to subsection (c)(1)(B), not later than 14 days after such activation, the Secretary shall— (1) brief the appropriate congressional committees with respect to such activation; and (2) include with such briefing an assessment with respect to whether there is a need to obligate and expend amounts available from the Irregular Migration Surge Border Response Fund, established pursuant to subsection (g). (g) Irregular migration surge border response fund (1) Creation of fund There is established in the Treasury of the United States a fund to be known as the Irregular Migration Surge Border Response Fund (referred to in this section referred to as the Fund ), consisting of amounts appropriated pursuant to the authorization of appropriations in paragraph (4). (2) Investment of amounts (A) In general The Secretary of the Treasury shall invest such portion of the Fund as is not required to meet current withdrawals in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. (B) Interest and proceeds The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to and form a part of the Fund. (3) Use of funds (A) In general The Secretary may only obligate and expend amounts available in the Fund— (i) if the Secretary activates the Response Plan pursuant to subsection (a)(4)(A); and (ii) for the purposes described in subparagraph (B). (B) Purposes The purposes described in this subparagraph are the following: (i) Replenishing the depletion of consumables, personal protective equipment, medical supplies and equipment, transportation equipment, and personnel overtime funds. (ii) Expanding temporary Department processing capacity, long-term holding capacity, and transportation services for individuals at the border in the custody of the Department or partner agencies. (iii) Ensuring timely communication and transportation between the agencies of the Department, or with partner agencies, with respect to the transfer of individuals at the border in the custody of the Department. (iv) Requesting interagency assistance and detailing Department personnel in order to respond to an irregular migration surge. (4) Remaining amounts (A) In general Amounts in the Fund shall remain available until expended. (B) Exception Amounts remaining in the Fund at the end of fiscal year 2025 shall be returned to the general fund of the Treasury. (5) Authorization of appropriations There are authorized to be appropriated to the Irregular Migration Surge Border Response Fund $1,000,000,000 in fiscal year 2022 and such sums as are necessary to maintain a balance of $1,000,000,000 for each fiscal year from 2022 through 2025. (h) Definitions In this section: (1) Appropriate congressional committees The term appropriate congressional committees means— (A) the Committee on Homeland Security of the House of Representatives; and (B) the Committee on Homeland Security and Governmental Affairs of the Senate. (2) Border The term border means the international land borders of the United States. (3) CBP The term CBP means U.S. Customs and Border Protection. (4) ICE The term ICE means U.S. Immigration and Customs Enforcement. (5) Irregular migration surge The term irregular migration surge means a significant increase or a sustained large number of Department encounters with individuals at the border that— (A) do not use the formal immigration system of countries they are traveling through; and (B) are traveling to, or attempting to enter, the United States illegally. (6) Public health emergency The term public health emergency means a public health emergency declared by the Secretary of Health and Human Services pursuant to section 319 of the Public Health Service Act ( 42 U.S.C. 247d ). . (b) Clerical amendment The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 436 the following new item: Sec. 437. Irregular Migration Surge Border Response Plan and Fund. .