On Tuesday, May 15, 2012, the House is scheduled to consider H.R. 4119, the Border Tunnel Prevention Act of 2012, under a suspension of the rules requiring a two-thirds majority for approval.  The bill was originally introduced on March 1, 2011, by Rep. Silvestre Reyes (D-TX) and was referred to the Committee on the Judiciary.

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.  H.R. 4119 would amend the Federal criminal code to do the following:

(1)   Subject anyone who attempts or conspires to construct or finance construction of an unauthorized tunnel or subterranean passage that crosses the international border between the United States and another country, or to use such a tunnel for smuggling, to the penalties prescribed for someone who commits such an offense;

(2)   Make such a border tunnel offense a predicate offense for a money laundering violation and for authorization for interception of wire, oral, or electronic communications; and

(3)   Provide for the criminal forfeiture of proceeds of such an offense and the seizure and forfeiture of merchandise introduced into the United States through such a tunnel.

The bill would express the sense of Congress that:

(1)   “Success in combating the construction and use of cross-border tunnels requires cooperation between Federal, State, local, and tribal officials and assistance from private land owners and tenants across the border between Mexico and the United States;

(2)   “The Department of Homeland Security is currently engaging in outreach efforts in California to certain landowners and tenants along the border to educate them about cross-border tunnels and seek their assistance in combating their construction; and

(3)   “The Department should continue its outreach efforts to both private and governmental landowners and tenants in areas along the border between Mexico and the United States with a high rate of cross-border tunnels.”

H.R. 4119 would require the Secretary of Homeland Security to submit an annual report describing across-border tunnels along the U.S.-Mexico border discovered during the preceding fiscal year; and the needs of DHS to effectively prevent, investigate, and prosecute construction of such tunnels.

According to the Committee on the Judiciary House Report 112-418, 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.

According to the Congressional Budget Office (CBO), 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.