House Report 107-320 - CUSTOMS BORDER SECURITY ACT OF 2001

[House Report 107-320]
[From the U.S. Government Publishing Office]

107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-320

======================================================================

CUSTOMS BORDER SECURITY ACT OF 2001

_______

December 5, 2001.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Thomas, from the Committee on Ways and Means, submitted the
following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 3129]

[Including cost estimate of the Congressional Budget Office]

The Committee on Ways and Means, to whom was referred the
bill (H.R. 3129) to authorize appropriations for fiscal years
2002 and 2003 for the United States Customs Service for
antiterrorism, drug interdiction, and other operations, for the
Office of the United States Trade Representative, for the
United States International Trade Commission, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.

CONTENTS

Page
I. Introduction....................................................13
A. Purpose and Summary................................. 13
B. Background.......................................... 14
C. Legislative History................................. 15
II. Explanation of the Bill.........................................17
III. Votes of the Committee..........................................39
IV. Budget Effects..................................................41
A. Committee Estimate of Budgetary Effects............. 41
B. Statement Regarding New Budget Authority and Tax
Expenditures....................................... 41
C. Cost Estimate Prepared by the Congressional Budget
Office............................................. 41
V. Other Matters to be Discussed Under the Rules of the House......45
A. Committee Oversight Findings and Recommendations.... 45
B. Summary of Findings and Recommendations of the
Committee on Government Reform and Oversight....... 45
C. Constitutional Authority Statement.................. 45
VI. Changes in Existing Law Made by the Bill, as Reported...........45
VII. Dissenting Views................................................56

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Customs Border Security Act of 2001''.

SEC. 2. TABLE OF CONTENTS.

The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.

TITLE I--UNITED STATES CUSTOMS SERVICE

Subtitle A--Drug Enforcement and Other Noncommercial and Commercial
Operations

Sec. 101. Authorization of appropriations for noncommercial operations,
commercial operations, and air and marine interdiction.
Sec. 102. Antiterrorist and illicit narcotics detection equipment for
the United States-Mexico border, United States-Canada border, and
Florida and the Gulf Coast seaports.
Sec. 103. Compliance with performance plan requirements.

Subtitle B--Child Cyber-Smuggling Center of the Customs Service

Sec. 111. Authorization of appropriations for program to prevent child
pornography/child sexual exploitation.

Subtitle C--Personnel Provisions

Chapter 1--Overtime And Premium Pay of Officers of the Customs Service

Sec. 121. Correction relating to fiscal year cap.
Sec. 122. Correction relating to overtime pay.
Sec. 123. Correction relating to premium pay.
Sec. 124. Use of savings from payment of premium pay.
Sec. 125. Effective date.

Chapter 2--Miscellaneous Provisions

Sec. 131. Additional Customs Service officers for United States-Canada
border.
Sec. 132. Study and report relating to personnel practices of the
Customs Service.
Sec. 133. Study and report relating to accounting and auditing
procedures of the Customs Service.
Sec. 134. Establishment and implementation of cost accounting system;
reports.
Sec. 135. Study and report relating to timeliness of prospective
rulings.
Sec. 136. Study and report relating to Customs user fees.

Subtitle D--Antiterrorism Provisions

Sec. 141. Immunity for United States officials that act in good faith.
Sec. 142. Emergency adjustments to offices, ports of entry, or staffing
of the Customs Service.
Sec. 143. Mandatory advanced electronic information for cargo and
passengers.
Sec. 144. Border search authority for certain contraband in outbound
mail.
Sec. 145. Authorization of appropriations for reestablishment of
Customs operations in New York City.

Subtitle E--Textile Transshipment Provisions

Sec. 151. GAO audit of textile transshipment monitoring by Customs
Service.
Sec. 152. Authorization of appropriations for textile transshipment
enforcement operations.
Sec. 153. Implementation of the African Growth and Opportunity Act.

TITLE II--OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

Sec. 201. Authorization of appropriations.

TITLE III--UNITED STATES INTERNATIONAL TRADE COMMISSION

Sec. 301. Authorization of appropriations.

TITLE IV--OTHER TRADE PROVISIONS

Sec. 401. Increase in aggregate value of articles exempt from duty
acquired abroad by United States residents.
Sec. 402. Regulatory audit procedures.

TITLE I--UNITED STATES CUSTOMS SERVICE

Subtitle A--Drug Enforcement and Other Noncommercial and Commercial
Operations

SEC. 101. AUTHORIZATION OF APPROPRIATIONS FOR NONCOMMERCIAL OPERATIONS,
COMMERCIAL OPERATIONS, AND AIR AND MARINE
INTERDICTION.

(a) Noncommercial Operations.--Section 301(b)(1) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(b)(1))
is amended--
(1) in subparagraph (A) to read as follows:
``(A) $886,513,000 for fiscal year 2002.''; and
(2) in subparagraph (B) to read as follows:
``(B) $909,471,000 for fiscal year 2003.''.
(b) Commercial Operations.--
(1) In general.--Section 301(b)(2)(A) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(b)(2)(A)) is amended--
(A) in clause (i) to read as follows:
``(i) $1,603,482,000 for fiscal year 2002.''; and
(B) in clause (ii) to read as follows:
``(ii) $1,645,009,000 for fiscal year 2003.''.
(2) Automated commercial environment computer system.--Of the
amount made available for each of fiscal years 2002 and 2003
under section 301(b)(2)(A) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(2)(A)), as
amended by paragraph (1), $308,000,000 shall be available until
expended for each such fiscal year for the development,
establishment, and implementation of the Automated Commercial
Environment computer system.
(3) Reports.--Not later than 90 days after the date of the
enactment of this Act, and not later than each subsequent 90-
day period, the Commissioner of Customs shall prepare and
submit to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate a
report demonstrating that the development and establishment of
the Automated Commercial Environment computer system is being
carried out in a cost-effective manner and meets the
modernization requirements of title VI of the North American
Free Trade Agreements Implementation Act.
(c) Air and Marine Interdiction.--Section 301(b)(3) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(b)(3))
is amended--
(1) in subparagraph (A) to read as follows:
``(A) $181,860,000 for fiscal year 2002.''; and
(2) in subparagraph (B) to read as follows:
``(B) $186,570,000 for fiscal year 2003.''.
(d) Submission of Out-Year Budget Projections.--Section 301(a) of the
Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(a)) is amended by adding at the end the following:
``(3) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the Commissioner of Customs shall submit to the Committee on Ways and
Means of the House of Representatives and the Committee on Finance of
the Senate the projected amount of funds for the succeeding fiscal year
that will be necessary for the operations of the Customs Service as
provided for in subsection (b).''.

SEC. 102. ANTITERRORIST AND ILLICIT NARCOTICS DETECTION EQUIPMENT FOR
THE UNITED STATES-MEXICO BORDER, UNITED STATES-
CANADA BORDER, AND FLORIDA AND THE GULF COAST
SEAPORTS.

(a) Fiscal Year 2002.--Of the amounts made available for fiscal year
2002 under section 301(b)(1)(A) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(A)), as amended by
section 101(a) of this Act, $90,244,000 shall be available until
expended for acquisition and other expenses associated with
implementation and deployment of antiterrorist and illicit narcotics
detection equipment along the United States-Mexico border, the United
States-Canada border, and Florida and the Gulf Coast seaports, as
follows:
(1) United states-mexico border.--For the United States-
Mexico border, the following:
(A) $6,000,000 for 8 Vehicle and Container Inspection
Systems (VACIS).
(B) $11,200,000 for 5 mobile truck x-rays with
transmission and backscatter imaging.
(C) $13,000,000 for the upgrade of 8 fixed-site truck
x-rays from the present energy level of 450,000
electron volts to 1,000,000 electron volts (1-MeV).
(D) $7,200,000 for 8 1-MeV pallet x-rays.
(E) $1,000,000 for 200 portable contraband detectors
(busters) to be distributed among ports where the
current allocations are inadequate.
(F) $600,000 for 50 contraband detection kits to be
distributed among all southwest border ports based on
traffic volume.
(G) $500,000 for 25 ultrasonic container inspection
units to be distributed among all ports receiving
liquid-filled cargo and to ports with a hazardous
material inspection facility.
(H) $2,450,000 for 7 automated targeting systems.
(I) $360,000 for 30 rapid tire deflator systems to be
distributed to those ports where port runners are a
threat.
(J) $480,000 for 20 portable Treasury Enforcement
Communications Systems (TECS) terminals to be moved
among ports as needed.
(K) $1,000,000 for 20 remote watch surveillance
camera systems at ports where there are suspicious
activities at loading docks, vehicle queues, secondary
inspection lanes, or areas where visual surveillance or
observation is obscured.
(L) $1,254,000 for 57 weigh-in-motion sensors to be
distributed among the ports with the greatest volume of
outbound traffic.
(M) $180,000 for 36 AM traffic information radio
stations, with 1 station to be located at each border
crossing.
(N) $1,040,000 for 260 inbound vehicle counters to be
installed at every inbound vehicle lane.
(O) $950,000 for 38 spotter camera systems to counter
the surveillance of customs inspection activities by
persons outside the boundaries of ports where such
surveillance activities are occurring.
(P) $390,000 for 60 inbound commercial truck
transponders to be distributed to all ports of entry.
(Q) $1,600,000 for 40 narcotics vapor and particle
detectors to be distributed to each border crossing.
(R) $400,000 for license plate reader automatic
targeting software to be installed at each port to
target inbound vehicles.
(2) United states-canada border.--For the United States-
Canada border, the following:
(A) $3,000,000 for 4 Vehicle and Container Inspection
Systems (VACIS).
(B) $8,800,000 for 4 mobile truck x-rays with
transmission and backscatter imaging.
(C) $3,600,000 for 4 1-MeV pallet x-rays.
(D) $250,000 for 50 portable contraband detectors
(busters) to be distributed among ports where the
current allocations are inadequate.
(E) $300,000 for 25 contraband detection kits to be
distributed among ports based on traffic volume.
(F) $240,000 for 10 portable Treasury Enforcement
Communications Systems (TECS) terminals to be moved
among ports as needed.
(G) $400,000 for 10 narcotics vapor and particle
detectors to be distributed to each border crossing
based on traffic volume.
(3) Florida and gulf coast seaports.--For Florida and the
Gulf Coast seaports, the following:
(A) $4,500,000 for 6 Vehicle and Container Inspection
Systems (VACIS).
(B) $11,800,000 for 5 mobile truck x-rays with
transmission and backscatter imaging.
(C) $7,200,000 for 8 1-MeV pallet x-rays.
(D) $250,000 for 50 portable contraband detectors
(busters) to be distributed among ports where the
current allocations are inadequate.
(E) $300,000 for 25 contraband detection kits to be
distributed among ports based on traffic volume.
(b) Fiscal Year 2003.--Of the amounts made available for fiscal year
2003 under section 301(b)(1)(B) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(B)), as amended by
section 101(a) of this Act, $9,000,000 shall be available until
expended for the maintenance and support of the equipment and training
of personnel to maintain and support the equipment described in
subsection (a).
(c) Acquisition of Technologically Superior Equipment; Transfer of
Funds.--
(1) In general.--The Commissioner of Customs may use amounts
made available for fiscal year 2002 under section 301(b)(1)(A)
of the Customs Procedural Reform and Simplification Act of 1978
(19 U.S.C. 2075(b)(1)(A)), as amended by section 101(a) of this
Act, for the acquisition of equipment other than the equipment
described in subsection (a) if such other equipment--
(A)(i) is technologically superior to the equipment
described in subsection (a); and
(ii) will achieve at least the same results at a cost
that is the same or less than the equipment described
in subsection (a); or
(B) can be obtained at a lower cost than the
equipment described in subsection (a).
(2) Transfer of funds.--Notwithstanding any other provision
of this section, the Commissioner of Customs may reallocate an
amount not to exceed 10 percent of--
(A) the amount specified in any of subparagraphs (A)
through (R) of subsection (a)(1) for equipment
specified in any other of such subparagraphs (A)
through (R);
(B) the amount specified in any of subparagraphs (A)
through (G) of subsection (a)(2) for equipment
specified in any other of such subparagraphs (A)
through (G); and
(C) the amount specified in any of subparagraphs (A)
through (E) of subsection (a)(3) for equipment
specified in any other of such subparagraphs (A)
through (E).

SEC. 103. COMPLIANCE WITH PERFORMANCE PLAN REQUIREMENTS.

As part of the annual performance plan for each of the fiscal years
2002 and 2003 covering each program activity set forth in the budget of
the United States Customs Service, as required under section 1115 of
title 31, United States Code, the Commissioner of Customs shall
establish performance goals, performance indicators, and comply with
all other requirements contained in paragraphs (1) through (6) of
subsection (a) of such section with respect to each of the activities
to be carried out pursuant to sections 111 and 112 of this Act.

Subtitle B--Child Cyber-Smuggling Center of the Customs Service

SEC. 111. AUTHORIZATION OF APPROPRIATIONS FOR PROGRAM TO PREVENT CHILD
PORNOGRAPHY/CHILD SEXUAL EXPLOITATION.

(a) Authorization of Appropriations.--There is authorized to be
appropriated to the Customs Service $10,000,000 for fiscal year 2002 to
carry out the program to prevent child pornography/child sexual
exploitation established by the Child Cyber-Smuggling Center of the
Customs Service.
(b) Use of Amounts for Child Pornography Cyber Tipline.--Of the
amount appropriated under subsection (a), the Customs Service shall
provide 3.75 percent of such amount to the National Center for Missing
and Exploited Children for the operation of the child pornography cyber
tipline of the Center and for increased public awareness of the
tipline.

Subtitle C--Personnel Provisions

CHAPTER 1--OVERTIME AND PREMIUM PAY OF OFFICERS OF THE CUSTOMS SERVICE

SEC. 121. CORRECTION RELATING TO FISCAL YEAR CAP.

