[Senate Report 114-303]
[From the U.S. Government Publishing Office]
Calendar No. 559
114th Congress } { Report
SENATE
2d Session } { 114-303
_______________________________________________________________________
CROSS-BORDER TRADE ENHANCEMENT
ACT OF 2015
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 461
TO PROVIDE FOR ALTERNATIVE FINANCING ARRANGEMENTS FOR
THE PROVISION OF CERTAIN SERVICES AND THE CONSTRUCTION
AND MAINTENANCE OF INFRASTRUCTURE AT LAND BORDER PORTS OF ENTRY, AND
FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
August 30, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of July 14, 2016
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-010 WASHINGTON : 2016
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
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Courtney J. Allen, Counsel
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
Laura W. Kilbride, Chief Clerk
Calendar No. 559
114th Congress } { Report
SENATE
2d Session } { 114-303
======================================================================
CROSS-BORDER TRADE ENHANCEMENT ACT OF 2015
_______
August 30, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of July 14, 2016
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 461]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 461) to provide for
alternative financing arrangements for the provision of certain
services and the construction and maintenance of infrastructure
at land border ports of entry, 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 Bill, as Reported............8
I. Purpose and Summary
The purpose of S. 461, the Cross-Border Trade Enhancement
Act of 2016, is to reauthorize and expand the pilot programs
that permit United States Customs and Border Protection (CBP)
to enter into agreements with private or state or local
government entities for reimbursable services or property
donations at CBP ports of entry. The authorization of public-
private partnerships under this bill will allow private sector
and state and local government entities to fund improvements at
CBP ports of entry that will increase trade and travel
efficiencies at no cost to the taxpayer.
II. Background and the Need for Legislation
Travel and trade into the United States has been steadily
increasing since 2008.\1\ CBP is the Federal law enforcement
agency responsible for facilitating international travel and
trade at our Nation's ports of entry.\2\ In fiscal year (FY)
2015, CBP processed more than 382 million passengers at the
Nation's 328 land, sea, and air ports of entry.\3\ CBP
processed over $2.4 trillion worth of goods at ports of entry
during the same year, ``while enforcing U.S. trade laws that
protect the nation's economy and the health and safety of the
American public.''\4\ CBP estimates that the magnitude of
passengers and inbound trade in FY 2016 will exceed the
previous year's volume.\5\
---------------------------------------------------------------------------
\1\U.S. Customs and Border Protection, Resource Optimization at
Ports of Entry: Fiscal Year 2015 Report to Congress 1 (2015), available
at https://www.cbp.gov/sites/default/files/documents/Resource%20-
Optimization%20Model-%20FY%202015%20Public%2005-13-15.pdf [hereinafter
FY 2015 Report to Congress].
\2\U.S. Customs and Border Protection, About Us, https://
www.cbp.gov/about.
\3\U.S. Dep't of Homeland Sec., Fiscal Year 2017 Budget-in-Brief 27
(2016), available at https://www. dhs.gov/sites/default/files/
publications/FY2017__BIB-MASTER.pdf.
\4\Id.
\5\FY 2015 Report to Congress at 1.
---------------------------------------------------------------------------
Despite the growing volume, ``CBP officer staffing levels
have remained relatively the same.''\6\ In its budget request
for FY 2014, the Department of Homeland Security (DHS) stated
that ``[s]taffing needs . . . continue to increase as CBP takes
on expanded mission requirements, capacity at [ports of entry]
grows, and travel to the U.S. increases.''\7\ In 2014, Congress
authorized over $255 million in funding ``to increase the [CBP
officer] workforce by not fewer than 2,000 new officers by the
end of fiscal year 2015.''\8\ According to CBP, these
additional 2,000 CBP officers will result in 66,000 new jobs
and a $4 billion increase in the United States' Gross Domestic
Product because of reduced wait times and expedited flow of
trade and tourism at ports of entry.\9\
---------------------------------------------------------------------------
\6\U.S. Customs and Border Protection, Resource Optimization
Strategy, https://www.cbp.gov/border-security/ports-entry/resource-opt-
strategy.
\7\U.S. Dep't of Homeland Sec., Fiscal Year 2014 Budget-in-Brief
115 (2013), available at https://www.dhs.gov/sites/default/files/
publications/FY%202014%20BIB%20-%20FINAL%20-508%20Formatted%20%284%
29.pdf.
\8\160 Cong. Rec H475, 929 (daily ed. Jan. 15, 2014) (statement of
Rep. Rogers). See also Consolidated Appropriations Act, Pub. L. No.
113-76 (2014).
\9\Fiscal Year 2015 Budget Request: Hearing Before the Subcomm. on
Homeland Sec. of the H. Comm. on Appropriations, 113th Cong. (2014)
(statement of R. Gil Kerlikowske, Commissioner, U.S. Customs and Border
Protection).
