[Senate Report 114-180]
[From the U.S. Government Publishing Office]
Calendar No. 324
114th Congress } { Report
1st Session } SENATE { 114-180
_______________________________________________________________________
PRECLEARANCE AUTHORIZATION ACT OF 2015
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
H.R. 998
TO ESTABLISH THE CONDITIONS UNDER WHICH THE SECRETARY
OF HOMELAND SECURITY MAY ESTABLISH PRECLEARANCE
FACILITIES, CONDUCT PRECLEARANCE OPERATIONS, AND
PROVIDE CUSTOMS SERVICES OUTSIDE THE UNITED STATES, AND FOR OTHER
PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 15, 2015.--Ordered to be printed
___________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2015
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Christopher R. Hixon, Chief Counsel
David S. Luckey, Director of Homeland Security
William H.W. McKenna, Chief Counsel for Homeland Security
Brooke N. Ericson, Deputy Chief Counsel for Homeland Security
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
Holly A. Idelson, Minority Senior Counsel
Stephen R. Vina, Minority Chief Counsel for Homeland Security
Laura W. Kilbride, Chief Clerk
Calendar No. 324
114th Congress Report
SENATE
1st Session 114-180
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PRECLEARANCE AUTHORIZATION ACT OF 2015
_______
December 15, 2015.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 998]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 998), to
establish the conditions under which the Secretary of Homeland
Security may establish preclearance facilities, conduct
preclearance operations, and provide customs services outside
the United States, and for other purposes, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................5
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Act, as Reported.............8
I. Purpose and Summary
The purpose of H.R. 998, the Preclearance Authorization Act
of 2015, is to authorize the operation and expansion of United
States Customs and Border Protection (CBP) preclearance
operations abroad. Preclearance operations, under which
passengers and their luggage undergo screening by CBP officers
prior to boarding a U.S.-bound flight, have been in place in
some foreign airports for years and DHS is currently seeking to
expand the program. This act would establish certain guidelines
for the program to help capture the benefits of the program
without jeopardizing security or negatively impacting screening
at U.S. ports of entry and provide for enhanced congressional
oversight. First, the act directs the Secretary of the
Department of Homeland Security (DHS or ``the Department'') to
certify that new or modified preclearance operations in foreign
airports do not negatively affect CBP processing times in
domestic ports of entry. Second, the act requires foreign
governments with a preclearance agreement with the United
States to routinely submit information about lost and stolen
passports of its citizens and nationals to INTERPOL's Stolen
and Lost Travel Document database or make such information
available to the United States. Third, the act authorizes CBP
to enter into cost-sharing agreements to cover operational
costs, preparing the agency for current and future processing
and security screening demands.
II. Background and the Need for Legislation
Under Federal law, CBP has primary responsibility for
determining a traveler's admissibility into the United
States.\1\ To intercept potentially inadmissible travelers
before they enter the United States and facilitate processing
for all passengers, the United States operates a number of
preclearance facilities at airports in foreign countries.
According to DHS, ``[p]reclearance is the process by which CBP
officers stationed abroad screen and make admissibility
decisions about passengers and their accompanying goods or
baggage heading to the U.S. before they leave a foreign
port.''\2\ By deploying over 600 customs, immigration, and
agriculture specialists to foreign airports, CBP is able to
conduct interviews to determine admissibility, capture
biometric information for vetting purposes, and thoroughly
inspect passengers to prevent terrorists and criminals from
boarding planes to the United States.\3\ Once a traveler
arrives in the United States, they can proceed directly to
their destination or connecting flight without further
inspection.
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\1\U.S. Customs and Border Protection, At Ports of Entry, http://
www.cbp.gov/border-security/ports-entry.
\2\U.S. Customs and Border Protection, Preclearance Locations,
http://www.cbp.gov/border-security/ports-entry/operations/preclearance.
\3\U.S. Customs and Border Protection, Current Preclearance
Operations: Fiscal Year 2015 Report to Congress 2 (2015), [hereinafter
Current Preclearance Operations].
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Preclearance facilities are established by a formal
agreement between the United States and the host country. CBP
currently covers the staffing and operational costs of the
program, with the exception of the preclearance facility at Abu
Dhabi airport. For the Abu Dhabi preclearance program, the host
facility pays most of the operational costs as well.