Section 5(c)(1) of the Act of February 13, 1911 (19 U.S.C. 267(c)(1))
is amended to read as follows:
``(1) Fiscal year cap.--The aggregate of overtime pay under
subsection (a) (including commuting compensation under
subsection (a)(2)(B)) that a customs officer may be paid in any
fiscal year may not exceed $30,000, except that--
``(A) the Commissioner of Customs or his or her
designee may waive this limitation in individual cases
in order to prevent excessive costs or to meet
emergency requirements of the Customs Service; and
``(B) upon certification by the Commissioner of
Customs to the Chairmen of the Committee on Ways and
Means of the House of Representatives and the Committee
on Finance of the Senate that the Customs Service has
in operation a system that provides accurate and
reliable data on a daily basis on overtime and premium
pay that is being paid to customs officers, the
Commissioner is authorized to pay any customs officer
for one work assignment that would result in the
overtime pay of that officer exceeding the $30,000
limitation imposed by this paragraph, in addition to
any overtime pay that may be received pursuant to a
waiver under subparagraph (A).''.

SEC. 122. CORRECTION RELATING TO OVERTIME PAY.

Section 5(a)(1) of the Act of February 13, 1911 (19 U.S.C.
267(a)(1)), is amended by inserting after the first sentence the
following new sentences: ``Overtime pay provided under this subsection
shall not be paid to any customs officer unless such officer actually
performed work during the time corresponding to such overtime pay. The
preceding sentence shall not apply with respect to the payment of an
award or settlement to a customs officer who was unable to perform
overtime work as a result of a personnel action in violation of section
5596 of title 5, United States Code, section 6(d) of the Fair Labor
Standards Act of 1938, or title VII of the Civil Rights Act of 1964.''.

SEC. 123. CORRECTION RELATING TO PREMIUM PAY.

(a) In General.--Section 5(b)(4) of the Act of February 13, 1911 (19
U.S.C. 267(b)(4)), is amended by adding at the end the following new
sentences: ``Premium pay provided under this subsection shall not be
paid to any customs officer unless such officer actually performed work
during the time corresponding to such premium pay. The preceding
sentence shall not apply with respect to the payment of an award or
settlement to a customs officer who was unable to perform work during
the time described in the preceding sentence as a result of a personnel
action in violation of section 5596 of title 5, United States Code,
section 6(d) of the Fair Labor Standards Act of 1938, or title VII of
the Civil Rights Act of 1964.''.
(b) Corrections Relating to Night Work Differential Pay.--Section
5(b)(1) of such Act (19 U.S.C. 267(b)(1)) is amended to read as
follows:
``(1) Night work differential.--
``(A) 5 p.m. to midnight.--(i) If any hours of
regularly scheduled work of a customs officer occur
during the hours of 5 p.m. and 12 a.m., the officer is
entitled to pay for such hours of work (except for work
to which paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay amounting to
not less than 18 percent of that basic rate.
``(ii) If the regularly scheduled work of a customs
officer is 4 p.m. to 12:00 a.m., the officer is
entitled to pay for work during such period (except for
work to which paragraph (2) or (3) applies) at the
officer's hourly rate of basic pay plus premium pay
amounting to not less than 18 percent of that basic
rate.
``(B) Midnight to 6 a.m.--(i) If any hours of
regularly scheduled work of a customs officer occur
during the hours of 12 a.m. and 6 a.m., the officer is
entitled to pay for such hours of work (except for work
to which paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay amounting to
25 percent of that basic rate.
``(ii) If the regularly scheduled work of a customs
officer is 12 a.m. to 8:00 a.m., the officer is
entitled to pay for work during such period (except for
work to which paragraph (2) or (3) applies) at the
officer's hourly rate of basic pay plus premium pay
amounting to 25 percent of that basic rate.''.

SEC. 124. USE OF SAVINGS FROM PAYMENT OF PREMIUM PAY.

Section 5 of the Act of February 13, 1911 (19 U.S.C. 267), is
amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following:
``(e) Use of Savings From Payment of Premium Pay.--
``(1) Use of amounts.--For fiscal year 2002, the Secretary of
the Treasury--
``(A) shall determine under paragraph (2) the amount
of savings from the payment of premium pay to customs
officers; and
``(B) shall use an amount from the Customs User Fee
Account equal to such amount determined under paragraph
(2) for additional premium pay described in clauses (i)
and (ii) of subsection (b)(1)(A).
``(2) Determination of savings amount.--The Secretary shall
calculate an amount equal to the difference between--
``(A) the estimated cost for premium pay that would
have been incurred during fiscal year 2002 if this
section, as in effect on the day before the date of the
enactment of section 123 of the Customs Border Security
Act of 2001, had governed such costs; and
``(B) the actual cost for premium pay that is
incurred during fiscal year 2002 under this section, as
amended by section 123 of the Customs Border Security
Act of 2001.''.

SEC. 125. EFFECTIVE DATE.

This chapter, and the amendments made by this chapter, shall apply
with respect to pay periods beginning on or after 15 days after the
date of the enactment of this Act.

CHAPTER 2--MISCELLANEOUS PROVISIONS

SEC. 131. ADDITIONAL CUSTOMS SERVICE OFFICERS FOR UNITED STATES-CANADA
BORDER.

Of the amount made available for fiscal year 2002 under paragraphs
(1) and (2)(A) of section 301(b) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)), as amended by section
101 of this Act, $25,000,000 shall be available until expended for the
Customs Service to hire approximately 285 additional Customs Service
officers to address the needs of the offices and ports along the United
States-Canada border.

SEC. 132. STUDY AND REPORT RELATING TO PERSONNEL PRACTICES OF THE
CUSTOMS SERVICE.

(a) Study.--The Commissioner of Customs shall conduct a study of
current personnel practices of the Customs Service, including an
overview of performance standards and the effect and impact of the
collective bargaining process on druginterdiction efforts of the
Customs Service and a comparison of duty rotation policies of the
Customs Service and other Federal agencies that employ similarly-
situated personnel.
(b) Report.--Not later than 120 days after the date of the enactment
of this Act, the Commissioner of Customs shall submit to the Committee
on Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report containing the results of the study
conducted under subsection (a).

SEC. 133. STUDY AND REPORT RELATING TO ACCOUNTING AND AUDITING
PROCEDURES OF THE CUSTOMS SERVICE.

(a) Study.--(1) The Commissioner of Customs shall conduct a study of
actions by the Customs Service to ensure that appropriate training is
being provided to Customs Service personnel who are responsible for
financial auditing of importers.
(2) In conducting the study, the Commissioner--
(A) shall specifically identify those actions taken to comply
with provisions of law that protect the privacy and trade
secrets of importers, such as section 552(b) of title 5, United
States Code, and section 1905 of title 18, United States Code;
and
(B) shall provide for public notice and comment relating to
verification of the actions described in subparagraph (A).
(b) Report.--Not later than 6 months after the date of the enactment
of this Act, the Commissioner of Customs shall submit to the Committee
on Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report containing the results of the study
conducted under subsection (a).

SEC. 134. ESTABLISHMENT AND IMPLEMENTATION OF COST ACCOUNTING SYSTEM;
REPORTS.

(a) Establishment and Implementation.--
(1) In general.--Not later than September 30, 2003, the
Commissioner of Customs shall, in accordance with the audit of
the Customs Service's fiscal years 2000 and 1999 financial
statements (as contained in the report of the Office of the
Inspector General of the Department of the Treasury issued on
February 23, 2001), establish and implement a cost accounting
system for expenses incurred in both commercial and
noncommercial operations of the Customs Service.
(2) Additional requirement.--The cost accounting system
described in paragraph (1) shall provide for an identification
of expenses based on the type of operation, the port at which
the operation took place, the amount of time spent on the
operation by personnel of the Customs Service, and an
identification of expenses based on any other appropriate
classification necessary to provide for an accurate and
complete accounting of the expenses.
(b) Reports.--Beginning on the date of the enactment of this Act and
ending on the date on which the cost accounting system described in
subsection (a) is fully implemented, the Commissioner of Customs shall
prepare and submit to Congress on a quarterly basis a report on the
progress of implementing the cost accounting system pursuant to
subsection (a).

SEC. 135. STUDY AND REPORT RELATING TO TIMELINESS OF PROSPECTIVE
RULINGS.

(a) Study.--The Comptroller General shall conduct a study on the
extent to which the Office of Regulations and Rulings of the Customs
Service has made improvements to decrease the amount of time to issue
prospective rulings from the date on which a request for the ruling is
received by the Customs Service.
(b) Report.--Not later than 1 year after the date of the enactment of
this Act, the Comptroller General shall submit to the Committee on Ways
and Means of the House of Representatives and the Committee on Finance
of the Senate a report containing the results of the study conducted
under subsection (a).
(c) Definition.--In this section, the term ``prospective ruling''
means a ruling that is requested by an importer on goods that are
proposed to be imported into the United States and that relates to the
proper classification, valuation, or marking of such goods.

SEC. 136. STUDY AND REPORT RELATING TO CUSTOMS USER FEES.

(a) Study.--The Comptroller General shall conduct a study on the
extent to which the amount of each customs user fee imposed under
section 13031(a) of the Consolidated Omnibus Budget Reconciliation Act
of 1985 (19 U.S.C. 58c(a)) is commensurate with the level of services
provided by the Customs Service relating to the fee so imposed.
(b) Report.--Not later than 120 days after the date of the enactment
of this Act, the Comptroller General shall submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report in classified form containing--
(1) the results of the study conducted under subsection (a);
and
(2) recommendations for the appropriate amount of the customs
user fees if such results indicate that the fees are not
commensurate with the level of services provided by the Customs
Service.

Subtitle D--Antiterrorism Provisions

SEC. 141. IMMUNITY FOR UNITED STATES OFFICIALS THAT ACT IN GOOD FAITH.

(a) Immunity.--Section 3061 of the Revised Statutes of the United
States (19 U.S.C. 482) is amended--
(1) by striking ``Any of the officers'' and inserting ``(a)
Any of the officers''; and
(2) by adding at the end the following:
``(b) Any officer or employee of the United States conducting a
search of a person pursuant to subsection (a) shall not be held liable
for any civil damages as a result of such search if the officer or
employee performed the search in good faith.''.
(b) Requirement To Post Policy and Procedures for Searches of
Passengers.--Not later than 30 days after the date of the enactment of
this Act, the Commissioner of the Customs Service shall ensure that at
each Customs border facility appropriate notice is posted that provides
a summary of the policy and procedures of the Customs Service for
searching passengers, including a statement of the policy relating to
the prohibition on the conduct of profiling of passengers based on
gender, race, color, religion, or ethnic background.

SEC. 142. EMERGENCY ADJUSTMENTS TO OFFICES, PORTS OF ENTRY, OR STAFFING
OF THE CUSTOMS SERVICE.

Section 318 of the Tariff Act of 1930 (19 U.S.C. 1318) is amended--
(1) by striking ``Whenever the President'' and inserting
``(a) Whenever the President''; and
(2) by adding at the end the following:
``(b)(1) Notwithstanding any other provision of law, the Secretary of
the Treasury, when necessary to respond to a national emergency
declared under the National Emergencies Act (50 U.S.C. 1601 et seq.) or
to a specific threat to human life or national interests, is authorized
to take the following actions on a temporary basis:
``(A) Eliminate, consolidate, or relocate any office or port
of entry of the Customs Service.
``(B) Modify hours of service, alter services rendered at any
location, or reduce the number of employees at any location.
``(C) Take any other action that may be necessary to directly
respond to the national emergency or specific threat.
``(2) Notwithstanding any other provision of law, the Commissioner of
Customs, when necessary to respond to a specific threat to human life
or national interests, is authorized to close temporarily any Customs
office or port of entry or take any other lesser action that may be
necessary to respond to the specific threat.
``(3) The Secretary of the Treasury or the Commissioner of Customs,
as the case may be, shall notify the Committee on Ways and Means of the
House of Representatives and the Committee on Finance of the Senate not
later than 72 hours after taking any action under paragraph (1) or
(2).''.

SEC. 143. MANDATORY ADVANCED ELECTRONIC INFORMATION FOR CARGO AND
PASSENGERS.

(a) Cargo Information.--
(1) In general.--Section 431(b) of the Tariff Act of 1930 (19
U.S.C. 1431(b)) is amended--
(A) in the first sentence, by striking ``Any
manifest'' and inserting ``(1) Any manifest''; and
(B) by adding at the end the following:
``(2) In addition to any other requirement under this section, for
each land, air, or vessel carrier required to make entry or obtain
clearance under the customs laws of the United States, the pilot, the
master, operator, or owner of such carrier (or the authorized agent of
such operator or owner) shall provide by electronic transmission cargo
manifest information in advance of such entry or clearance in such
manner, time, and form as prescribed under regulations by the
Secretary. TheSecretary may exclude any class of land, air, or vessel
carrier for which the Secretary concludes the requirements of this
subparagraph are not necessary.''.
(2) Conforming amendments.--Subparagraphs (A) and (C) of
section 431(d)(1) of such Act are each amended by inserting
before the semicolon ``or subsection (b)(2)''.
(b) Passenger Information.--Part II of title IV of the Tariff Act of
1930 (19 U.S.C. 1431 et seq.) is amended by inserting after section 431
the following:

``SEC. 432. PASSENGER AND CREW MANIFEST INFORMATION REQUIRED FOR LAND,
AIR, OR VESSEL CARRIERS.

``(a) In General.--For every person arriving or departing on a land,
air, or vessel carrier required to make entry or obtain clearance under
the customs laws of the United States, the pilot, the master, operator,
or owner of such carrier (or the authorized agent of such operator or
owner) shall provide by electronic transmission manifest information
described in subsection (b) in advance of such entry or clearance in
such manner, time, and form as prescribed under regulations by the
Secretary.
``(b) Information Described.--The information described in this
subsection shall include for each person described in subsection (a),
the person's--
``(1) full name;
``(2) date of birth and citizenship;
``(3) gender;
``(4) passport number and country of issuance;
``(5) United States visa number or resident alien card
number, as applicable;
``(6) passenger name record; and
``(7) such additional information that the Secretary, by
regulation, determines is reasonably necessary to ensure
aviation and maritime safety pursuant to the laws enforced or
administered by the Customs Service.''.
(c) Definition.--Section 401 of the Tariff Act of 1930 (19 U.S.C.
1401) is amended by adding at the end the following:
``(t) The term `land, air, or vessel carrier' means a land, air, or
vessel carrier, as the case may be, that transports goods or passengers
for payment or other consideration, including money or services
rendered.''.
(d) Effective Date.--The amendments made by this section shall take
effect beginning 45 days after the date of the enactment of this Act.