---------------------------------------------------------------------------
However, despite the significant funding for more CBP
officers, CBP only realized a net gain of 818 officers as of
June 2, 2015, due to attrition and the amount of time it takes
to bring on new officers.\10\ CBP estimated it would need an
additional 2,107 CBP officers through FY 2017 to meet optimal
staffing.\11\ One reason CBP has been unable to meet its
staffing goals is that many applicants are unable to pass the
requirements of the CBP hiring process.\12\ The hiring process
for CBP frontline personnel is ``intentionally rigorous,''
requiring an entrance exam, qualifications review, interview,
medical exam, drug screening, physical fitness test, polygraph
examination, and a background investigation.\13\ CBP is the
only Federal law enforcement agency with a statutory
requirement that all frontline law enforcement applicants
undergo a polygraph examination, which is serving as a
deterrent for some applicants.\14\
---------------------------------------------------------------------------
\10\S. Rep. No. 114-116, at 12 (2015).
\11\Keeping Pace with Trade, Travel, and Security: How Does CBP
Prioritize and Improve Staffing and Infrastructure?: Hearing Before the
Subcomm. on Border and Maritime Sec. of the H. Comm. on Homeland Sec.,
114th Cong. (2016) (joint statement of Eugene Schied, Assistant
Commissioner, Office of Admin., U.S. Customs and Border Protection,
Linda Jacksta, Assistant Commissioner, Office of Human Resources Mgmt.,
U.S. Customs and Border Protection, and John Wagner, Deputy Assistant
Commissioner, Office of Field Operations, U.S. Customs and Border
Protection).
\12\Id.
\13\Id.
\14\Id. (statement of Linda Jacksta, Assistant Commissioner, Office
of Human Resources Mgmt., U.S. Customs and Border Protection).
---------------------------------------------------------------------------
To address the staffing and funding needs at ports of
entry, Congress created pilot programs in 2013 and 2014 to
provide alternative funding sources for CBP at ports of entry.
Section 560 of the Consolidated and Further Continuing
Appropriations Act of 2013 authorized CBP to enter into
agreements with private sector and state and local government
entities that would reimburse CBP for customs-related personnel
services at ports of entry.\15\ This allowed non-Federal
entities that operate CBP ports of entry to pay for additional
officers beyond what CBP normally would have allocated. Section
559 of the Consolidated Appropriations Act of 2014 authorized
an additional five agreements per year with air ports of entry,
for a total cap of 10 per year.\16\ Section 559 also expanded
the applicable services for reimbursable service agreements to
include border security services and agricultural
processing.\17\ Both pilot programs were authorized for five
years.\18\
---------------------------------------------------------------------------
\15\Consolidated and Further Continuing Appropriations Act, Pub. L.
No. 113-6, Sec. 560, 127 Stat. 198, 378-80 (2013).
\16\Consolidated Appropriations Act, Pub. L. No. 113-76, 559, 128
Stat. 5, 279-285 (2014).
\17\Id.
\18\Id. See also Consolidated and Further Continuing Appropriations
Act at Sec. 560(a).
---------------------------------------------------------------------------
Since 2013, CBP has entered into reimbursable service
agreements with 29 stakeholders at land, sea, and air ports of
entry.\19\ These agreements have contributed to more than
125,000 additional processing hours to meet stakeholder demand
during which 3 million travelers and almost 460,000 vehicles
were processed.\20\ These agreements with air ports of entry
contributed to decreased wait times by an average of nearly 30
percent at ports where they were implemented.\21\ CBP may have
been able to approve more of these agreements had the agency
not been limited in statute to executing only 10 agreements per
year at air ports of entry.\22\ CBP identified expanding its
Section 559 program public-private partnership authority as a
way ``to fund enhanced CBP services and implement new funding
streams for current programs.''\23\
---------------------------------------------------------------------------
\19\U.S. Customs and Border Protection, Program and Partners,
https://www.cbp.gov/border-security/ports-entry/resource-opt-strategy/
public-private-partnerships/reimbursable-services-program/program-and-
partners.
\20\Id.
\21\Id.
\22\Consolidated Appropriations Act, Pub. L. No. 114-113, Sec. 550,
129 Stat. 2242, 2519 (2015).
\23\FY 2015 Report to Congress at 29.