DHS asserts that by intercepting 10,624 inadmissible
individuals at preclearance locations during F.Y. 2014, CBP
saved taxpayers approximately $26.7 million in detention and
processing costs.\4\ The program also has value in deterring
smugglers and prospective terrorists by requiring advanced
security screening abroad. For example, the attempted terrorist
attack on Northwest Airlines Flight 253 from Amsterdam to
Detroit on December 25, 2009 and similar incidents, demonstrate
that terrorists have sought to carry out attacks on U.S.-bound
aircraft before arrival in the United States. In addition,
preclearance can intercept dangerous pests that represent a
significant threat to the American economy.\5\
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\4\Id.
\5\Current Preclearance Operations, supra note 3, at 5.
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Preclearance also has economic benefits. Preclearance
operations expedite passenger processing at United States
airports by reducing the number of passengers that must be
screened once a U.S.-bound flight lands. This not only saves
passengers' time, but can be more efficient for CBP because it
takes advantage of staggered arrival times at foreign airports
rather than having to screen an entire planeload of passengers
at once upon arrival.
History & Future of the Preclearance Program
CBP established its first preclearance operation in
Toronto, Canada in 1952.\6\ Currently, CBP conducts
preclearance inspections at 15 different airports in Aruba,
Bermuda, the Bahamas, Canada, Ireland and, most recently, in
the United Arab Emirates (UAE).\7\ In F.Y. 2014, CBP precleared
15.3 percent of all travelers flying on commercial airlines to
the United States.\8\ CBP plans to expand preclearance to reach
33 percent of all passengers traveling to the United States by
2024.\9\
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\6\Id. at 2.
\7\U.S. Customs and Border Protection, Preclearance Locations,
http://www.cbp.gov/border-security/ports-entry/operations/preclearance
(last visited Dec. 1, 2015).
\8\Current Preclearance Operations, supra note 3, at 2.
\9\Id. at 6.
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On May 29, 2015, DHS Secretary Johnson announced the United
States' intention ``to enter into negotiations to expand air
preclearance options to ten new foreign airports, located in
nine separate countries: Belgium, the Dominican Republic,
Japan, the Netherlands, Norway, Spain, Sweden, Turkey, and the
United Kingdom.''\10\ CBP coordinated with the Transportation
Security Administration (TSA) and the State Department to
identify these new airports ``and prioritized them based on the
greatest potential to support security and travel
facilitation.''\11\ Last year, approximately 20 million
passengers traveled to the United States from these 10
airports.\12\
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\10\Press Release, supra note 3. The 10 airports are: Brussels
Airport, Belgium; Punta Cana Airport, Dominican Republic; Narita
International Airport, Japan; Amsterdam Airport Schipol, Netherlands;
Oslo Airport, Norway; Madrid-Barajas Airport, Spain; Stockholm Arlanda
Airport, Sweden; Istanbul Ataturk Airport, Turkey; London Heathrow
Airport, Manchester Airport, UK. Id.
\11\Id.
\12\Id.
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Concerns Regarding the Preclearance Program
DHS maintains that preclearance operations help enhance
national security by extending the United States' virtual
border to the last point of departure.\13\ However, to obtain
some of the security benefits, foreign airports have to
implement sound passenger security screening comparable to what
TSA officers provide at domestic U.S. airports. That has not
always been the case. In 2011, for example, the Government
Accountability Office (GAO) reported that TSA identified
serious security vulnerabilities at a number of foreign
airports, particularly in access control and passenger and
baggage screening.\14\ While DHS and GAO have not publicly
stated whether any of the airports identified in the report are
currently or slated to become preclearance airports, it is
clear that serious security vulnerabilities exist at some
airports abroad and those must be fixed if we are to rely on
their screening at those airports in lieu of domestic
screening.
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\13\Current Preclearance Operations, supra note 3, at 5-6.
\14\Gov't Accountability Office, GAO-12-163, Aviation Security: TSA
has Taken Steps to Enhance Its Foreign Airport Assessments, but
Opportunities Exist to Strengthen the Program passim (2011), available
at, http://www.gao.gov/assets/590/585868.pdf.
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In a more recent example, several Members of Congress
expressed concern in 2013 with DHS's decision to conduct
preclearance operations at Abu Dhabi airport in the United Arab
Emirates.\15\ CBP commenced operations in January 2014 without
first having the TSA Administrator certify that the airport had
United States-equivalent security screening procedures in place
or addressing the competitive impact on United States carriers,
as CBP selected an airport where U.S. carriers had no
operations.\16\
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\15\See The Abu Dhabi Pre-Clearance Facility: Implications for U.S.