SEC. 144. BORDER SEARCH AUTHORITY FOR CERTAIN CONTRABAND IN OUTBOUND
MAIL.

The Tariff Act of 1930 is amended by inserting after section 582 the
following:

``SEC. 583. EXAMINATION OF OUTBOUND MAIL.

``(a) Examination.--
``(1) In general.--For purposes of ensuring compliance with
the Customs laws of the United States and other laws enforced
by the Customs Service, including the provisions of law
described in paragraph (2), a Customs officer may, subject to
the provisions of this section, stop and search at the border,
without a search warrant, mail of domestic origin transmitted
for export by the United States Postal Service and foreign mail
transiting the United States that is being imported or exported
by the United States Postal Service.
``(2) Provisions of law described.--The provisions of law
described in this paragraph are the following:
``(A) Section 5316 of title 31, United States Code
(relating to reports on exporting and importing
monetary instruments).
``(B) Sections 1461, 1463, 1465, and 1466 and chapter
110 of title 18, United States Code (relating to
obscenity and child pornography).
``(C) Section 1003 of the Controlled Substances
Import and Export Act (21 U.S.C. 953; relating to
exportation of controlled substances).
``(D) The Export Administration Act of 1979 (50
U.S.C. app. 2401 et seq.).
``(E) Section 38 of the Arms Export Control Act (22
U.S.C. 2778).
``(F) The International Emergency Economic Powers Act
(50 U.S.C. 1701 et seq.).
``(b) Search of Mail Not Sealed Against Inspection and Other Mail.--
Mail not sealed against inspection under the postal laws and
regulations of the United States, mail which bears a customs
declaration, and mail with respect to which the sender or addressee has
consented in writing to search, may be searched by a Customs officer.
``(c) Search of Mail Sealed Against Inspection.--(1) Mail sealed
against inspection under the postal laws and regulations of the United
States may be searched by a Customs officer, subject to paragraph (2),
upon reasonable cause to suspect that such mail contains one or more of
the following:
``(A) Monetary instruments, as defined in section 1956 of
title 18, United States Code.
``(B) A weapon of mass destruction, as defined in section
2332a(b) of title 18, United States Code.
``(C) A drug or other substance listed in schedule I, II,
III, or IV in section 202 of the Controlled Substances Act (21
U.S.C. 812).
``(D) National defense and related information transmitted in
violation of any of sections 793 through 798 of title 18,
United States Code.
``(E) Merchandise mailed in violation of section 1715 or 1716
of title 18, United States Code.
``(F) Merchandise mailed in violation of any provision of
chapter 71 (relating to obscenity) or chapter 110 (relating to
sexual exploitation and other abuse of children) of title 18,
United States Code.
``(G) Merchandise mailed in violation of the Export
Administration Act of 1979 (50 U.S.C. app. 2401 et seq.).
``(H) Merchandise mailed in violation of section 38 of the
Arms Export Control Act (22 U.S.C. 2778).
``(I) Merchandise mailed in violation of the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.).
``(J) Merchandise mailed in violation of the Trading with the
Enemy Act (50 U.S.C. app. 1 et seq.).
``(K) Merchandise subject to any other law enforced by the
Customs Service.
``(2) No person acting under authority of paragraph (1) shall read,
or authorize any other person to read, any correspondence contained in
mail sealed against inspection unless prior to so reading--
``(A) a search warrant has been issued pursuant to Rule 41,
Federal Rules of Criminal Procedure; or
``(B) the sender or addressee has given written authorization
for such reading.''.

SEC. 145. AUTHORIZATION OF APPROPRIATIONS FOR REESTABLISHMENT OF
CUSTOMS OPERATIONS IN NEW YORK CITY.

(a) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated for
the reestablishment of operations of the Customs Service in New
York, New York, such sums as may be necessary for fiscal year
2002.
(2) Operations described.--The operations referred to in
paragraph (1) include, but are not limited to, the following:
(A) Operations relating to the Port Director of New
York City, the New York Customs Management Center
(including the Director of Field Operations), and the
Special Agent-In-Charge for New York.
(B) Commercial operations, including textile
enforcement operations and salaries and expenses of--
(i) trade specialists who determine the
origin and value of merchandise;
(ii) analysts who monitor the entry data into
the United States of textiles and textile
products; and
(iii) Customs officials who work with foreign
governments to examine textile makers and
verify entry information.
(b) Availability.--Amounts appropriated pursuant to the authorization
of appropriations under subsection (a) are authorized to remain
available until expended.

Subtitle E--Textile Transshipment Provisions

SEC. 151. GAO AUDIT OF TEXTILE TRANSSHIPMENT MONITORING BY CUSTOMS
SERVICE.

(a) GAO Audit.--The Comptroller General of the United States shall
conduct an audit of the system established and carried out by the
Customs Service to monitor textile transshipment.
(b) Report.--Not later than 9 months after the date of enactment of
this Act, the Comptroller General shall submit to the Committee on Ways
and Means of the House of Representatives and Committee on Finance of
the Senate a report that contains the results of the study conducted
under subsection (a), including recommendations for improvements to the
transshipment monitoring system if applicable.
(c) Transshipment Described.--Transshipment within the meaning of
this section has occurred when preferential treatment under any
provision of law has been claimed for a textile or apparel article on
the basis of material false information concerning the country of
origin, manufacture, processing, or assembly of the article or any of
its components. For purposes of the preceding sentence, false
information is material if disclosure of the true information would
mean or would have meant that the article is or was ineligible for
preferential treatment under the provision of law in question.

SEC. 152. AUTHORIZATION OF APPROPRIATIONS FOR TEXTILE TRANSSHIPMENT
ENFORCEMENT OPERATIONS.

(a) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated for
textile transshipment enforcement operations of the Customs
Service $9,500,000 for fiscal year 2002.
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) are
authorized to remain available until expended.
(b) Use of Funds.--Of the amount appropriated pursuant to the
authorization of appropriations under subsection (a), the following
amounts are authorized to be made available for the following purposes:
(1) Import specialists.--$1,463,000 for 21 Customs import
specialists to be assigned to selected ports for documentation
review to support detentions and exclusions and 1 additional
Customs import specialist assigned to the Customs headquarters
textile program to administer the program and provide
oversight.
(2) Inspectors.--$652,080 for 10 Customs inspectors to be
assigned to selected ports to examine targeted high-risk
shipments.
(3) Investigators.--(A) $1,165,380 for 10 investigators to be
assigned to selected ports to investigate instances of
smuggling, quota and trade agreement circumvention, and use of
counterfeit visas to enter inadmissible goods.
(B) $149,603 for 1 investigator to be assigned to Customs
headquarters textile program to coordinate and ensure
implementation of textile production verification team results
from an investigation perspective.
(4) International trade specialists.--$226,500 for 3
international trade specialists to be assigned to Customs
headquarters to be dedicated to illegal textile transshipment
policy issues and other free trade agreement enforcement
issues.
(5) Permanent import specialists for hong kong.--$500,000 for
2 permanent import specialist positions and $500,000 for 2
investigators to be assigned to Hong Kong to work with Hong
Kong and other government authorities in Southeast Asia to
assist such authorities pursue proactive enforcement of
bilateral trade agreements.
(6) Various permanent trade positions.--$3,500,000 for the
following:
(A) 2 permanent positions to be assigned to the
Customs attache office in Central America to address
trade enforcement issues for that region.
(B) 2 permanent positions to be assigned to the
Customs attache office in South Africa to address trade
enforcement issues pursuant to the African Growth and
Opportunity Act (title I of Public Law 106-200).
(C) 4 permanent positions to be assigned to the
Customs attache office in Mexico to address the threat
of illegal textile transshipment through Mexico and
other related issues under the North American Free
Trade Agreement Act.
(D) 2 permanent positions to be assigned to the
Customs attache office in Seoul, South Korea, to
address the trade issues in the geographic region.
(E) 2 permanent positions to be assigned to the
proposed Customs attache office in New Delhi, India, to
address the threat of illegal textile transshipment and
other trade enforcement issues.
(F) 2 permanent positions to be assigned to the
Customs attache office in Rome, Italy, to address trade
enforcement issues in the geographic region, including
issues under free trade agreements with Jordan and
Israel.
(7) Attorneys.--$179,886 for 2 attorneys for the Office of
the Chief Counsel of the Customs Service to pursue cases
regarding illegal textile transshipment.
(8) Auditors.--$510,000 for 6 Customs auditors to perform
internal control reviews and document and record reviews of
suspect importers.
(9) Additional travel funds.--$250,000 for deployment of
additional textile production verification teams to sub-Saharan
Africa.
(10) Training.--(A) $75,000 for training of Customs
personnel.
(B) $200,000 for training for foreign counterparts in risk
management analytical techniques and for teaching factory
inspection techniques, model law Development, and enforcement
techniques.
(11) Outreach.--$60,000 for outreach efforts to United States
importers.

SEC. 153. IMPLEMENTATION OF THE AFRICAN GROWTH AND OPPORTUNITY ACT.

Of the amount made available for fiscal year 2002 under section
301(b)(2)(A) of the Customs Procedural Reform and Simplification Act of
1978 (19 U.S.C. 2075(b)(2)(A)), as amended by section 101(b)(1) of this
Act, $1,317,000 shall be available until expended for the Customs
Service to provide technical assistance to help sub-Saharan Africa
countries develop and implement effective visa and anti-transshipment
systems as required by the African Growth and Opportunity Act (title I
of Public Law 106-200), as follows:
(1) Travel funds.--$600,000 for import specialists, special
agents, and other qualified Customs personnel to travel to sub-
Saharan Africa countries to provide technical assistance in
developing and implementing effective visa and anti-
transshipment systems.
(2) Import specialists.--$266,000 for 4 import specialists to
be assigned to Customs headquarters to be dedicated to
providing technical assistance to sub-Saharan African countries
for developing and implementing effective visa and anti-
transshipment systems.
(3) Data reconciliation analysts.--$151,000 for 2 data
reconciliation analysts to review apparel shipments.
(4) Special agents.--$300,000 for 2 special agents to be
assigned to Customs headquarters to be available to provide
technical assistance to Sub-Saharan African countries in the
performance of investigations and other enforcement
initiatives.

TITLE II--OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

SEC. 201. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--Section 141(g)(1) of the Trade Act of 1974 (19
U.S.C. 2171(g)(1)) is amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking
``not to exceed'';
(B) in clause (i) to read as follows:
``(i) $30,000,000 for fiscal year 2002.''; and
(C) in clause (ii) to read as follows:
``(ii) $31,000,000 for fiscal year 2003.''; and
(2) in subparagraph (B)--
(A) in clause (i), by adding ``and'' at the end;
(B) by striking clause (ii); and
(C) by redesignating clause (iii) as clause (ii).
(b) Submission of Out-Year Budget Projections.--Section 141(g) of the
Trade Act of 1974 (19 U.S.C. 2171(g)) is amended by adding at the end
the following:
``(3) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the United States Trade Representative shall submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate the projected amount of funds for the succeeding
fiscal year that will be necessary for the Office to carry out its
functions.''.
(c) Additional Staff for Office of Assistant U.S. Trade
Representative for Congressional Affairs.--
(1) In general.--There is authorized to be appropriated such
sums as may be necessary for fiscal year 2002 for the salaries
and expenses of two additional legislative specialist employee
positions within the Office of the Assistant United States
Trade Representative for Congressional Affairs.
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) are
authorized to remain available until expended.

TITLE III--UNITED STATES INTERNATIONAL TRADE COMMISSION

SEC. 301. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--Section 330(e)(2)(A) of the Tariff Act of 1930 (19
U.S.C. 1330(e)(2)) is amended--
(1) in clause (i) to read as follows:
``(i) $51,400,000 for fiscal year 2002.''; and
(2) in clause (ii) to read as follows:
``(ii) $53,400,000 for fiscal year 2003.''.
(b) Submission of Out-Year Budget Projections.--Section 330(e) of the
Tariff Act of 1930 (19 U.S.C. 1330(e)(2)) is amended by adding at the
end the following:
``(4) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the Commission shall submit to the Committee on Ways and Means of the
House of Representatives and the Committee on Finance of the Senate the
projected amount of funds for the succeeding fiscal year that will be
necessary for the Commission to carry out its functions.''.

TITLE IV--OTHER TRADE PROVISIONS

SEC. 401. INCREASE IN AGGREGATE VALUE OF ARTICLES EXEMPT FROM DUTY
ACQUIRED ABROAD BY UNITED STATES RESIDENTS.

(a) In General.--Subheading 9804.00.65 of the Harmonized Tariff
Schedule of the United States is amended in the article description
column by striking ``$400'' and inserting ``$800''.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect 90 days after the date of the enactment of this Act.

SEC. 402. REGULATORY AUDIT PROCEDURES.

Section 509(b) of the Tariff Act of 1930 (19 U.S.C. 1509(b)) is
amended by adding at the end the following:
``(6)(A) If during the course of any audit concluded under
this subsection, the Customs Service identifies overpayments of
duties or fees or over-declarations of quantities or values
that are within the time period and scope of the audit that the
Customs Service has defined, then in calculating the loss of
revenue or monetary penalties under section 592, the Customs
Service shall treat the overpayments or over-declarations on
finally liquidated entries as an offset to any underpayments or
underdeclarations also identified on finally liquidated entries
if such overpayments or over-declarations were not made by the
person being audited for the purpose of violating any provision
of law.
``(B) Nothing in this paragraph shall be construed to
authorize a refund not otherwise authorized under section
520.''.