---------------------------------------------------------------------------
Section 559 of the Consolidated Appropriations Act of 2014
also expanded this public-private partnership authority to
allow CBP, in consultation with the General Services
Administration (GSA), to enter into agreements to receive
donations of property or non-personal services at ports of
entry.\24\ GSA manages 124 of the 167 land ports of entry along
United States borders, and the Federal Government owns or
partially owns 102.\25\ For the past five years, Congress
appropriated $300 million less than what GSA requested from the
Federal Buildings Fund to make upgrades and modernizations at
land ports of entry.\26\ These projects would serve to enhance
border security and improve the flow of commerce.\27\ As a
result, GSA is receiving ``intense interest'' in alternative
funding sources for these projects at land ports of entry.\28\
Under Section 559, GSA and CBP developed Donation Acceptance
Procedures Framework to evaluate received proposals. CBP, with
agreement from GSA, selected three proposals of which CBP, GSA,
and the project sponsor are collaboratively planning and
developing to realize CBP's operational needs at an appropriate
cost, schedule, and risk.\29\
---------------------------------------------------------------------------
\24\Consolidated Appropriations Act, supra note 13.
\25\A New Approach to Increase Trade and Security: An Examination
of CBP's Public Private Partnerships: Hearing Before the Subcomm. on
Border and Maritime Security of the H. Comm. on Homeland Sec., 114th
Cong. (2015) (statement of Michael Gelber, Deputy Commissioner, Public
Buildings Service, U.S. Gen. Serv. Administration).
\26\Id.
\27\Id.
\28\Id.
\29\Id.
---------------------------------------------------------------------------
The Cross-Border Trade Enhancement Act of 2016 will expand
the CBP's public-private partnership authority by removing the
limitations for reimbursable service agreements at air ports of
entry and by improving the application process to be more
efficient and practical for private sector and state and local
government entities submitting proposals. The bill will remove
the limit on the number of reimbursable service agreements CBP
may enter into with air ports of entry and allow air ports of
entry to reimburse CBP for the salaries and expenses of up to
five officers per agreement, not just overtime costs as
currently allowed. This will permit more United States airports
to enter into these public-private partnerships, including
smaller regional airports with a limited number of CBP
personnel. CBP will be required to develop procedures to
institute year-round review of proposals for agreements for
donations to ports of entry. The bill would also set a deadline
for CBP to decide on proposals and require it to provide a
reason for denials. The bill would also allow CBP to accept
advance payments from these agreements. This bill authorizes
CBP to enter into these public-private partnerships for 10
years.
This bill also works to alleviate challenges in the hiring
process of CBP law enforcement officers by allowing CBP to
waive the polygraph requirement for certain eligible veterans
of the Armed Forces.
III. Legislative History
S. 461, the Cross-Border Trade Enhancement Act of 2016, was
introduced on February 11, 2015, by Senators John Cornyn and
Amy Klobuchar. Senators Ron Johnson and Dean Heller joined as
co-sponsors on May 18, 2016, and May 19, 2016, respectively.
The bill was referred to the Committee on Homeland Security and
Governmental Affairs.
The Committee considered S. 461 at a business meeting on
May 25, 2016. During the business meeting, Chairman Johnson and
Ranking Member Tom Carper offered a modified substitute
amendment that made several changes to the base bill, including
lifting the cap on the number of reimbursable service
agreements allowed at air ports of entry and allowing
reimbursable service agreements to compensate for the salaries
and expenses of up to five CBP officers, as well as overtime
expenses.
Ranking Member Carper also offered an amendment that would
permit CBP to waive the polygraph requirement for Armed Forces
veterans that meet certain requirements.
Both amendments were adopted en bloc by voice vote, and the
legislation, as modified by the two amendments, was then passed
by voice vote with Senators Johnson, Portman, Paul, Lankford,
Ayotte, Ernst, Sasse, Carper, McCaskill, Tester, Baldwin,
Heitkamp, Booker, and Peters present.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Cross-Border Trade Enhancement Act of 2016.''
Section 2. Repeal and transition provision
This section repeals the pilot programs established under
section 560 of the Department of Homeland Security
Appropriations Act of 2013 and section 559 of the Department of
Homeland Security Appropriations Act of 2014. It specifies that
the repeal has no effect on any agreements entered into or
accepted for consideration by CBP or the General Services
Administration (GSA) under these pilot programs.
Section 3. Definitions
This section defines key terms in the bill.
Section 4. Authority to enter into fee agreements for the provision of
certain services of U.S. Customs and Border Protection
Subsection (a) allows CBP to enter into an agreement with a
private or government entity for the services of CBP personnel
at CBP-serviced ports of entry or facilities. There is no limit
on the number of these agreements for which CBP may enter into,
but the Commissioner is provided the authority to impose such a
limit should these agreements cause resource or allocation
constraints. Under this section, CBP is authorized to enter
into an agreement for the reimbursement of the salaries and
expenses for up to five full-time equivalent CBP officers at an
applicant air port of entry. CBP is required to provide equal
consideration to all sizes of ports of entry applicants and
must provide a reason to the applicant for any denied fee
agreement proposal.
Subsection (b) delineates the fee payments under the
agreements entered into under this section and the parties'
rights to terminate the agreements.