Businesses and National Security: Hearing Before the House SubComm. on
Terrorism, Nonproliferation, and Trade of the Comm. on Foreign Affairs,
113th Cong (2013); see also Seghetti, supra note 5 at 11-12 (2015).
\16\See id.
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This legislation seeks to ensure adequate security measures
are in place, and also requires advance congressional
notification of preclearance plans and negotiations to ensure
that any security or economic concerns are identified and
addressed.
Proposed Legislation
The Preclearance Authorization Act of 2015 would authorize
and expedite expansion of the preclearance program while
strengthening Congressional oversight. DHS Secretary Johnson
recently explained, and the Committee agrees, that authorizing
the program is an important step Congress can take to
strengthen homeland security after the deadly Paris attacks in
November 2015.\17\ While there is strong support to expand
preclearance operations to enhance national security and meet
increasing immigration and customs processing demands, the
Secretary's intent to expand the program also makes it that
much more important to conduct proper oversight to ensure that
security checks are not neglected. This act would do both--
authorize the program while strengthening Congressional
oversight of preclearance agreements.
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\17\Press Release, Statement by Secretary Jeh C. Johnson on the
Safety and Security of the Homeland, and How Congress Can Help, U.S.
Dep't of Homeland Security (Nov. 23, 2015), available at https://
www.dhs.gov/news/2015/11/23/statement-secretary-jeh-c-johnson-safety-
and-security-homeland-and-how-congress-can.
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This act ensures that CBP's preclearance expansion process
is transparent and holds DHS accountable by guaranteeing that
security screening and other domestic concerns are duly taken
into account as airports are added to the program. This
legislation also assists CBP in meeting its inspection
responsibilities under today's tough budgetary environment by
authorizing cost-sharing agreements. Specifically, the act
grants CBP the authority to enter into cost-sharing agreements
with foreign airports to cover 85 percent of the costs
associated with immigration and agriculture-related
inspections. In addition, the act allows CBP to receive advance
payment to cover initial costs associated with establishing
preclearance operations. Preclearance operations established
before 2012 are not affected by this provision unless the
airports modify their agreements with CBP.
III. Legislative History
Representative Patrick Meehan, along with Representatives
Ryan Costello, Leonard Lance, Michael McCaul, Candice Miller,
and Mike Rogers, introduced H.R. 998 on February 13, 2015,
which was referred to the House Committee on Homeland Security
and House Committee on Ways and Means. The House Committee on
Homeland Security considered H.R. 998 at a business meeting on
July 22, 2015. On the same day, the House Committee on Ways and
Means discharged the bill. The bill passed the House by voice
vote and under suspension of the rules on July 27, 2015.
The act was received in the Senate and referred to the
Committee on Homeland Security and Governmental Affairs on July
28, 2015. The Committee considered H.R. 998 at a business
meeting on October 7, 2015.
Chairman Ron Johnson offered one amendment in the nature of
a substitute, which decreased the length of the notification
and certification requirements, enhanced security oversight by
TSA, amended the required implementation plan, and added cost-
sharing agreements with relevant airport authorities. The
Committee adopted the amendment as modified and ordered the
bill, as amended, reported favorably, both by voice vote.
Senators present for both the vote on the amendment and the
vote on the bill were: Johnson, Portman, Lankford, Enzi, Ernst,
Sasse, Carper, McCaskill, Baldwin, Heitkamp, and Booker.
Consistent with the Committee's order on technical and
conforming changes at the meeting, the Committee reports the
bill with a technical amendment by mutual agreement of the full
Committee majority and minority staff.
IV. Section-by-Section Analysis of the Act, As Reported
Section 1. Short title
This section provides the act's short title, the
``Preclearance Authorization Act of 2015.''
Section 2. Definition
This section defines ``appropriate Congressional
committees,'' ``CBP,'' and ``Secretary.''
Section 3. Establishment of Preclearance Operations
This section authorizes CBP to establish preclearance
operations abroad for the purposes of preventing terrorism,
preventing admission of inadmissible persons, ensuring
merchandise to be imported to the United States complies with
domestic laws, and expediting traveler processing. Further, the
section conditions the commencement of preclearance operations
at a foreign airport on TSA having certified that the passenger
screening at the airport is equivalent to passenger screening
in the United States.