I. INTRODUCTION

A. Purpose and Summary

H.R. 3129, as amended, would authorize appropriations for
fiscal year FY 2002 and FY 2003 for the U.S. Customs Service,
including specific authorization for anti-terrorism, drug
interdiction and the prevention of child pornography. The bill
would also provide more funding to textile transshipment
efforts and assistance to African countries for implementation
of the African Growth and Opportunities Act. The bill would
further dedicate resources to reestablish the New York Customs
offices formerly at the World Trade Center, which were
destroyed in the terrorist attack of September 11th, and it
would provide more resources to the Northern Border. H.R. 3129
would also authorize full funding for the Customs Automated
Commercial Environment. H.R. 3129 would also authorize
appropriations for the Office of the United States Trade
Representative (USTR) and the International Trade Commission
(ITC).
H.R. 3129, as amended, would make corrections to the
overtime and premium pay for Customs inspectors and increase
the premium pay for inspectors working night-time hours. It
would also relax the manner in which the fiscal-year $30,000
cap for overtime pay is calculated by removing premium pay from
the cap. The bill would alter the hours in which night-time
premium pay would be available while using the savings to
increase night-time premium pay for inspectors actually working
at night.
H.R. 3129, as amended, would also give the U.S. Customs
Service authority to fight against terrorism and drug smugglers
through several new tools. Customs inspectors would be immune
from civil suits as a result of personal searches at the border
if they act in good faith. Customs Service would have the
authority to search outbound mail so long as privacy and Fourth
Amendment protections are observed. The Treasury Department
would also be required to build a system through the regulatory
process to handle the collection of advanced information for
inbound cargo, as well as inbound and outbound passengers, from
carriers for the purpose of targeting both terrorist activity
and smuggling.
H.R. 3129, as amended, would also authorize several studies
and reports on Customs' operations including a report on the
personnel practices of the Customs Service, on the accounting
and auditing procedures of Customs, on the monitoring and
enforcement of textile transshipment, on Customs' anticipated
improvements to stop delays in issuing prospective rulings, and
on determining the proper level of fees charged by Customs on
importers. The first two reports would be issued by Customs,
and the last three would be issued by the General Accounting
Office. The bill would also change Customs' audit process by
requiring that overpayments found during an audit be used as
offsets for any underpayments also found, permit emergency
adjustments to Customs offices and staff during emergencies,
and permanently raise the duty exemption on U.S. residents
returning from abroad from the current $400 to $800.

B. Background

1. Authorization of Appropriations

The Committee on Ways and Means has adopted a two-year
authorization process to provide Customs, USTR, and the ITC
with guidance as they plan their budgets, as well as guidance
from the Committee for the appropriations process. In preparing
H.R. 3129, the Committee considered the President's budget for
FY 2002. Although each agency submitted its FY 2002 budget
request, the Committee has relied upon anticipated cost
inflation from the Congressional Budget Office as a guide for
FY 2003. The statutory basis for the authorizations of
appropriations is as follows: for Customs, section 301(b) of
the Customs Procedural Reform and Simplification Act of 1978
(19 U.S.C. 2075(b)); for USTR, section 141(g)(1) of the Trade
Act of 1974 (19 U.S.C. 2171(g)(1)); and for the ITC, section
330(e)(2)(A) of the Tariff Act of 1930 (19 U.S.C.
1330(e)(2)(A)).

2. customs cyber-smuggling center

Customs enforces laws against international trafficking of
child pornography the laws at its Cyber-smuggling Center. This
legislation is needed for additional funding for Customs to
expand its efforts in preventing on-line child pornography.

3. Customs Automation

Customs' current automation system, the Automated
Commercial System (ACS), is an aging 17-year-old system which
has experienced several ``brownouts.'' In addition, under the
Customs Modernization Act (Mod Act) that was part of the North
American Free Trade Agreements Act (title VI), Customs is
required to provide increased electronic processing for
entries, informed compliance, and record keeping, but ACS does
not have the capacity to meet these modernization requirements.
Customs plans to replace ACS with the Automated Commercial
Environment (ACE).

4. Customs Personnel Issues

The Act of February 13, 1911, as amended, known as the
``1911 Act,'' created the original overtime pay system for
Customs inspectors. The Act authorized Customs to compensate
officers at a rate of two days of basic hourly pay for Sundays,
and a rate of two days of basic hourly pay plus the basic
hourly rate for holidays. Minimum compensation for nighttime
pay--5 p.m to 8 a.m.--was 4 to 12 hours of pay. Section 13811
of the Consolidated Omnibus Budget Reconciliation Act (COBRA)
of 1993, known as the Customs Officer Pay Reform Amendments
(COPRA), amended the 1911 Act with regard to the overtime and
premium pay system for Customs inspectors and canine
enforcement officers, effective January 1, 1994. Only
inspectors and canine officers are covered by the reforms, and
only when performing inspections. Clerical and support staff
are no longer eligible for double time and are covered--as are
most other Federal employees--under the Federal Employees Pay
Act (FEPA), at 1\1/2\ regular pay. The COBRA of 1993 also
amended overtime compensation paid to Customs officers as part
of the basic pay for the Civil Service Retirement System.
Compensation may not exceed 50 percent of the statutory maximum
in overtime pay for Customs officers (i.e., $15,000, that is,
50 percent of $30,000). Due to a number of arbitration rulings,
Customs has been required to pay both overtime and premium pay
to Customs officers for work not performed. Further, the
changes Congress made to the night pay system for Customs in
1993 have resulted in an unforeseencircumstance where Customs
officers can receive night pay for working at 12:00 noon in certain
instances. The Treasury Inspector General has called for a legislative
change to correct the night pay system.
Customs was subject to a partnership agreements with its
union that prevent it from permanently reassigning Customs
officers without the affected employees' consent. Customs'
ability to temporarily reassign officers without officers'
consent was also limited under the partnership agreement with
the union. Concerns were raised that the requirement that
Customs officers and inspectors agree to such rotations may
affect Customs drug interdiction efforts and the integrity of
the border workforce. In addition, there have been a number of
incidents in which implementation of certain inspection
procedures were delayed because of union objections to the
procedures. While these particular incidents have been
resolved, there have been questions raised as to whether drug
interdiction efforts were compromised.

C. Legislative History

The Subcommittee on Trade of the Committee on Ways and
Means held a public hearing on July 17, 2001, on Customs, USTR,
and the ITC budget authorizations for FY 2002 and 2003 as well
as other Customs issues, including compensation for Customs
officers, funding for Customs Automated Commercial Environment
(ACE) and the International Trade Data System (ITDS), and
labor/management issues. Acting Customs Commissioner Winwood,
Mr. Dennis Schindel of the Treasury Inspector General's office,
Ms. Laurie Ekstrand of the U.S. General Accounting Office
(GAO), and representatives of the various sectors of the trade
industry testified. Acting Commissioner Winwood stressed the
need for ACE and detailed steps Customs has taken to improve
ACE project management.
Ms. Ekstrand acknowledged that Customs has begun to
implement the recommendations made in the GAO report.
Representatives of the trade industry were unified in their
opinion that ACE is desperately needed and that Customs could
effectively manage a project the size of ACE. On Customs labor
issues, testimony was received from Mr. Dennis S. Schindel,
Deputy Inspector General for Audit, Office of the Inspector
General, and from Ms. Colleen Kelley, President of the National
Treasury Employees Union (NTEU). In his testimony, Mr. Schindel
stated that although the Customs Officers Pay Reform Act
(COPRA) was intended to reduce Customs overtime costs for
inspectional services, COPRA instead has resulted in an
increase in Customs premium pay costs. Ms. Ekstrand also
commented on a recent GAO study indicating that Customs took
far took far too long in issuing prospective rulings.\1\
---------------------------------------------------------------------------
\1\ Prospective rulings are issued by Customs at the request of
importers seeking guidance on various matters such as the
classification or the valuation of certain goods.
---------------------------------------------------------------------------
On October 16, 2001, Mr. Crane introduced H.R. 3129, and
the Committee held a markup of the bill on October 31, 2001.
Four amendments were offered at the markup: Mr. Stark on behalf
of Mr. Rangel offered an amendment to strike sections 123 and
124 of H.R. 3129, the effect of which would maintain the
current night differential pay rate schedule for Customs
officers. Mr. Stark's amendment was defeated by a recorded vote
of 13 ayes to 20 nays. Mr. Becerra offered and withdrew a non-
germane amendment to give Customs inspectors law enforcement
status. Mr. McDermott offered an amendment to strike section
141, the effect of which would be to deny the provision's civil
lawsuit immunity to Customs inspectors. Mr. McDermott's
amendment was defeated by voice vote. Chairman Thomas offered
an amendment in the nature of a substitute that passed the
Committee by 20 ayes to 14 nays. The Committee then ordered the
bill favorably reported, as amended, by voice vote. The
Committee then moved that the Chairman have the authority to
offer such motions as may be necessary to go to conference, and
the motion passed by roll call vote 2 present, 19 ayes, and 1
nay. Eight Members passed on this vote.

II. EXPLANATION OF THE BILL

Title I--United States Customs Service

Subtitle A--Drug Enforcement and Other Noncommercial and Commercial
Operations

Sec. 101. Authorization of appropriations for noncommercial operations,
commercial operations, and air and marine interdiction

Present law
The statutory basis for authorization of appropriations for
Customs is section 301(b)(1) of the Customs Procedural and
Simplification Act of 1978 (19 U.S.C. 2075(b)). That law, as
amended by section 8102 of the Omnibus Budget Reconciliation
Act of 1986 [P.L. 99-509], first outlined separate amounts for
non-commercial and commercial operations for the salaries and
expenses portion of the Customs authorization. Under 19 U.S.C.
2075, Congress has adopted a two-year authorization process to
provide Customs with guidance as it plans its budget, as well
as guidance from the Committee for the appropriation process.
The most recent authorization of appropriations for Customs
(under section 101 of the Customs and Trade Act of 1990 [P.L.
101-382]) provided $118,238,000 for salaries and expenses and
$143,047,000 for air and marine interdiction program for FY
1991, and $1,247,884,000 for salaries and expenses and
$150,199,000 for air and marine interdiction program in FY
1992.
Explanation of the provision
This provision authorizes $1,006,501,000 for FY 2002 and
$1,032,567,000 for FY 2003 for noncommercial operations of the
Customs Service. It also authorizes $1,378,725,000 for FY 2002
and $1,414,432,000 for FY 2003 for commercial operations of the
Customs Service. Of the amounts authorized for commercial
operations, $308,000,000 is authorized for the automated
commercial environment computer system for each fiscal year.
The provisions require that the Customs Service provide the
Committee on Ways and Means and the Committee on Finance of the
Senate with a report demonstrating that the computer system is
being built in a cost-effective manner. In addition, the
provisions authorizes $183,853,000 for FY 2002 and $188,615,000
for FY 2003 for air and marine interdiction operations of the
Customs Service. The provision requires submission of out-of-
year budget projections to the Ways and Means and
FinanceCommittees.
Reason for change
The Committee notes that this non-commercial versus
commercial split supplied by Customs does not provide
meaningful information. The information is not the result of
the collection of cost data on a continual basis. Rather
Customs apportions its budget through this artificial division
based upon an ad hoc survey performed years ago and that is no
longer available. The survey estimated that a certain
percentage of Customs' activities were commercial-related, and
the rest non-commercial, and based upon that conclusion,
Customs merely takes its overall budget and multiplies it by
that static percentage to arrive at its estimation from year to
year. Obviously, this methodology is woefully inadequate since
actual costs for various functions change from year to year.
The methodology, if it was ever accurate, is now at best a rule
of thumb. For this reason, the Committee has addressed this
problem in Sections 134 and 136 of the bill.
Regarding noncommercial spending, the Committee is
committed to giving Customs the resources needed to increase
the overall level of Customs officers and Special Agents
dedicated to countering terrorism, narcotics, and money
laundering activities. Accordingly, the authorization for non-
commercial operations for both fiscal years 2002 and 2003 is
substantially larger than the President's request, providing
Customs with the resources to stop terrorists and drugs from
entering this country while at the same time expediting the
entry of legitimate persons and cargo. The Committee notes that
during this time of emergency, a reevaluation of Customs needs
by the Administration, along with the needs of all anti-
terrorist agencies, has only just begun. The Committee looks
forward to the Administration's stock-taking and commits to
review any updated requests from the Administration.
Regarding commercial spending, the Committee recognizes
Customs' efforts to modernize its operations to meet both its
enforcement and trade facilitation missions. Customs plans to
spend over $1 billion over the next few years to modernize its
automation systems. The current Customs import processing
system, the Automated Commercial System (ACS), is 17 years old.
Over time, ACS became unable to handle the increased computing
requirements brought on by trade growth and started to
experience service failures called brownouts. These brownouts
caused import delays and increased manual processing. Recent
ACS funding has enabled Customs to fix critical links and grow
the system to keep up with the workload, thereby eliminating
brownouts for now. With continued funding, Customs expects ACS
to remain functional until the maximum capabilities of the
system and application software are reached. However, of
continued concern is the explosive growth in trade volume and
its impact on ACS. In the last decade, trade has grown 132
percent, and by 2004, Customs will be processing more than 30
million commercial entries a year. This is up from 12.3 million
in 1994--more than double the level of ten years earlier.
Many observers, including Customs, have said that ACS is
headed for a major system crash which will certainly have an
adverse impact on trade. They also believe that any serious
failure of ACS could have widespread economic effect on U.S.
businesses all along the supply chain including manufacturers,
suppliers, brokers, and retailers. Between August 1998, and
March 2001, ACS experienced a number of significant slow downs
in processing ``brownouts,'' which in turn adversely affected
the ability of the trade community to process entries quickly
and efficiently. Although Customs continues to make costly
investments to ACS to alleviate this problem on a short-term
basis, Customs and the trade community expect a recurrence of
these problems, including possible shutdowns of ACS.
Customs plans to replace ACS with the Automated Commercial
Environment (ACE) and has spent approximately $65 million on
ACE development to date. Some of the main differences between
ACS and ACE are that ACE reportedly will use a single
integrated system, modern standards, processes, techniques and
language, and will be compatible with commercial software. By
contrast, ACS does not have an integrated system, uses outdated
techniques and languages, and cannot use commercially
compatible software. The Committee agrees with Customs and the
trade community that ACE is needed to cope with the increased
growth of trade, and equally importantly, to meet the
legislative requirements for Customs automation modernization
mandated under the Customs Modernization Act. Therefore, in its
authorization for commercial operations for both FY 2002 and FY
2003, the Committee has included funding to provide the Customs
Service with the crucial resources it needs to continue
developing ACE. However, the Committee underscores the need to
ensure that Customs manage and develop ACE cost effectively,
while meeting the legislative automation modernization mandate
of the Mod Act.
The Miscellaneous Trade and Technical Corrections Act of
1999, P.L. 106-36, Section 2405 mandated that ``not later than
January 1, 2000, the Secretary shall provide for the inclusion
of commercial importation data from foreign-trade zones under
the National Customs Automation Program.'' The deadline has now
passed and the Committee is concerned that the Customs Service
has made no progress on this FTZ automation plan. In light of
the current development of the Automated Commercial Environment
(ACE) by the Customs Service, the Committee directs the Customs
Service to incorporate the Foreign-Trade Zone automation
process in the first phase of ACE.