Subsection (c) requires CBP to provide an annual report to
Congress on each fee agreement entered into during the previous
year.
Subsection (d) adds the program created by this section to
the list of programs with required reporting requirements to
Congress under the Trade Facilitation and Trade Enforcement Act
of 2015.
Section 5. Authority to enter into agreements to accept donations for
ports of entry
Subsection (a) authorizes CBP, in collaboration with GSA,
to enter into agreements for CBP to receive donations of
property or non-personal services at CBP-serviced ports of
entry. If GSA has custody or control of the port of entry in
the agreement, GSA may enter into the agreement, in
collaboration with CBP.
Subsection (b) describes the acceptable uses of a donation
under an agreement authorized by this section.
Subsection (c) prohibits CBP from using any monetary
donations to pay for the salaries of CBP employees.
Subsection (d) allows the term of an agreement under this
section to be as long as required to meet the terms of the
agreement.
Subsection (e) outlines the role of GSA for donation
agreements.
Subsection (f) requires CBP, in consultation with GSA, to
issue procedures for CBP to evaluate proposals for donation
agreements on a year-round basis. The procedures will also
evaluate the possibility of engaging in cost-sharing or
reimbursement agreements and whether such agreements would
improve facility conditions and services provided at CBP ports
of entry.
Under subsection (g), CBP, or, in some cases, GSA, is
required to notify an applicant for a donation agreement if the
submitted proposal is complete or incomplete. If the proposal
is deemed incomplete, CBP will provide a detailed description
of all specific information needed for a complete proposal. The
applicant will then be permitted to resubmit the proposal for a
donation agreement with the additional information for a
complete proposal. After reviewing a complete and final
proposal for a donation agreement, CBP will make a
determination of denial or approval within 180 days and notify
the applicant of the determination. This section also lists
factors for CBP and GSA to consider in its determination of a
proposal for a donation agreement.
Subsection (h) allows CBP to use supplemental funding for
property donated pursuant to an agreement under this section,
including appropriated funds made available for the same
purpose of the donation.
Subsection (i) requires CBP or GSA to return any unused
property or services donated pursuant to an agreement under
this section.
Subsection (j) prohibits CBP or GSA from owing any interest
for any donation returned under subsection (i).
Subsection (k) prohibits CBP or GSA from making
expenditures for the receipt of a donation pursuant to an
agreement under this section that would be an amount exceeding
the value of the donation. This section does not prohibit CBP
or GSA from using appropriated funds to utilize the donation
during the course of its lifetime.
Subsection (l) requires CBP, in collaboration with GSA, to
report annually to Congress on each donation agreement entered
into during the previous year.
Subsection (m) clarifies that nothing in this section
affects the responsibilities, duties, or authorities of CBP or
GSA, nor does it create any rights or liabilities of the
parties entering into agreements under this section.
Section 6
This section authorizes the Commissioner of CBP to waive
the polygraph requirement for applicants for CBP law
enforcement positions provided that the applicants are
veterans, have been deemed suitable for employment, hold a
current security clearance that was granted without any
waivers, and has a current Single Scope Background
investigation.
Section 7
This section authorizes CBP to enter into reimbursable
service or donation acceptance agreements for ten years.
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 bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill 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
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 12, 2016.
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 S. 461, the Cross-
Border Trade Enhancement Act of 2016.
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.
S. 461--Cross-Border Trade Enhancement Act of 2016
S. 461 would extend the current authority for Customs and
Border Protection (CBP) to accept donations of real and
personal property, including monetary donations, from federal
or nonfederal entities to establish or improve CBP facilities
at ports of entry. The bill also would extend the current
authority for CBP to enter into agreements to provide customs,
agricultural processing, border security, or inspection-related
immigration services for a fee that would cover the agency's
costs. The authority to accept donations and enter into fee
agreements expires in 2019 under current law; S. 461 would
extend those authorities for 10 years after the date of
enactment.
Enacting S. 461 could affect direct spending by increasing
offsetting receipts from donations and fee agreements as well
as the associated direct spending of those funds; therefore,
pay-as-you-go procedures apply. However, CBO estimates that the
net effect on direct spending would be insignificant. Enacting
the bill would not affect revenues.
CBO estimates that enacting the legislation would not
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2027.
S. 461 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act. Any
costs to state, local, and tribal governments from engaging CBP
to provide certain services would result from voluntary
agreements.
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 Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, 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):
UNITED STATES CODE
* * * * * * *
TITLE 6--DOMESTIC SECURITY
* * * * * * *
CHAPTER 1--HOMELAND SECURITY ORGANIZATION
* * * * * * *
Subchapter IV--Border, Maritime, and Transportation Security
* * * * * * *
PART B--U.S. CUSTOMS AND BORDER PROTECTION
* * * * * * *
SEC. 221. REQUIREMENTS WITH RESPECT TO ADMINISTERING POLYGRAPH
EXAMINATIONS TO LAW ENFORCEMENT PERSONNEL OF U.S.