Section 4. Notification and Certification to Congress
To improve Congressional oversight of preclearance
operations, this section adds triggers for new Congressional
notifications and associated reporting requirements.
Subsection (a) requires that the DHS Secretary provide
appropriate Congressional committees with a copy of a
preclearance agreement not later than 60 days before the
agreement enters into force. Also by this deadline, the
Secretary must provide appropriate Congressional committees
with: assessments on the impact the preclearance operations
will have on legitimate trade and travel and on CBP staffing at
domestic ports of entry and information on anticipated homeland
security benefits, potential security vulnerabilities and
mitigation plans, a CBP staffing model and plans to fill such
positions, and anticipated costs over five fiscal years.
Subsection (b) requires that--not later than 45 days before
a preclearance agreement with a foreign government enters into
force--the DHS Secretary provide appropriate Congressional
committees with: an estimated date CBP intends to establish
preclearance operations; anticipated funding sources; a
homeland security threat assessment for the foreign country;
potential economic, competitive, and job impacts on United
States air carriers; information sharing mechanisms to prevent
terrorist and criminal travel; and other relevant factors.
Subsection (c) requires that--not later than 60 days before
a preclearance agreement with a foreign government enters into
force--the DHS Secretary certify to appropriate Congressional
committees that: preclearance operations will provide homeland
security benefits to the United States; at least one United
States passenger carrier has access to the preclearance
operations; a United States passenger carrier will have
comparable access to non-United States passenger carriers
operating at the same airport; commencing preclearance
operations will not increase CBP processing times at domestic
ports of entry; and CBP consulted with appropriate aviation
industry stakeholders. The subsection also requires the
Secretary to submit a report detailing the basis for the
certifications listed above, which may be submitted in
classified form, if appropriate.
Subsection (d) requires the DHS Secretary to notify
appropriate Congressional Committees at least 30 days before a
substantially amended preclearance agreement with a foreign
government enters into force.
Subsection (e) requires that the Commissioner of CBP report
quarterly to appropriate Congressional committees on: the
number and posts of CBP officers from domestic ports of entry
assigned to serve in an overseas preclearance location and the
number of CBP officers from all other posts who were reassigned
to fill in for those sent overseas. The subsection also
requires the Commissioner to submit to appropriate
Congressional committees an implementation plan to address any
increased CBP processing times at domestic ports of entry that
result from relocating CBP officers from those ports of entry
to overseas preclearance locations. If the Commissioner fails
to submit the implementation plan within 60 days, CBP is
prohibited from commencing additional preclearance operations
until the plan is submitted.
Section 5. Protocols
This section amends 49 U.S.C. 44901(d)(4) to require that
TSA personnel rescreen passengers and their property arriving
from foreign airports with preclearance operations if the
airport has not maintained security standards and protocols
comparable to those of the United States. The effect of this
condition is to ensure that participating foreign airports meet
United States aviation screening standards throughout the
duration of the preclearance agreement.
Section 6. Lost and Stolen Passports
This section prohibits the DHS Secretary from entering into
a preclearance agreement with a foreign government unless the
Secretary certifies that the foreign government routinely
notifies INTERPOL or the United States when its citizens' and
nationals' passports are reported lost or stolen.
Section 7. Recovery of Initial U.S. Customs and Border Protections
Preclearance Operations Costs
This section authorizes CBP to enter into a cost sharing
agreement with an airport authority in a foreign country at
which preclearance operations are in place or planned. The
section allows CBP to collect payments, including advance
payments to cover initial costs, apply collected funds to
offset CBP costs until expended, and return unused funds to the
relevant airport authority.
Section 8. Collection and Disposition of Funds Collected For
Immigration Inspection Services and Preclearance Activities
This section conforms section 286(i) of the Immigration and
Nationality Act and section 10412(b) of the Farm Security and
Rural Investment Act of 2002 to reflect accounting changes
established in Section 7.
Section 9. Application to New and Existing Preclearance Operations
This section provides that most provisions of the act apply
only to the establishment of new preclearance operations in a
country that does not currently have one. Sections 4(d), 5, 7,
and 8 apply to both current and future preclearance operations.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this act and determined
that the act will have no regulatory impact within the meaning
of the rules. The act contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would impose no costs on state, local, or tribal
governments.