Sec. 102. Antiterrorist and illicit narcotics detection equipment for
the United States-Mexico border, United States-Canada border,
and Florida and the Gulf Coast seaports

Present law
No applicable section.
Explanation of the provision
This provision would require that $90,244,000 of the FY
2002 appropriations be available until expended for acquisition
and other expenses associated with implementation and
deployment of terrorist and narcotics detection equipment along
the United States-Mexico border, the United States-Canada
border, and Florida and the Gulf seaports. The equipment would
include vehicle and inspection systems. The provision would
require that $9,000,000 ofthe FY 2003 appropriations be used
for maintenance of equipment described above. This section would also
provide the Commissioner of Customs with flexibility in using these
funds and would allow for the acquisition of new updated technology not
anticipated when this bill was drafted. Nothing in the language of the
bill is intended to prevent the Commissioner of Customs from dedicating
resources to specific ports not identified in the bill.
The equipment would include vehicle and container
inspection systems, mobile truck x-rays, upgrades to fixed-site
truck x-rays, pallet x-rays, busters, contraband detection
kits, ultrasonic container inspection units, automated
targeting systems, rapid tire deflator systems, portable
Treasury Enforcement Communications Systems terminals, remote
surveillance camera systems, weigh-in-motion sensors, vehicle
counters, spotter camera systems, inbound commercial truck
transponders, narcotics vapor and particle detectors, and
license plate reader automatic targeting software.
Reason for change
The Committee recognizes the needs of the Customs Service
to effectively interdict terrorists and drugs entering the
United States. The Committee is concerned that Customs
currently lacks sufficient equipment along the Canada, Mexico,
and Gulf borders to effectively carry out this mission while at
the same time ensuring that trade flows in a timely manner. The
list of equipment is based on the needs Customs has articulated
to the Committee both before and after the September 11th
terrorist attacks. The Committee expects that Customs will
continue to allocate resources to additional ports as it deems
appropriate.

Sec. 103. Compliance with performance plan requirements

Present law
No applicable section.
Explanation of the provision
This provision would require Customs to measure
specifically the effectiveness of the resources dedicated in
sections 102 and 103 as part of its annual performance plan.
Reason for change
The Committee believes Customs must be accountable to the
taxpayer in assessing and measuring the effectiveness of its
limited resources. This provision ensures that Customs
evaluates how it used these additional resources to achieve the
goals of Congress.

Subtitle B--Child Cyber-Smuggling Center of the Customs Service

Sec. 111. Authorization of appropriations for program to prevent child
pornography/child sexual exploitation

Present law
Customs enforcement responsibilities include enforcement of
U.S. laws to prevent border trafficking relating to child
pornography, intellectual property rights violations, money
laundering, and illegal arms. Funding for these activities has
been included in the Customs general account.
Explanation of provision
Section 111 of H.R. 3129, as amended, would authorize $10
million for Customs to carry out its program to combat on-line
child sex predators. Of that amount, $375,000 would be
dedicated to the National Center for Missing Children for the
operation of its child pornography cyber tipline.
Reason for change
With about 12 million children using the Internet
unsupervised by their parents, the Internet has provided
fertile ground for sexual predators to lure children into
exploitive and abusive relationships and to trade in child
pornography. This legislation would provide Customs with
resources for the tools, technology, and manpower it needs in
its efforts to prevent child pornography and sexual
exploitation. The Committee expects that these efforts will
include out-reach programs to educate parents, children, and
teachers. The Committee applauds Customs for establishing the
Cyber-smuggling Center and fully supports Customs in its
efforts to protect children from on-line predators.

Subtitle C--Personnel Provisions

Chapter 1--Overtime And Premium Pay of Officers of the Customs Service

Sec. 121. Correction relating to fiscal year cap

Present law
Section 5(c)(1) of the Act of February 13, 1911 (19 U.S.C.
267(c)(1)) states that the aggregate amount of a Customs
officer's overtime pay, including commuting compensation and
premium pay, is $30,000.\2\ A Customs officer who receives
overtime or premium pay (holidays and night work) for time
worked is prohibited from receiving compensation for that work
under any other provision of law. The Commissioner may grant
waivers to prevent excessive costs or to meet emergency
requirements of the Customs Service. Section 5(a)(1) of the Act
of February 13, 1911 (19 U.S.C. 267(a)(1)) outlines the general
overtime pay system for Customs officers. Basic overtime
compensation for work not regularly scheduled is provided as
follows: (a) Work in excess of 8 hours per day or 40 hours per
week at twice the basic hourly rate of basic pay; (b)
``Callback'' pay at twice the basic hourly rate. An officer
will receive at least two hours of callback pay for any call
back of two hours of work or less, if the work begins at least
one hour after the end of any previously scheduled work and
ends at least one hour before the beginning of regularly
scheduled work; and (c) Compensation for the commute, in
addition to callback time, at three times the basic hourly
rate; compensation for the commute is not payable if the work
does not begin within 16 hours of the Customs officer's last
regularly scheduled work assignment, or if the work begins
within two hours of the officer's next regularly scheduled work
assignment.
---------------------------------------------------------------------------
\2\ The fiscal year cap has been increased annually since October
1, 1997, from $25,000 to $30,000 (most recently by the FY 01 Treasury
Appropriations Act) over the objections of the Committee on Ways and
Means because it did not address overtime and premium pay reforms.
---------------------------------------------------------------------------
Explanation of provision
Section 121 of H.R. 3129, as amended, would amend section
5(c)(1) of the Act of February 13, 1911 (19 U.S.C. 267(c)(1))
to remove premium pay from the calculation of the $30,000
fiscal-year cap, thus increasing the amount of overtime pay a
Customs officer may receive, with no annual limit on the amount
of premium pay. The provision would also allow the Commissioner
the authority to waive the $30,000 fiscal-year cap to prevent
excessive costs or to meet emergencies, and to pay a Customs
officer for one work assignment that would result in the
overtime pay of that officer exceeding the $30,000 fiscal-year
cap. This authority would be granted only upon certification to
the Chairmen of the House Committee on Ways and Means, and the
Senate Committee on Finance that Customs has in operation a
system that provides accurate and reliable data on a daily
basis on overtime and premium pay being paid to Customs
officers.
Reason for change
Administration of the fiscal-year cap has posed a
considerable challenge for Customs. Eliminating premium pay
from the calculation of the fiscal-year cap will facilitate
Customs administration, as fewer Customs officers will approach
the level of the cap by working overtime alone. Moreover,
allowing each officer an unrestricted amount of premium pay and
applying the cap only to overtime pay will increase the
earnings of Customs inspectors. If an officer reaches the
fiscal-year cap, the provision would allow the Commissioner to
pay that officer for one additional work assignment that would
result in the overtime pay of the officer exceeding the cap.
Thereafter, no additional overtime would be assigned to that
officer, except to meet emergency requirements of the Customs
Service. Under the National Inspectional Assignment Policy
(NIAP) and contracts negotiated with the National Treasury
Employees Union (NTEU), Customs has agreed to assign overtime
to Customs officers based on daily tracking of each officer's
overtime- and premium-pay earnings. Section 121 also requires
that authority to exceed the cap by one assignment will be
granted to the Commissioner only upon certification to the
Chairmen of the House Committee on Ways and Means and the
Senate Committee on Finance that Customs has in operation a
system that provides accurate and reliable data on a daily
basis on overtime and premium pay that is being paid to each
Customs officer.
Customs' officials estimate that based upon pre-emergency
staffing requirements, there have been several hundred
inspectors who reached the cap and who would thus benefit from
an increase in the cap. Based upon post-emergency staffing
requirements from the heightened alert, that estimate is now
conservatively over 1,000 inspectors who would benefit from
raising the cap. Taking premium pay out of the cap would allow
some inspectors to earn as much as $5,000 more than currently
allowed.

Sec. 122. Correction relating to overtime pay

Present law
On October 30, 1997, an arbitration ruling required the
Customs Service to pay overtime to a Customs officer for work
not performed if that officer was not permitted to work that
time due to an administrative error. An earlier arbitration
ruling required Customs to pay overtime to a Customs officer
for work not performed if Customs had prevented that officer
from working right up to the fiscal year salary cap, a practice
Customs has in place to prevent an Anti-Deficiency Act
violation.
Explanation of provision
Section 122 of H.R. 1833, as amended, would prevent Customs
from paying overtime pay to Customs officers for work not
actually performed. However, this provision would not apply to
payment of an award or settlement under section 5596 of title
5, United States Code, section 6(d) of the Fair Labor Standards
Act, or title VII of the Civil Rights Act of 1964.
Reason for change
The Committee is concerned that three arbitral decisions
require Customs to pay overtime for work not performed.
Specifically, as a result of a decision by a labor arbitrator
in August 1982, Customs is required to pay overtime plus
interest for hours not actually worked to officers denied
overtime assignments because they have reached the level set by
the port directors. The amount paid by Customs pursuant to the
arbitral decision equals the difference between the fiscal-year
cap and the level which the officer had reached at the time the
port director stopped assigning additional overtime to that
officer. As a result of a decision by a labor arbitrator in
November 1993, Customs is required to pay for overtime not
actually worked to officers whose overtime is inappropriately
assigned to part-time employees. In yet another decision by a
labor arbitrator in October 1997, Customs is now required to
pay overtime to Customs officers for work not performed when
the officer was not assigned an overtime assignment due to an
inadvertent administrative error.
The current practice of paying overtime for work not
performed replaces the practice of providing the next
comparable overtime assignment to the officer who was
inadvertently skipped over. In addition, in testimony before
the Subcommittee on Trade in May 1998, the General Accounting
Office (GAO) stated: ``Although we believed that inspectors
should be paid extra for working overtime, we recommend that
(1) the 1911 Act be amended so that inspector overtime would be
more directly linked to actual hours worked, and (2) Customs
management focus on achieving a more efficient use of
overtime.'' U.S. Customs Service: Oversight Issues, GAO/T GGD
97 107 (May 15, 1997). The provision would clarify
Congressional intent with regard toovertime for Customs
officers by preventing Customs from paying overtime to officers for
hours not actually worked. Customs would achieve savings by prohibiting
these payments which it has been required to make since the 1982
arbitral decision.
It is the view of the Committee that Customs would achieve
considerable savings in prohibiting these payments, and these
resources would be better utilized by Customs in other areas.
More importantly, the change in law will correct an inequitable
and unintended consequence of the present law as interpreted by
arbitration panels. The Committee does not expect that this
requirement will have a significant impact on Customs'
management of overtime or on Customs officers' ability to earn
overtime pay.
Customs has taken steps to alleviate this problem by
recently implementing the Customs Overtime and Scheduling
System (COSS), which currently tracks and monitors all
scheduling, assignment of regular hours, overtime, and premium
hours for Customs officers. Under this tracking system, Customs
will be better able to monitor overtime and premium hours to
prevent situations that gave rise to officers receiving
overtime and premium pay for no work. However, the Committee
believes that this legislation is necessary to clarify that the
appropriate policy is to provide an additional assignment
instead of overtime. Finally, this reform is not intended to
prevent awards or settlements under the provisions of laws
cited in this section.