CUSTOMS AND BORDER PROTECTION
(a) In General.--The Secretary [The Secretary] of Homeland
Security shall ensure that--
(1) by not later than 2 years after January 4, 2011,
all applicants for law enforcement positions with U.S.
Customs and Border Protection (except as provided in
subsection (b)) receive polygraph examinations before
being hired for such a position; and
(2) * * *
(b) Waiver.--The Commissioner of U.S. Customs and Border
Protection may waive the polygraph examination requirement
under subsection (a)(1) for any applicant who--
(1) is deemed suitable for employment;
(2) holds a current, active Top Secret/Sensitive
Compartmented Information Clearance;
(3) has a current Single Scope Background
Investigation;
(4) was not granted any waivers to obtain his or her
clearance; and
(5) is a veteran (as such term is defined in section
2108 or 2109(a) of title 5, United States Code).
* * * * * * *
CONSOLIDATED APPROPRIATIONS ACT, 2013
* * * * * * *
DIVISION D--DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS, 2013
* * * * * * *
TITLE V--GENERAL PROVISIONS
[SEC. 560.
[(a) Notwithstanding sections 58c(e) and 1451 of title 19,
United States Code, upon the request of any persons, the
Commissioner of U.S. Customs and Border Protection may enter
into reimbursable fee agreements for a period of up to 5 years
with such persons for the provision of U.S. Customs and Border
Protection services and any other costs incurred by U.S.
Customs and Border Protection relating to such services. Such
requests may include additional U.S. Customs and Border
Protection services at existing U.S. Customs and Border
Protection-serviced facilities (including but not limited to
payment for overtime), the provision of U.S. Customs and Border
Protection services at new facilities, and expanded U.S.
Customs and Border Protection services at land border
facilities.
[(1) By December 31, 2013, the Commissioner may enter
into not more than 5 agreements under this section.
[(2) The Commissioner shall not enter into such an
agreement if it would unduly and permanently impact
services funded in this or any other appropriations
Acts, or provided from any accounts in the Treasury of
the United States derived by the collection of fees.
[(b) Funds collected pursuant to any agreement entered into
under this section shall be deposited in a newly established
account as offsetting collections and remain available until
expended, without fiscal year limitation, and shall directly
reimburse each appropriation for the amount paid out of that
appropriation for any expenses incurred by U.S. Customs and
Border Protection in providing U.S. Customs and Border
Protection services and any other costs incurred by U.S.
Customs and Border Protection relating to such services.
[(c) The amount of the fee to be charged pursuant to an
agreement authorized under subsection (a) of this section shall
be paid by each person requesting U.S. Customs and Border
Protection services and shall include, but shall not be limited
to, the salaries and expenses of individuals employed by U.S.
Customs and Border Protection to provide such U.S. Customs and
Border Protection services and other costs incurred by U.S.
Customs and Border Protection relating to those services, such
as temporary placement or permanent relocation of those
individuals.
[(d) U.S. Customs and Border Protection shall terminate the
provision of services pursuant to an agreement entered into
under subsection (a) with a person that, after receiving notice
from the Commissioner that a fee imposed under subsection (a)
is due, fails to pay the fee in a timely manner. In the event
of such termination, all costs incurred by U.S. Customs and
Border Protection, which have not been reimbursed, will become
immediately due and payable. Interest on unpaid fees will
accrue based on current U.S. Treasury borrowing rates.
Additionally, any person who, after notice and demand for
payment of any fee charged under subsection (a) of this
section, fails to pay such fee in a timely manner shall be
liable for a penalty or liquidated damage equal to two times
the amount of the fee. Any amount collected pursuant to any
agreement entered into under this subsection shall be deposited
into the account specified under subsection (b) of this section
and shall be available as described therein.
[(e) Each facility at which such U.S. Customs and Border
Protection services are performed shall provide, maintain, and
equip, without cost to the Government, facilities in accordance
with U.S. Customs and Border Protection specifications.
[(f) The authority found in this section may not be used to
enter into agreements to expand or begin to provide U.S.
Customs and Border Protection services outside of the United
States.
[(g) The authority found in this section may not be used at
existing U.S. Customs and Border Protection-serviced air
facilities to enter into agreements for costs other than
payment of overtime.
[(h) The Commissioner shall notify the appropriate
Committees of Congress 15 days prior to entering into any
agreement under the authority of this section and shall provide
a copy of the agreement to the appropriate Committees of
Congress.