VI. Congressional Budget Office Cost Estimate
December 8, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 998, the
Preclearance Authorization Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall.
Enclosure.
H.R. 998--Preclearance Authorization Act of 2015
H.R. 998 would authorize Customs and Border Protection
(CBP) in the Department of Homeland Security to establish
preclearance (inspection) stations in foreign countries. CBP
currently operates preclearance facilities in about 15
locations, mostly in Canada. The act would require the agency
to notify the Congress before establishing preclearance
stations in countries that currently have none. H.R. 998 also
would authorize CBP to enter into cost sharing agreements with
airport authorities in foreign countries to defray certain
costs related to operating preclearance stations.
CBP anticipates opening new preclearance stations over the
next several years and can do so under current law. The
collection and subsequent spending of any amounts related to
cost sharing agreements would be subject to future
appropriation acts. Thus, CBO estimates that implementing H.R.
998 would have no significant net effect on CBP spending.
Enacting the legislation would not affect direct spending
or revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 998 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2026.
H.R. 998 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 July 13, 2015, CBO transmitted a cost estimate for H.R.
998 as ordered reported by the House Committee on Homeland
Security on June 25, 2015. The two versions of the act are
similar and CBO's estimates of the budgetary effects are the
same.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
H.R. 998 as reported are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
TITLE 49--TRANSPORTATION, UNITED STATES CODE
* * * * * * *
CHAPTER 449--SECURITY
SEC. 44901. SCREENING PASSENGERS AND PROPERTY.
* * * * * * *
(d) Explosives Detection Systems.--
(1) * * *
* * * * * * *
(4) Preclearance airports.--
(A) * * *
* * * * * * *
(D) Rescreening requirement.--If the
Administrator of the Transportation Security
Administration determines that the government
of a foreign country has not maintained
security standards and protocols comparable to
those of the United States at airports at which
preclearance operations have been established
in accordance with this paragraph, the
Administrator shall ensure that Transportation
Security Administration personnel rescreen
passengers arriving from such airports and
their property in the United States before such
passengers are permitted into sterile areas of
airports in the United States.
* * * * * * *
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
CHAPTER 9--MISCELLANEOUS
* * * * * * *
DISPOSITION OF MONEYS COLLECTED UNDER THE PROVISIONS OF THIS
SUBCHAPTER.
SEC. 286.
(a) * * *
* * * * * * *
(i) Reimbursement.--Notwithstanding any other provision of
law, the Attorney General is authorized to receive
reimbursement from the owner, operator, or agent of a private
or commercial aircraft or vessel, or from any airport or
seaport authority for expenses incurred by the Attorney General
in providing immigration inspection services which are rendered
at the request of such person or authority (including the
salary and expenses of individuals employed by the Attorney
General to provide such immigration inspection services). [The
Attorney General's authority to receive such reimbursement
shall terminate immediately upon the provision for such
services by appropriation.] Reimbursements under this
subsection may be collected in advance of the provision of such
immigration inspection services. Notwithstanding subparagraph
(h)(1)(B), and only to the extent provided in appropriations
Acts, any amounts collected under this subsection shall be
credited as offsetting collections to the currently applicable
appropriation, account, or fund of U.S. Customs and Border
Protection, remain available until expended, and be available
for the purposes for which such appropriation, account, or fund
is authorized to be used.
* * * * * * *
FARM SECURITY AND RURAL INVESTMENT ACT OF 2002
* * * * * * *
TITLE X--MISCELLANEOUS
* * * * * * *
Subtitle E--Animal Health Protection
* * * * * * *
SEC. 10412. REIMBURSABLE AGREEMENTS.
(a) * * *
[(b) Funds Collected for Preclearance.--Funds collected for
preclearance activities shall--]
[(1) be credited to accounts that may be established
by the Secretary for carrying out this section; and]
[(2) remain available until expended for the
preclearance activities, without fiscal year
limitation.]
(b) Funds Collected for Preclearance.--Funds collected for
preclearance activities--
(1) may be collected in advance of the provision of
such activities;
(2) shall be credited as offsetting collections to
the currently applicable appropriation, account, or
fund of U.S. Customs and Border Protection;
(3) shall remain available until expended;
(4) shall be available for the purposes for which
such appropriation, account, or fund is authorized to
be used; and
(5) may be collected and shall be available only to
the extent provided in appropriations Acts.
* * * * * * *
[all]