Sec. 123. Correction relating to premium pay

Present law
Section 123(a). An arbitration ruling requires Customs to
pay officers for regularly scheduled premium pay hours even if
the officer subsequently takes sick or annual leave and does
not actually work those hours. The Omnibus Consolidated and
Emergency Supplemental Appropriations for FY 1999 (P.L. 105-
277), permanently restricts Customs from paying premium pay on
Sundays to an employee if the employee has not actually
performed work on a Sunday.
Sec. 123(b). Section 5(b)(1) of the Act of February 13,
1911 (19 U.S.C. 267(b)(1)) provides that if an officer works:
(1) the majority of his or her hours between 3 p.m. and
midnight, compensation equals the basic hourly rate plus 15
percent of the basic hourly rate for the entire eight-hour
shift; (2) the majority of his or her hours between 11 p.m. and
8 a.m., compensation equals the basic hourly rate plus 20
percent for the entire eight hour shift; and (3) if the
officer's regularly scheduled work assignment falls between
7:30 p.m. and 3:30 a.m., compensation equals the basic hourly
rate plus 15 percent for the period from 7:30 p.m. to 11:30
p.m., and the basic hourly rate plus 20 percent for the period
from 11:30 p.m. to 3:30 a.m.
For example, if a Customs officer is scheduled to work a
shift that starts at 12:00 noon and ends at 8 p.m., five of the
eight hours of that shift, or the majority of hours, occur
during the 3 p.m. to 11 p.m. night premium pay hours. Thus, the
Customs officer is paid night pay (an additional 15 percent)
for all eight hours of the shift that starts at noon.
Explanation of the provision
Sec. 123(a). This provision would prohibit Customs from
paying premium holiday pay to an employee if the employee has
not actually performed work during the time corresponding to
such premium pay by amending section 5(b)(4) of the Act of
February 13, 1911 (19 U.S.C. 267(b)(4)). However, this
provision would not apply to payment of an award or settlement
under section 5596 of title 5, United States Code, section 6(d)
of the Fair Labor Standards Act, or title VII of the Civil
rights Act of 1964. As with the restriction on payment of
overtime pay outlined in section 122, this provision would
clarify Congressional intent with regard to premium pay for
Customs officers by preventing Customs from paying premium pay
to officers for hours not actually worked.
Sec. 123(b). This provision would amend section 5(b)(1) of
the Act of February 13, 1911 (19 U.S.C. 267(b)(1)) to provide
that a Customs officer is paid premium night shift (``shift
differential'') pay only for shift differential hours worked.
This provision also changes the actual hours eligible for night
time pay to between 5 p.m. and 6 a.m., except that for a
regularly scheduled shift between 4 p.m. and midnight or
midnight and 8 a.m., the entire shift would be eligible for
night pay shift differential.
Under this legislation, if any hour of an officer's
regularly scheduled work hours occur between 5 p.m. and
midnight, compensation would equal the basic hourly rate plus
at least 18 percent for those hours only. If any work hours
occur between midnight and 6 a.m., compensation would equal the
basic hourly rate plus 25 percent for those hours only. The
bill also would allow for a Customs officer regularly scheduled
to work the shift from 4 p.m. and midnight to be paid at a
premium rate of at least 18 percent over his or her base salary
for the entire shift. The bill also would allow for a Customs
officer regularly scheduled to work the shift from midnight to
8 a.m. to be paid at a premium rate of 25 percent over his or
her base salary for the entire shift. For example, a Customs
officer working from noon to 8 p.m. would earn night
differential pay only between the hours of 5 p.m. and 8 p.m,
but would receive at least an 18 percent differential instead
of the current 15 percent.
Reason for change
Section 123(a). The Committee is greatly concerned that an
arbitral decision requires Customs to pay premium pay for hours
not actually worked. Specifically, due to the decision by a
labor arbitrator in September 1996, Customs is required to pay
premium pay to officers for regularly-scheduled premium pay
hours even if the officer subsequently fails to work those
hours due to annual leave, sick leave, or National Guard duty
leave. Similar to the reform on payment of overtime pay
outlined in section 122, this provision would clarify
Congressional intent with regard to premium pay for Customs
officers by preventing Customs from paying premium pay to
officers for hours not actually worked. Finally, this reform is
not intended to prevent awards or settlements under the
provisions of laws cited in this section.
Section 123(b). The Customs Officer Pay Reform Amendments,
which was part of the Omnibus Budget Reconciliation Act of 1993
(P.L. 103-66), greatly increased the number of available hours
in which a Customs Officer can earn premium pay for night work.
COPRA also increased the 10 percent night differential
compensation to 15 percent and 20 percent, dependingon the time
of day that the assignment is worked. Among Federal employees, only
Customs officers are compensated at a premium pay rate of 15 percent or
20 percent of basic hourly pay for night work. In fact, COPRA allows
Customs to pay night differential premium payments for 23 hours of the
day (12 p.m. to 11 a.m.), rather than 12 hours of the day (6 p.m. to 6
a.m.) as was previously the case under FEPA. Premium pay for night work
by most other Federal employees is provided at a rate of 10 percent for
the hours from 6 p.m. to 6 a.m. and is available only for those hours
worked during that period, not the entire shift.
At the Subcommittee's legislative hearing on April 13,
1999, Mr. Schindel testified that ``premium pay expenses for
Customs, specifically the work differential, substantially
increased under COPRA.'' In fact night shift differential
increased from $51,000 in FY 1993 to $11.9 million in FY 1998.
Mr. Schindel reached the same conclusion at the Subcommittee's
legislative hearing on July 17, 2001. A major reason for this
dramatic increase in premium pay for shift differential is that
COPRA increased the number of available hours where a Customs
officer could earn night differential. The Congressional intent
of the COPRA was to ensure that Customs officers' schedules met
customer demand. A Treasury Inspector General report concluded
that Customs schedules do correspond to its workload and to its
customers' needs. Customs Officer Pay Reform Amendments
(COPRA), OIG 96 094 (September 13, 1996). However, the report
concluded that COPRA had caused a significant increase in night
differential spending, amounting to at least $6 million per
year.
The report recommended: The Assistant Secretary
(Enforcement) should direct Customs to seek legislation that
would lessen the number of hours available for Customs officers
to earn night differential and reduce the night work
differentials to a 10 percent premium on base pay. The change
to the COPRA should create a night differential payment package
that would more accurately reimburse Customs officers for hours
actually worked at night, as was done previously under FEPA.
The provision would clarify Congressional intent that night
premiums be awarded only for night work, correcting the anomaly
that an officer can receive a night premium for working at
noon, namely the limitation that night-time pay be for actual
night-time hours worked.
Rather than adopt the report's recommendations in toto, the
Committee has chosen to address the inherent inequity of the
current system which provides night-time premium pay to
employees working during daytime hours. The bill would
redistribute the savings generated by scaling back the hours
that are eligible for night-time premium pay so as to make the
legislation revenue neutral and overall inspector pay neutral.
According to calculations from Customs, the savings from
Section 123 will be sufficient to increase the night-time
premium differential from 15% to at least 18% (for hours worked
before midnight) and from 20% to 25% (for hours worked after
midnight).
Customs officials testified at the markup on October 31,
2001, that there would be no impact on operations as a result
of these changes and that all shifts would still be staffed.
Also, given the current method of assigning shifts by having
inspectors bid on them, inspectors will have the opportunity to
seek different shifts depending upon their personal
preferences. Thus, an inspector who has been receiving night-
time premium pay for working a noon to 8:00 p.m. shift could
seek a later shift in order to continue to receive night time
premium pay. At the same time, inspectors working the most
popular night shift (4:00 p.m. to midnight), which accounts for
48 percent of night shifts, would receive a raise from a
current 15% premium for each hour to at least 18%. Committee
Members believe this is a more equitable method for paying
night-time premium pay than the existing system.

Sec. 124. Use of savings from payment of premium pay

Present law
No applicable section.
Explanation of the provision
This provision would require the Secretary of the Treasury
to calculate any savings created as a result of sections 122
and 123. Customs would be required to use the savings to
provide additional overtime for enforcement purposes. The
change in Section 123 to increase the premium pay for customs
officers for hours actually worked is intended to offset the
decrease in hours that the premium pay is available.
Reason for change
The Committee wants to ensure that savings from sections
122 and 123 from this bill are used for paying higher premium
pay to inspectors who actually work night-time shifts.

Sec. 125. Effective date

Present law
No applicable section.
Explanation of the provision
The provision states that the section will be effective 15
days after enactment.
Reason for change
The Committee anticipates that the provision will take
effect in the payment cycle after enactment.

Chapter 2--Miscellaneous Provisions

Sec. 131. Additional Customs Service officers for U.S.-Canada border

Present law
No applicable section.
Explanation of the provision
This provision earmarks $25 million and 285 new staff hires
for Customs to use at the U.S.-Canada border.
Reason for change
Additional earmark: Since the terrorist attack on the U.S.
on September 11th, Customs has continued to work under the
highest level of alert. Customs has apprehended terrorists in
the past as they attempted to go through the Northern Border
with weaponry. Early reports are that some of the September
11th terrorists also came through the Northern Border.
Moreover, many U.S. industries rely upon immediate delivery of
products from Canada in order to operate. Given also that
Canada remains the largest trading partner for the United
States, it is clear that new resources are needed to facilitate
trade while protecting the border. The Committee notes that the
Administration provided the Customs Service with no new hiring
authority for staff from funds made available in the emergency
supplemental appropriations bill in 2001. Nevertheless, Customs
staff is continuing to work at the highest alert status during
the current emergency, and Customs staff must work markedly
increased overtime hours. New staff is needed particularly at
the Northern Border to insure that border security is
maintained while facilitating trade.
``Reverse Customs'' procedures: The Committee wishes to
address the inspection and control requirements of the border
crossings along the Northern Border. The Committee encourages
the Administration, and the Customs Service in particular, to
explore an agreement with Canadian officials to increase
cooperation at border crossings and to station customs
officials from each government on the opposite side of the
border for the purpose of inspecting and clearing vehicles
before they cross the border--the so-called ``reverse customs''
process.
The Committee notes that Michigan/Canada border crossings
at the Ambassador Bridge and the Detroit Windsor Tunnel would
be a good location for a pilot project once an agreement
between the United States and Canada is reached. According to
data derived from the Bridge and Tunnel Operators Association,
Michigan led the nation in U.S.-Canada border crossings with
over 2.1 million trucks and 11.1 million cars crossing the
border, with Ambassador Bridge and the Detroit-Windsor Tunnel
showing the highest car, truck, and other vehicular traffic
volumes through August 2001. It is estimated that over $1
billion in trade crosses the Canada-U.S. border every day, with
nearly half crossing either the Ambassador or Blue Water
Bridges in Michigan.
Such a pilot project could address increased security and
safety concerns in the aftermath of the terrorist attacks in
the United States on September 11, 2001, and ensure that
potentially dangerous vehicles would be stopped prior to
embarking upon the Ambassador Bridge and Detroit Windsor Tunnel
structures. The Committee expects that U.S. Customs, in
consulting and coordinating with Canadian Customs, would give
great weight and sensitivity to sovereignty issues, laws, and
customs, while at the same time achieving a workable and
effective mechanism allowing Customs personnel to carry out
their duties.
In addition, the Committee recommends continuation of the
use of automated, computerized inspection and commercial
transaction systems by Customs at border crossings and
particularly at the Michigan ports of entry, including but not
limited to ACE, NCAP, NEXUS, and Port Pass. The Committee
believes that these systems can and should be fully utilized
even during this period of heightened security on all U.S.
bridges, tunnels, and other border crossings in the aftermath
of the September 11th terrorist attack on the United States.
However, in order to ensure that the need for enhanced security
at the ports of entry is maintained, the Committee has
authorized additional funding for new technologies and systems
to improve the ability of U.S. Customs to interdict dangerous
vehicles and terrorist threats to our bridges, ports, and
personnel at ports of entry.
The Commissioner of Customs should report to the Committee
regarding its implementation of the technology and pilot
program initiatives set forth in this report, with particular
emphasis on its efforts to coordinate the pilot program with
Canadian Customs.

Sec. 132. Study and report relating to personnel practices of the
Customs Service

Present law
No applicable section.
Explanation of provision
Section 132 of H.R. 3129, as amended, requires Customs to
conduct a study of current personnel practices including:
performance standards; the effect and impact of the collective
bargaining process on Customs drug interdiction efforts; and a
comparison of duty rotations policies of Customs and other
federal agencies employing similarly situated personnel.
Reason for change
Under the collective bargaining agreement between Customs
and the National Treasury Employees' Union (NTEU), Customs
cannot rotate a Customs officer permanently or for temporary
duty unless the officer agrees to the change. In addition, the
agreement specifies that the union may bring to grievance any
issue relating to the impact and management of any management
changes, including a management change relating to drug
enforcement, and any issues not included in the collective
bargaining agreement.
The Committee has been concerned that the union is able to
effectively thwart Customs drug interdiction efforts through
bargaining or the unwillingness to bargain. There have been a
number of examples in which the NTEU was able to delay
negotiations on work conditions, to the detriment of the
ability to interdict contraband, including narcotics. These
examples included: (1) negotiations between the National
Treasury Employees Union (NTEU) and Customs since early 1995 in
El Paso, Texas, over work conditions at the three bridges
between Mexico and El Paso relating to the use of a very
successful drug interdiction approach called pre-primary roving
for Canine Enforcement Officers and Inspectors; (2)
implementing certain shift work in Miami;and (3) the percent of
officers regularly scheduled to work weekend shifts at the John F.
Kennedy airport (JFK).
Shortly after the Subcommittee and Committee discussed
these issues at the 1998 mark-ups, Customs and the Union
settled their differences on the weekend shifts issues at JFK
and El Paso. In addition, the Impasse Panel issued a decision
on the shift issue in Miami. As a result of these developments,
the Committee believes that many of the issues that have
adversely impacted Customs drug interdiction efforts have been
favorably resolved. However, the Committee believes that a
study of the effect and impact of the collective bargaining
process on Customs drug interdiction efforts is necessary to
keep a watchful eye on this issue. In addition, the Committee
is concerned that Customs' lack of authority in the past to
rotate and temporarily assign officers may have adversely
impacted its drug interdiction efforts. Therefore, the
Committee is requiring that Customs conduct a comparison study
of rotation policies with similarly situated federal personnel
which would enable both the Committee and Customs to assess
Customs rotation practices.

Sec. 133. Study and report relating to accounting and auditing
procedures of the Customs Service

Present law
No applicable section.
Explanation of the provision
This provision would require Customs to conduct a study to
ensure that appropriate training is being provided to personnel
who are responsible for financial auditing of importers.
Customs would specifically report on how its audit personnel
protect the privacy and trade secrets of importers.
Reason for change
The Committee has received many complaints from U.S.
importers about the specialized skill and knowledge base of
auditors from the Customs Service. As with all government
enforcement, the skill of enforcement officials is important in
order to ensure that violations of law are not overlooked but
also to ensure that legitimate acts are not mistakenly labeled
illegal. Especially troubling are complaints that proprietary
business information is not being given the proper level of
confidentiality from disclosure. The Committee does not have
sufficient data to confirm or deny these complaints
definitively and has rather chosen to direct Customs to study
and report on the procedures in place to ensure that auditors
are properly trained.

Sec. 134. Establishment and implementation of cost accounting system;
reports

Present law
No applicable section.
Explanation of the provision
Section 134 would mandate the imposition of a cost
accounting system in order for Customs to effectively explain
its expenditures. Such a system would provide compliance with
the core financial system requirements of the Joint Financial
Management Improvement Program (JFMIP), which is a joint and
cooperative undertaking of the U.S. Department of the Treasury,
the General Accounting Office, the Office of Management and
Budget, and the Office of Personnel Management working in
cooperation with each other and other agencies to improve
financial management practices in government. That Program has
statutory authorization in the Budget and Accounting Procedures
Act of 1950 (31 U.S.C. 65).
Reason for change
The Customs Service is currently unable to answer
fundamental questions about how it spends money. This fact was
mentioned above in the discussion of present law for Section
101. For example, Customs states that it spends a certain
amount of money on commercial operations. The figure is not
based upon the continual adding of various commercial costs
from all operations within Customs, such as the number of
people who actually processed entries of merchandise at
specific ports during a set period. Instead, the figure is
based upon Customs officials' belief that a set percentage of
its work is always related to commercial activities. That
static percentage is based upon a no longer available, ad hoc
survey conducted by Customs several years ago. A modern cost
accounting system would allow Customs to accurately identify
the amount of money spent at specific locations, for specific
functions such as textile transshipment monitoring, searching
for contraband, or processing entries of merchandise.