[(i) For purposes of this section the terms:
[(1) U.S. Customs and Border Protection ``services''
means any activities of any employee or contractor of
U.S. Customs and Border Protection pertaining to
customs and immigration inspection-related matters.
[(2) ``Person'' means any natural person or any
corporation, partnership, trust, association, or any
other public or private entity, or any officer,
employee, or agent thereof.
[(3) ``Appropriate Committees of Congress'' means the
Committees on Appropriations; Finance; Judiciary; and
Homeland Security and Governmental Affairs of the
Senate and the Committees on Appropriations; Judiciary;
Ways and Means; and Homeland Security of the House of
Representatives.]
* * * * * * *
CONSOLIDATED APPROPRIATIONS ACT, 2014
* * * * * * *
DIVISION F--DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2014
* * * * * * *
TITLE V--GENERAL PROVISIONS
[SEC. 559.
[(a) In General.--In addition to existing authorities, the
Commissioner of U.S. Customs and Border Protection, in
collaboration with the Administrator of General Services, is
authorized to conduct a pilot program in accordance with this
section to permit U.S. Customs and Border Protection to enter
into partnerships with private sector and government entities
at ports of entry for certain services and to accept certain
donations.
[(b) Rule of Construction.--Except as otherwise provided in
this section, nothing in this section may be construed as
affecting in any manner the responsibilities, duties, or
authorities of U.S. Customs and Border Protection or the
General Services Administration.
[(c) Duration.--The pilot program described in subsection
(a) shall be for five years. A partnership entered into during
such pilot program may last as long as required to meet the
terms of such partnership. At the end of such five year period,
the Commissioner may request that such pilot program be made
permanent.
[(d) Coordination.--
[(1) In general.--The Commissioner, in consultation
with participating private sector and government
entities in a partnership under subsection (a), shall
provide the Administrator with information relating to
U.S. Customs and Border Protection's requirements for
new facilities or upgrades to existing facilities at
land ports of entry.
[(2) Criteria.--The Commissioner and the
Administrator shall establish criteria for entering
into a partnership under subsection (a) that include
the following:
[(A) Selection and evaluation of potential
partners.
[(B) Identification and documentation of
roles and responsibilities between U.S. Customs
and Border Protection, General Services
Administration, and private and government
partners.
[(C) Identification, allocation, and
management of explicit and implicit risks of
partnering between U.S. Customs and Border
Protection, General Services Administration,
and private and government partners.
[(D) Decision-making and dispute resolution
processes in partnering arrangements.
[(E) Criteria and processes for U.S. Customs
and Border Protection and General Services
Administration to terminate agreements if
private or government partners are not meeting
the terms of such a partnership, including the
security standards established by U.S. Customs
and Border Protection.
[(3) Evaluation plan.--The Commissioner, in
collaboration with the Administrator, shall submit to
the Committee on Homeland Security, the Committee on
Transportation and Infrastructure, and the Committee on
Appropriations of the House of Representatives and the
Committee on Homeland Security and Governmental
Affairs, the Committee on Environment and Public Works,
and the Committee on Appropriations of the Senate, an
evaluation plan for the pilot program described in
subsection (a) that includes the following:
[(A) Well-defined, clear, and measurable
objectives.
[(B) Performance criteria or standards for
determining the performance of such pilot
program.
[(C) Clearly articulated evaluation
methodology, including--
[(i) sound sampling methods;
[(ii) a determination of appropriate
sample size for the evaluation design;
[(iii) a strategy for tracking such
pilot program's performance; and
[(iv) an evaluation of the final
results.
[(D) A plan detailing the type and source of
data necessary to evaluate such pilot program,
methods for data collection, and the timing and
frequency of data collection.
[(e) Authority To Enter Into Agreements for the Provision
of Certain Services at Ports of Entry.--
[(1) In general.--Notwithstanding section 13031(e) of
the Consolidated Omnibus Budget Reconciliation Act of
1985 (19 U.S.C. 58c(e)) and section 451 of the Tariff
Act of 1930 (19 U.S.C. 1451), the Commissioner may,
during the pilot program described in subsection (a)
and upon the request of a private sector or government
entity with which U.S. Customs and Border Protection
has entered into a partnership, enter into a
reimbursable fee agreement with such entity under
which--
[(A) U.S. Customs and Border Protection will
provide services described in paragraph (2) at
a port of entry;
[(B) such entity will pay a fee imposed under
paragraph (4) to reimburse U.S. Customs and
Border Protection for the costs incurred in
providing such services; and
[(C) each facility at which U.S. Customs and
Border Protection services are performed shall
be provided, maintained, and equipped by such
entity, without cost to the Federal Government,
in accordance with U.S. Customs and Border
Protection specifications.
[(2) Services described.--Services described in this
paragraph are any activities of any employee or
contractor of U.S. Customs and Border Protection
pertaining to customs, agricultural processing, border
security, and immigration inspection-related matters at
ports of entry.
