By Anthony L. Kimery

Homeland Security Today

September 27, 2010

At the height of border enforcement officials’ concerns earlier this year over the use of ultralight aircraft by Mexico’s transnational criminal organizations (TCOs) to transport narcotics across remote areas of the border into the US, Rep. Gabrielle Giffords (D-Ariz.) and Rep. Dean Heller (R-Nev.) introduced the Ultralight Smuggling Prevention Act. Last week, with “overwhelming bipartisan support,” the House passed the legislation which closes loopholes to crack down on the TCOs’ use of the small, gasoline-powered aircraft.

“Every year hundreds of ultralights laden with illegal narcotics are flown over our Southern border,” Giffords said last week on the House floor during debate on the bill. “Ultralights are the latest weapon in the ever-expanding arsenal of the narco-terrorists, capable not only of transporting drugs, but any number of dangerous payloads.”

“The use of ultralights by drug smugglers has become more common because of their ability to fly low to the ground and take off and land quickly,” Heller added. “However, due to a loophole in current law, drug smugglers who use ultralights receive a lesser penalty than those who use airplanes or cars. This legislation will provide law enforcement with the tools they need to prosecute drug smugglers to the fullest extent of the law.”

During Homeland Security Today’s month-long investigation on the border in June and July throughout Texas, New Mexico and Arizona, numerous Border Patrol and other Customs and Border Protection (CBP) officials – as well as sheriffs of border-state counties – noted that the TCOs’ employment of ultralights to smuggle drugs had increased.

However, Mark Johnson, Director, Air Operations, Tucson Air Branch, CBP’s Office of Air and Marine, told Homeland Security Today that once CBP became aware of the uptick in flights of ultralights to transport drugs across the border, air operations in coordination with Border Patrol agents on the ground began to crack down on the flights.

“It isn’t any longer as big of a problem as it had been,” Johnson said at his Tucson office, noting, though, that the TCOs “will continue to innovate and use whatever methods of transportation they think they can get away with.”

Released earlier this year, the National Drug Intelligence Center’s (NDIC) 2010 National Drug Threat Assessment identified ultralights as one of newest ways that cartels are smuggling drugs into the United States.

Whether or not the TCOs’ use of ultralights to smuggle drugs across the border in the dead of night has been dampened by CBP’s aggressive response [CBP said the numbers of intercepted flights are down], Giffords’ legislation would provide tougher prosecutorial powers.

“This legislation will significantly increase the penalties for the use of ultralights to smuggle drugs,” the union said in a statement. “It will give law enforcement agencies an important weapon to crack down on the drug cartels’ newest method of smuggling drugs into our country. Security of the homeland requires laws that give us the authority to carry our mission and this bill addresses a serious gap in current law.”

Under the bill, individuals caught smuggling using ultralights can be prosecuted for using the aircraft in addition to being prosecuted for the drugs in their possession. When they are convicted of this new offense, they can receive a maximum sentence of 20 years in prison and a $250,000 fine. This bill will establish the same penalties for smuggling drugs on ultralights as for those who smuggle using airplanes or automobiles.

“It is time for the federal government to get ahead of these new tactics and crack down on the use of ultralights to out-maneuver our law enforcement,” Giffords said. “The Ultralight Smuggling Prevention Act is a common-sense solution that will give our law enforcement agencies and prosecutors additional tools they need to combat drug smuggling.”

The Act (HR 5307), would amend the Tariff Act of 1930 to include “ultralight vehicle” under the aviation smuggling provisions. Ultralights are not categorized as aircraft by the Federal Aviation Administration (FAA), so they do not fall under this smuggling provision.

“This legislation will go after the newest method that the drug cartels use to smuggle drugs – ultralights,” Giffords explained, pointing out that “these single-pilot aircraft are capable of flying low and can land and take off quickly. We have reports of them flying up to 200 miles into our country from Mexico.”

According to CBP’s Air and Marine Operation Center in Riverside, Calif., 193 suspected incursions and 135 confirmed incursions by ultralights took place between Oct. 1, 2009 and April 15.

But by the end of July while Homeland Security Today was on the border, Johnson said “we’ve slowed down the [TCOs’] use” of ultralights with increased aerial enforcement specifically targeted ultralight flights.

According to the NDIC’s 2010 National Drug Threat Assessment, “Mexican DTOs rely on overland transportation methods to smuggle drugs into the United States, but also use alternative methods, including “some increased use of low-flying small or ultralight aircraft, which most often are used to smuggle marijuana.”

“For example,” the assessment stated, “in the Yuma, Arizona, area, at least eight ultralight aircraft have been spotted since October 2008, after only sporadic reporting of such incidents along the entire border area in previous years. Additionally, in mid-November 2009, at least three suspected ultralight incursions were reported in New Mexico – two in Luna County and one in Hidalgo County.”

The bill received the support of many in Arizona, including Local 2544 of the National Border Patrol Council, the Tucson chapter of the union that represents more than 17,000 Border Patrol Agents and support staff.