Sec. 135. Study and report relating to timeliness of prospective
rulings

Present law
No applicable section.
Explanation of the provision
This provision would require the Comptroller General to
prepare a report to determine whether Customs has improved its
timeliness in providing prospective rulings.
Reason for change
In light of oversight reports from the General Accounting
Office and complaints from the business community, the General
Accounting Office is directed to monitor and provide an update
to its recent report in one year on the progress of Customs in
substantially decreasing the time it takes to issue prospective
rulings. The Committee had originally proposed a strict
deadline of 90-days for Customs to issue prospective rulings.
Because of the emergency currently facingCustoms, the draw upon
its resources, and assurance from officials from the new Administration
to act on GAO's comments, a mandatory deadline was dropped but will be
revisited depending upon the results of GAO's review.

Sec. 136. Study and report relating to Customs user fees

Present law
No applicable section.
Explanation of the provision
This provision would require the Comptroller General to
prepare a confidential report to determine whether current user
fees are appropriately set at a level commensurate with the
service provided for the fee. The Comptroller General is
authorized to recommend the appropriate level for customs user
fees.
Reason for change
The Committee has already noted in the discussion at
sections 101 and 134 the problem of a lack of reliable cost
data from Customs. One consequence of having inadequate data is
that importer user fees may not reflect the level of services
provided for by the fee. Moreover, Customs officials admit that
there is no cost accounting system in place for them to
accurately track costs of providing services. For this reason,
this section should be read in conjunction with Section 134
requiring Customs to implement a cost accounting system.
If the government buys a good or service at a price that
purports to be based upon the cost of that good or service,
then the government would expect a seller to provide adequate
documentation to support that cost basis. The government
therefore should provide similar justification of its costs
especially when it requires importers to pay fees ostensibly to
cover services rendered. The inability of government to justify
the costs of its services to importers, while simultaneously
urging increases in fees, has reasonably led to concerns among
importers that the fee levels are no longer appropriate, may be
inflated, and could be raised without adequate justification.
So long as reliable data is not available, it will be
difficult, if not impossible, to justify the current level of
fees, much less extensions or changes.

Subtitle D--Tools for Fighting Terrorism

Sec. 141. Immunity for Customs officers that act in good faith

Present law
Currently, Customs officers are entitled to qualified
immunity in civil suits brought by persons, who were searched
upon arrival in the United States. Qualified immunity protects
officers from liability if they can establish that their
actions did not violate any clearly established constitutional
or statutory rights.
Explanation of the provision
This section would protect Customs officers by providing
them immunity from lawsuits stemming from personal searches of
people entering the country so long as the officers conduct the
searches in good faith. The ``good faith'' standard has been
used in other contexts similar to this, as in 19 U.S.C.
Sec. 507, for searches conducted by other individuals at the
direction of Customs officers. Under this amendment, if Customs
certifies in a lawsuit that the officer followed policy in
conducting the allegedly improper search, the court would then
make a finding of good faith immunity and would dismiss the
suit against the officer.
Reason for change
Customs officers have the important responsibility to
search persons arriving in the United States to prevent the
introduction of contraband, including dangerous items. Often, a
personal search is the only way to determine if a person is
concealing contraband on or within their body. There has been a
large increase in the number of private lawsuits against
Customs officers by persons that have undergone personal
searches. Despite the large increase in suits against Customs
officers, almost every one of them are ultimately resolved in
favor of the officers (i.e., there is a finding of qualified
immunity).
Customs officers have been subject to an increasing number
of lawsuits by those searched at the border. In all but fewer
than five of these dozens of cases in the last several years,
the courts have found in the favor of the Customs officers.
Nonetheless, each case tends to hinge on a lengthy, fact-
specific trial, potentially distracting the officers from their
duties and creating a chilling effect among other officers.
Though Customs officers are winning these cases, they must
undergo discovery, depositions, and trial, even when those
searches have uncovered drugs and other smuggled items on or
inside the plaintiff. These officers may face financial burdens
as well, as personal property such as cars and real estate may
be covered by liens while the litigation is pending. Customs'
experience is that it takes years to get decisions on qualified
immunity for its officers, even in cases where the officer
followed personal search policy and did nothing wrong.
As Customs searches greater numbers of passengers to detect
terrorists, there is a potential for Customs officers to become
subject to an increasing number of lawsuits alleging ethnic or
religious profiling. While officers are not permitted to
discriminate on the basis of unconstitutional criteria, this
amendment provides an avenue for frivolous and questionable
suits to be resolved at an early stage. Accordingly, the
amendment would have the effect of streamlining the existing
process for judicial determinations on whether Customs officers
are entitled to immunity from lawsuits.
The amendment introduces a single standard--good faith--for
courts to rely on to speedily dispose of unmeritorious lawsuits
at an early stage. The Committee believes that the best (though
not exclusive) measure of whether a Customs officer conducts a
personal search in good faith is whether the officer follows
established Customs policy. It is important to note thateven
with this amendment, truly aggrieved plaintiffs would continue to have
appropriate remedies to obtain redress for any improper searches as
they could obtain money damages under the Federal Tort Claims Act
(FTCA) against the government for tortious searches; obtain injunctive
relief for unconstitutional policies; or if the officer acted in bad
faith and in violation of clearly established constitutional or
statutory rights, recover against the officer personally (because the
officer would not be immune from personal liability).

Sec. 142. Emergency adjustments to offices, ports of entry, or staffing
of the Customs Service

Present law
Present law places numerous restrictions on and, in some
instances, precludes the Secretary of the Treasury or Customs
from making any adjustments to ports and staff. 19 U.S.C. 1318
requires a Presidential proclamation of an emergency and
authorization to the Secretary of the Treasury only to extend
the time for performance of legally required acts during an
emergency. No other emergency powers statute for Customs
exists.
Explanation of the provision
This provision would permit the Secretary of the Treasury,
if the President declares a national emergency or if necessary
to address specific threats to human life or national
interests, to eliminate, consolidate, or relocate Customs ports
and offices and to alter staffing levels, services rendered and
hours of operations at those locations. In addition, the
amendment would permit the Commissioner of Customs, when
necessary to address threats to human life or national
interests, to close temporarily any Customs office or port or
take any other lesser action necessary to respond to the
specific threat. The Secretary or the Commissioner would be
required to notify Congress of any action taken under this
proposal within 72 hours.
Reason for change
This provision would loosen restrictions on Customs'
ability to alter the location, hours of operation and staffing
at ports in response to terrorist threats. Such restrictions
unduly limit Customs' ability to move personnel to locations
where they can most effectively be used to reduce or respond to
terrorist threats. They also force Customs to maintain offices
and personnel in locations that have very little international
traffic and where they cannot be used effectively to address
threats of terrorism. The terrorist attack on the United States
on September 11th resulted in the need for changes in border
staffing and security. The Administration requested these
changes to law in order to give officials flexibility in
providing for border security during the current and future
emergencies.

Sec. 143. Mandatory advanced electronic information for cargo and
passengers

Present law
Currently, commercial carriers bringing passengers or cargo
into or out of the country have no obligation to provide
Customs with such information in advance.
Explanation of the provision
This provision would require every air, land, or water-
based commercial carrier to file an electronic manifest
describing all passengers with Customs before entering or
leaving the country. There is a similar requirement for cargo
entering the country. Specific information required in the
advanced manifest system would be developed by Treasury in
regulations.
Reason for change
Advanced electronic manifests will significantly enhance
Customs' ability to identify high-risk passengers and cargo and
will ensure that suspected terrorists or those on law
enforcement or terrorist watch lists are identified before
entering or leaving the United States. The passenger
identification requirement will provide Customs with, among
other things, the name and passport number of every passenger
in advance of a carrier's attempt to enter or leave the United
States. Similarly, the cargo manifest requirement provides
Customs with a wide range of important information about all
cargo, including those involved in its shipment. This proposal
builds upon a successful voluntary program that Customs has
already with the airlines. While all commercial carriers must
provide this information to Customs at some point, this
proposal would require it prior to entry or departure and
electronically for passenger carriers. The amendment makes a
similar requirement for cargo entering the country.
The Committee received many questions from carriers as to
its concerns that Customs does not currently have the
infrastructure or procedures to implement in all cases advanced
electronic manifesting. The Committee is aware of the current
state of the system and expects the Secretary of the Treasury
to construct both infrastructure and procedures to implement
these requirements by means of regulations. The current Customs
computer system would be unable to handle the increased
electronic information contemplated by these new provisions. In
this regard, the full funding of the ACE computer system is all
the more important to allow Treasury and Customs to proceed
quickly.
The Committee intends the Treasury Department to promulgate
regulations implementing the advance reporting requirements of
this section after consulting with various component members of
the transportation industry. This should occur in conjunction
with the design and development of the ACE computer system,
which is intended to accommodate the new advanced reporting
information. Further, the Committee expects the Treasury
Department to engage in a regulation making process that will
take into account, and accommodate to the extent reasonable,
standard commercial practices. Such regulations should
appropriately reflect the distinct differences among trucking,
rail, vessel, air and other transportation entities while
advancing the government's need to obtain the manifest
information in a timely manner.

Sec. 144. Border search authority for certain contraband in outbound
mail

Present law
Although Customs currently searches all inbound mail, and
although it searches outboundmail sent via private carriers,
outbound mail carried by the Postal Service is not subject to search.
Explanation of the provision
This proposal would enable Customs officers to search
outbound U.S. mail for unreported monetary instruments, weapons
of mass destruction, firearms, and other contraband used by
terrorists. Because Customs does not inspect outbound mail
carried by the Postal Service, millions of packages mailed out
of the United States, some weighing many pounds and capable of
containing dangerous items such as high explosives, illegally
obtained cash, or biological agents, are free from any Customs
inspection.
This new section would provide Customs with the same
authority that it has to search incoming mail. Specifically,
the bill would authorize searches of outbound non-letter class
packages. Letter-class outbound mail could be searched upon
reasonable suspicion that it contained firearms, monetary
instruments (checks or cash), or several other categories of
dangerous materials and other merchandise subject to the laws
enforced by Customs. However, reading of mail would not be
authorized absent Customs officers obtaining a search warrant
or consent.
Reason for change
Often the smuggling of weapons, drugs, or other contraband
is only half of an illegal operation. The other half consists
of the outbound smuggling of unreported money that helps
finance the illegal activity. The current government
investigation into the activities of the terrorists responsible
for the attack of September 11th is heavily reliant upon the
tracing of money that helped finance the attack. Long before
September 11th, government investigators have known that drug
money frequently leaves the country and helps foreign drug
sellers continue their operations. Tracing the money helps
bring illegal operators to justice. It is therefore critical
that Customs have the authority to search outbound mail.
The Committee notes that Customs currently searches
outbound envelopes and cargo shipped via private express
companies, but there have been doubts by some that Customs has
the authority to search outbound mail sent via the U.S. Postal
Service. It is the intention of the Committee to make an
unambiguous declaration and clarification of the present law to
the effect that the U.S. Customs Service has and must have
access to search all outbound mail. Due regard for privacy
rights of individuals is addressed through the requirement of
probable cause and a search warrant or consent in the event
that letter class mail needs to be read.

Sec. 145. Authorization of appropriations for reestablishment of
Customs operations in New York City

Present law
No applicable section.
Explanation of the provision
On September 11, 2001, destruction of the World Trade
Center complex destroyed substantial operations of the U.S.
Customs Service. This provision authorizes funds to reestablish
those operations.
Reason for change
Textile transshipment operations are specifically mentioned
as needing reestablishment given the importance of that work to
the import sensitive textile and apparel manufacturers in the
United States.

Subtitle E--Textile Transshipment Provisions

Sec. 151. GAO Audit of textile transshipment monitoring by Customs
Service

Present law
No applicable section.
Explanation of the provision
This provision would direct the Comptroller General to
conduct an audit of the systems at the Customs Service to
monitor and enforce textile transshipment. The Comptroller
General would report on recommendations for improvements.
Reason for change
The Committee continues to hear complaints about textile
goods entering the country that have been transshipped, meaning
that an importer has entered the goods with an incorrect
declaration for the purpose of obtaining entry or a lower duty.
The Committee is aware that Customs has ongoing operations to
monitor and enforce textile transshipment, and many allegations
may already be under investigation. A report from the
Comptroller will assist the Committee in evaluating Customs'
enforcement.

Sec. 152. Authorization of appropriations for textile transshipment
enforcement operations

Present law
No applicable section.
Explanation of the provision
This provision would authorize $9,500,000 for FY 2002 to
the Customs Service for the purpose of enhancing its textile
transshipment enforcement operations. This amount would be in
addition to Customs' base authorization and the authorization
to reestablish the destroyed textile monitoring and enforcement
operations at the World Trade Center.
Reason for change
The Committee wishes to increase the level of funding for
monitoring and enforcement of textile transshipment to ensure
every effort is made to control imports according to present
law.

Sec. 153. Implementation of the African Growth and Opportunity Act

Present law
No applicable section.
Explanation of the provision
The provision would earmark approximately $1.3 million
within Customs' budget for selected activities related to
providing technical assistance to help sub-Saharan African
countries develop and implement effective visa and anti-
transshipment systems as required by the African Growth and
Opportunity Act (title I of Public Law 106-200).
Reason for change
Congress intended for sub-Saharan countries to receive
benefits in the African Growth and Opportunity Act which passed
in the 106th Congress. Due to the lack of experience and
infrastructure in many African countries, however, these
countries are experiencing difficulty in taking advantage of
the Act and its benefits. The Committee, therefore, wishes
Customs to provide technical assistance to these countries.