[(3) Limitations.--
[(A) Impacts of services.--The Commissioner
may not enter into a reimbursable fee agreement
under this subsection if such agreement would
unduly and permanently impact services funded
in this or any other appropriations Act, or
provided from any account in the Treasury of
the United States derived by the collection of
fees.
[(B) For certain costs.--The authority found
in this subsection may not be used at U.S.
Customs and Border Protection-serviced air
ports of entry to enter into reimbursable fee
agreements for costs other than payment of
overtime.
[(C) The authority found in this subsection
may not be used to enter into new preclearance
agreements or begin to provide U.S. Customs and
Border Protection services outside of the
United States.
[(D) The authority found in this subsection
shall be limited with respect to U.S. Customs
and Border Protection-serviced air ports of
entry to five pilots per year.
[(4) Fee.--
[(A) In general.--The amount of the fee to be
charged pursuant to an agreement authorized
under paragraph (1) shall be paid by each
private sector and government entity requesting
U.S. Customs and Border Protection services,
and shall include the salaries and expenses of
individuals employed by U.S. Customs and Border
Protection to provide such services and other
costs incurred by U.S. Customs and Border
Protection relating to such services, such as
temporary placement or permanent relocation of
such individuals.
[(B) Oversight of fees.--The Commissioner
shall develop a process to oversee the
activities reimbursed by the fees charged
pursuant to an agreement authorized under
paragraph (1) that includes the following:
[(i) A determination and report on
the full costs of providing services,
including direct and indirect costs,
including a process for increasing such
fees as necessary.
[(ii) Establishment of a monthly
remittance schedule to reimburse
appropriations.
[(iii) Identification of overtime
costs to be reimbursed by such fees.
[(5) Deposit of funds.--Funds collected pursuant to
any agreement entered into under paragraph (1) shall be
deposited as offsetting collections and remain
available until expended, without fiscal year
limitation, and shall directly reimburse each
appropriation for the amount paid out of that
appropriation for any expenses incurred by U.S. Customs
and Border Protection in providing U.S. Customs and
Border Protection services and any other costs incurred
by U.S. Customs and Border Protection relating to such
services.
[(6) Termination.--The Commissioner shall terminate
the provision of services pursuant to an agreement
entered into under paragraph (1) with a private sector
or government entity that, after receiving notice from
the Commissioner that a fee imposed under paragraph (4)
is due, fails to pay such fee in a timely manner. In
the event of such termination, all costs incurred by
U.S. Customs and Border Protection, which have not been
reimbursed, will become immediately due and payable.
Interest on unpaid fees will accrue based on current
Treasury borrowing rates. Additionally, any private
sector or government entity that, after notice and
demand for payment of any fee charged under paragraph
(4), fails to pay such fee in a timely manner shall be
liable for a penalty or liquidated damage equal to two
times the amount of such fee. Any amount collected
pursuant to any agreement entered into under paragraph
(1) shall be deposited into the account specified under
paragraph (5) and shall be available as described
therein.
[(7) Notification.--The Commissioner shall notify the
Congress 15 days prior to entering into any agreement
under paragraph (1) and shall provide a copy of such
agreement.
[(f) Donations.--
(1) In general.--Subject to paragraph (2), the
Commissioner and the Administrator may, during the
pilot program described in subsection (a), accept a
donation of real or personal property (including
monetary donations) or nonpersonal services from any
private sector or government entity with which U.S.
Customs and Border Protection has entered into a
partnership.
[(2) Allowable uses of donations.--The Commissioner
and the Administrator, with respect to any donation
provided pursuant to paragraph (1), may--
[(A) use such donation for necessary
activities related to the construction,
alteration, operation, or maintenance of an
existing port of entry facility under the
jurisdiction, custody, and control of the
Commissioner, including expenses related to--
[(i) land acquisition, design,
construction, repair and alteration;
[(ii) furniture, fixtures, and
equipment;
[(iii) the deployment of technology
and equipment; and
[(iv) operations and maintenance; or
[(B) transfer such property or services to
the Administrator for necessary activities
described in subparagraph (A) related to a new
or existing port of entry under the
jurisdiction, custody, and control of the
Administrator, subject to chapter 33 of title
40, United States Code.
[(3) Consultation and budget.--
[(A) With the private sector or government
entity.--To accept a donation described in
paragraph (1), the Commissioner and the
Administrator shall--
[(i) consult with the appropriate
stakeholders and the private sector or
government entity that is providing the
donation and provide such entity with a
description of the intended use of such
donation; and
[(ii) submit to the Committee on
Appropriations, the Committee on
Homeland Security, and the Committee on
Transportation and Infrastructure of
the House of Representatives and the
Committee on Appropriations, the
Committee on Homeland Security and
Governmental Affairs, and the Committee
on Environment and Public Works of the
Senate a report not later than one year
after the date of enactment of this
Act, and annually thereafter, that
describes--
[(I) the accepted donations
received under this subsection;
[(II) the ports of entry that
received such donations; and
[(III) how each donation
helped facilitate the
construction, alternation,
operation, or maintenance of a
new or existing land port of
entry.
[(B) Savings provision.--Nothing in this
paragraph may be construed to--
[(i) create any right or liability of
the parties referred to in subparagraph
(A); or
[(ii) affect any consultation
requirement under any other law.
[(4) Evaluation procedures.--Not later than 180 days
after the date of the enactment of this Act, the
Commissioner, in consultation with the Administrator,
shall establish procedures for evaluating a proposal
submitted by a private sector or government entity to
make a donation of real or personal property (including
monetary donations) or nonpersonal services under
paragraph (1) relating to a port of entry under the
jurisdiction, custody and control of the Commissioner
or the Administrator and make any such evaluation
criteria publicly available.
[(5) Considerations.--In determining whether or not
to approve a proposal referred to in paragraph (4), the
Commissioner or the Administrator shall consider--
[(A) the impact of such proposal on the port
of entry at issue and other ports of entry on
the same border;
[(B) the potential of such proposal to
increase trade and travel efficiency through
added capacity;
[(C) the potential of such proposal to
enhance the security of the port of entry at
issue;
[(D) the funding available to complete the
intended use of a donation under this
subsection, if such donation is real property;
[(E) the costs of maintaining and operating
such donation;
[(F) whether such donation, if real property,
satisfies the requirements of such proposal, or
whether additional real property would be
required;
[(G) an explanation of how such donation, if
real property, was secured, including if
eminent domain was used;
[(H) the impact of such proposal on staffing
requirements; and
[(I) other factors that the Commissioner or
Administrator determines to be relevant.
[(6) Unconditional monetary donations.--A monetary
donation shall be made unconditionally, although the
donor may specify--
[(A) the port of entry facility or facilities
to be benefitted from such donation; and
[(B) the timeframe during which such donation
shall be used.
[(7) Supplemental funding.--Real or personal property
(including monetary donations) or nonpersonal services
donated pursuant to paragraph (1) may be used in
addition to any other funding (including appropriated
funds), property, or services made available for the
same purpose.
[(8) Return of donations.--If the Commissioner or the
Administrator does not use the real property or
monetary donation donated pursuant to paragraph (1) for
the specific port of entry facility or facilities
designated by the donor or within the timeframe
specified by the donor, such donated real property or
money may be returned to the donor. No interest shall
be owed to the donor with respect to any donation of
funding provided under such paragraph (1) that is
returned pursuant to this paragraph.
[(9) Savings provisions.--Nothing in this subsection
may be construed to affect or alter the existing
authority of the Commissioner or the Administrator to
construct, alter, operate, and maintain port of entry
facilities.
[(g) Annual Reports.--The Commissioner, in collaboration
with the Administrator, shall annually submit to the Committee
on Homeland Security and the Committee on Transportation and
Infrastructure of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs and the
Committee on Environment and Public Works of the Senate a
report on the pilot program and activities undertaken pursuant
thereto in accordance with this Act.
[(h) Definitions.--In this section--
[(1) the term ``private sector entity'' means any
corporation, partnership, trust, association, or any
other private entity, or any officer, employee, or
agent thereof;
[(2) the term ``Commissioner'' means the Commissioner
of U.S. Customs and Border Protection; and (3) the term
``Administrator'' means the Administrator of General
Services.
[(i) Role of General Services Administration.--Under this
section, collaboration with the Administrator of General
Services is required only with respect to partnerships at land
ports of entry.]
* * * * * * *
TRADE FACILITATION AND TRADE ENFORCEMENT ACT OF 2015
* * * * * * *
TITLE IX--MISCELLANEOUS PROVISIONS
* * * * * * *
SEC. 907. REPORT ON CERTAIN U.S. CUSTOMS AND BORDER PROTECTION
AGREEMENTS.
(a) * * *
(b)
(1) * * *
(2) * * *
(3) the program under which U.S. Customs and Border
Protection collects a fee for the use of customs
services at designated facilities under section 236 of
the Trade and Tariff Act of 1984 (19 U.S.C. 58b); [or]
(4) the program established by subtitle B of title
VIII of this Act authorizing U.S. Customs and Border
Protection to establish preclearance operations in
foreign countries[.]; or
(5) the program for entering into reimbursable fee
agreements for the provision of U.S. Customs and Border
Protection services established by the Cross-Border
Trade Enhancement Act of 2016.
* * * * * * *
[all]