Title II--Office of the United States Trade Representative

Sec. 201. Authorization of appropriations

Present law
The statutory authority for budget authorization for the
Office of the United States Trade Representative is section
141(g)(1) of the Trade Act of 1974 (19 U.S.C. 2171(g)(1)). The
most recent authorization of appropriations for USTR was under
section 101 of the Customs and Trade Act of 1990 [P.L. 101-
382]. Under 19 U.S.C. 2171, Congress has adopted a two-year
authorization process to provide USTR with guidance as it plans
its budget as well as guidance from the Committee for the
appropriation process.
Explanation of the provision
This provision authorizes $30,000,000 for FY 2002 and
$31,000,000 for FY 2003. The provision requires submission of
out-of-year budget projections to the Ways and Means and
Finance Committees. In light of the substantial increase in
trade negotiation work to be conducted by USTR and the
associated need for consultations with Congress, this provision
would authorize the addition of two individuals to assist the
office of Congressional Affairs.
Reason for change
The Committee recognizes that USTR needs increased budget
authorization to meet its expenses and hire new employees. The
legislation authorizes the full amount of the President's
budget request for USTR. The Committee wants to be sure USTR
has enough resources so that the World Trade Organization (WTO)
negotiations will successfully open trade in favor of the
interests of the United States.

Title III--United States International Trade Commission

Sec. 301. Authorization of appropriations

Present law
The statutory authority for budget authorization for the
International Trade Commission is section 330(e)(2)(A) of the
Tariff Act of 1930 (19 U.S.C. 1330(e)(2)(A)). The most recent
authorization of appropriations for the ITC was under section
101 of the Customs and Trade Act of 1990 [P.L. 101-382]. Under
19 U.S.C. 1330, Congress has adopted a two-year authorization
process to provide the ITC with guidance as it plans its budget
as well as guidance from the Committees for the appropriation
process.
Explanation of the provision
This provision authorizes $51,400,000 for FY 2002 and
$53,400,000 for FY 2003. The provision requires submission of
out-of-year budget projections to the Ways and Means and
Finance Committees.
Reason for change
The Committee recognizes that the ITC needs increased
budget authorization to meet the increased workload. The
legislation authorizes the full amount of the President's
budget request for the ITC.

Title IV--Other Trade Provisions

Sec. 401. Increase in aggregate value of articles exempt from duty
acquired abroad by United States residents

Present law
The Harmonized Tariff Schedule at subheading 9804.00.65
currently provides a $400 duty exemption for travelers
returning from abroad.
Explanation of the provision
The provision would increase the current $400 duty
exemption to $800.
Reason for change
The current duty exemption of $400 has been in place since
1983 and after inflation no longer reflects the same level of
buying power. An increase is therefore in order.

Sec. 402. Regulatory audit procedures

Present law
Section 509 of the Tariff Act of 1930 (19 U.S.C. 1509)
provides the authority for Customs to audit persons making
entry of merchandise into the U.S. In the course of such audit,
Customs auditors may identify discrepancies, including
underpayments of duties. However, if there also are
overpayments, there is no requirement that such overpayments be
offset against the underpayments if the underlying entry has
been liquidated.
Explanation of the provision
This provision would require that when conducting an audit,
Customs must recognize and offset overpayments and
overdeclarations of duties, quantities and values against
underpayments and underdeclarations. As an example, if during
an audit Customs finds that an importer has underpaid duties
associated with one entry of merchandise by $100 but has also
overpaid duties from another entry of merchandise by $25, then
any assessment by Customs must be the difference of $75.
Reason for change
A government audit should be an even-handed and neutral
evaluation of a person's compliance with the law. The
government should treat overpayments/overdeclarations and
underpayments/ underdeclarations equally, and if both are found
during an audit, they should be used to offset each other. The
Committee redrafted this provision on the basis of concerns
from Customs. It is the Committee's intention that this
provision shall not affect in any way Customs' current
authority to define an audit's scope, time period, and
methodology.

III. VOTES OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the following statements are made
concerning the votes of the Committee on Ways and Means in its
consideration of the bill, H.R. 3129.

motion to report the bill

The bill, H.R. 3129, as amended, was ordered favorably
reported by voice vote (with a quorum being present).

votes on amendments

The Chairman's amendment in the nature of a substitute was
agreed to by a rollcall vote of 20 yeas to 14 nays. The vote
was as follows:

----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Present Representative Yea Nay Present
----------------------------------------------------------------------------------------------------------------
Mr. Thomas....................... X ....... ........ Mr. Rangel......... ....... ........ ........
Mr. Crane........................ X ....... ........ Mr. Stark.......... ....... X ........
Mr. Shaw......................... X ....... ........ Mr. Matsui......... ....... X ........
Mrs. Johnson..................... X ....... ........ Mr. Coyne.......... ....... ........ ........
Mr. Houghton..................... ........ ....... ........ Mr. Levin.......... ....... X ........
Mr. Herger....................... X ....... ........ Mr. Cardin......... ....... X ........
Mr. McCrery...................... ........ ....... ........ Mr. McDermott...... ....... X ........
Mr. Camp......................... X ....... ........ Mr. Kleczka........ ....... X ........
Mr. Ramstad...................... X ....... ........ Mr. Lewis (GA)..... ....... X ........
Mr. Nussle....................... X ....... ........ Mr. Neal........... ....... X ........
Mr. Johnson...................... X ....... ........ Mr. McNulty........ ....... ........ ........
Ms. Dunn......................... ........ ....... ........ Mr. Jefferson...... ....... X ........
Mr. Collins...................... X ....... ........ Mr. Tanner......... ....... X ........
Mr. Portman...................... X ....... ........ Mr. Becerra........ ....... X ........
Mr. English...................... X ....... ........ Mrs. Thurman....... ....... X ........
Mr. Watkins...................... X ....... ........ Mr. Doggett........ ....... X ........
Mr. Hayworth..................... X ....... ........ Mr. Pomeroy........ ....... X ........
Mr. Weller....................... X ....... ........
Mr. Hulshof...................... X ....... ........
Mr. McInnis...................... ........ ....... ........
Mr. Lewis (KY)................... X ....... ........
Mr. Foley........................ X ....... ........
Mr. Brady........................ X ....... ........
Mr. Ryan......................... X ....... ........
----------------------------------------------------------------------------------------------------------------

A rollcall vote was conducted on the following amendment to
the Chairman's amendment in the nature of a substitute:
An amendment by Mr. Stark on behalf of himself and Mr.
Rangel, which would strike sections 122 and 123, correcting
overtime and premium pay, was defeated by a rollcall vote of 13
yeas to 20 nays. The vote was as follows:

----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Present Representative Yea Nay Present
----------------------------------------------------------------------------------------------------------------
Mr. Thomas....................... ....... X ........ Mr. Rangel......... ........ ....... ........
Mr. Crane........................ ....... X ........ Mr. Stark.......... X ....... ........
Mr. Shaw......................... ....... X ........ Mr. Matsui......... X ....... ........
Mrs. Johnson..................... ....... X ........ Mr. Coyne.......... ........ ....... ........
Mr. Houghton..................... ....... ........ ........ Mr. Levin.......... X ....... ........
Mr. Herger....................... ....... X ........ Mr. Cardin......... X ....... ........
Mr. McCrery...................... ....... ........ ........ Mr. McDermott...... X ....... ........
Mr. Camp......................... ....... X ........ Mr. Kleczka........ ........ ....... ........
Mr. Ramstad...................... ....... X ........ Mr. Lewis (GA)..... X ....... ........
Mr. Nussle....................... ....... X ........ Mr. Neal........... X ....... ........
Mr. Johnson...................... ....... X ........ Mr. McNulty........ ........ ....... ........
Ms. Dunn......................... ....... ........ ........ Mr. Jefferson...... X ....... ........
Mr. Collins...................... ....... X ........ Mr. Tanner......... X ....... ........
Mr. Portman...................... ....... X ........ Mr. Becerra........ X ....... ........
Mr. English...................... ....... X ........ Mrs. Thurman....... X ....... ........
Mr. Watkins...................... ....... X ........ Mr. Doggett........ X ....... ........
Mr. Hayworth..................... ....... X ........ Mr. Pomeroy........ X ....... ........
Mr. Weller....................... ....... X ........ ...................
Mr. Hulshof...................... ....... X ........
Mr. McInnis...................... ....... ........ ........
Mr. Lewis (KY)................... ....... X ........
Mr. Foley........................ ....... X ........
Mr. Brady........................ ....... X ........
Mr. Ryan......................... ....... X ........
----------------------------------------------------------------------------------------------------------------

PROCEDURAL MOTIONS

A rollcall vote was conducted on a motion by Mr. Crane
pursuant to clause 1 of rule 22 of the Rules of the House that
the Committee authorize the Chairman to offer such motions as
may be necessary in the House to go to conference with the
Senate on the bill H.R. 3129 or a similar Senate bill. The
motion was agreed to by a vote of 19 yeas to 1 nay, and 2
voting present. The vote was as follows:

----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Present Representative Yea Nay Present
----------------------------------------------------------------------------------------------------------------
Mr. Thomas...................... X ....... ........ Mr. Rangel......... ....... ........ .........
Mr. Crane....................... X ....... ........ Mr. Stark.......... ....... ........ .........
Mr. Shaw........................ X ....... ........ Mr. Matsui......... ....... ........ .........
Mrs. Johnson.................... X ....... ........ Mr. Coyne.......... ....... ........ .........
Mr. Houghton.................... ........ ....... ........ Mr. Levin.......... ....... ........ .........
Mr. Herger...................... X ....... ........ Mr. Cardin......... ....... ........ X
Mr. McCrery..................... ........ ....... ........ Mr. McDermott...... ....... ........ .........
Mr. Camp........................ X ....... ........ Mr. Kleczka........ ....... X .........
Mr. Ramstad..................... X ....... ........ Mr. Lewis (GA)..... ....... ........ .........
Mr. Nussle...................... X ....... ........ Mr. Neal........... ....... ........ .........
Mr. Johnson..................... X ....... ........ Mr. McNulty........ ....... ........ .........
Ms. Dunn........................ ........ ....... ........ Mr. Jefferson...... ....... ........ .........
Mr. Collins..................... X ....... ........ Mr. Tanner......... ....... ........ .........
Mr. Portman..................... X ....... ........ Mr. Becerra........ ....... ........ X
Mr. English..................... X ....... ........ Mrs. Thurman....... ....... ........ .........
Mr. Watkins..................... X ....... ........ Mr. Doggett........ ....... ........ .........
Mr. Hayworth.................... X ....... ........ Mr. Pomeroy........ ....... ........ .........
Mr. Weller...................... X ....... ........
Mr. Hulshof..................... X ....... ........
Mr. McInnis..................... ........ ....... ........
Mr. Lewis (KY).................. X
Mr. Foley....................... ........
Mr. Brady....................... X
Mr. Ryan........................ X
----------------------------------------------------------------------------------------------------------------

IV. BUDGET EFFECTS

A. Committee Estimate of Budgetary Effects

In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the following statement is
made concerning the effects on the budget of H.R. 3129, as
reported: The Committee agrees with the estimate prepared by
CBO which is included below.

B. Statement Regarding New Budget Authority and Tax Expenditures

In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee states that
enactment of H.R. 3129 would diminish duty revenues by $6
million per year as a result of the increase in the duty
exemption for travelers from abroad from $400 to $800.

C. Cost Estimate Prepared by the Congressional Budget Office

In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, requiring a cost estimate
prepared by the Congressional Budget Office, the following
report prepared by CBO is provided.

U.S. Congress,
Congressional Budget Office,
Washington, DC, November 20, 2001.
Hon. William ``Bill'' M. Thomas,
Chairman, Committee on Ways and Means,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3129, the Customs
Border Security Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Steven Lieberman
(For Dan L. Crippen, Director).
Enclosure.

H.R. 3129--Customs Border Security Act of 2001

Summary: H.R. 3129 would authorize appropriations for 2002
and 2003 for the U.S. Customs Service, the Office of the U.S.
Trade Representative, and the International Trade Commission.
The authorizations for the Customs Service would include funds
for salaries and expenses, its Automated Commercial Environment
(ACE) computer system, air and marine interdiction,
reestablishment of Customs operations in New York City, and a
program to prevent child pornography. This legislation would
increase the personal duty exemption for travelers entering the
United States. The bill also would make several changes to the
current laws relating to overtime and premium pay for Customs
officers. Finally, H.R. 3129 would direct the General
Accounting Office (GAO) to prepare three reports on various
Customs issues.
Because an appropriation for fiscal year 2002 for the
Customs Service has already been enacted, H.R. 3129 would have
a relatively small effect on spending in that year. CBO
estimates that implementing H.R. 3129 would cost about $2.9
billion over the 2002-2006 period, assuming appropriation of
the authorized and estimated amounts. (About $2.8 billion of
this total would be spending for the Customs Service.) We
estimate that enacting H.R. 3129 also would decrease revenues
by about $4 million annually because of the increased personal
duty exemption. Finally, the bill could have a negligible net
impact on direct spending for overtime and premium pay for
Customs officers. Because the bill would affect revenues and
direct spending, pay-as-you-go procedures would apply.
H.R. 3129 would impose private-sector mandates, as defined
by the Unfunded Mandates Reform Act (UMRA), on certain land,
air, and vessel carriers. CBO estimates that the total direct
cost of those mandates would fall below the annual threshold
established by UMRA for private-sector mandates ($113 million
in 2001, adjusted annually for inflation). The bill contains no
intergovernmental mandates as defined in UMRA and would impose
no costs on state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3129 is shown the following table. The
costs of this legislation fall within budget functions 150
(international affairs), 750 (administration of justice), and
800 (general government).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2002 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION

Spending under current law:
Budget authority............................................... 2,767 0 0 0 0
Estimated outlays.............................................. 2,649 515 160 0 0
Proposed changes:
Estimated authorization level.................................. 107 2,825 0 0 0
Estimated outlays.............................................. 56 2,332 401 143 0
Spending under H.R. 3129:
Estimated authorization level.................................. 2,874 2,825 0 0 0
Estimated outlays.............................................. 2,705 2,847 561 143 0

CHANGES IN REVENUES

Increased personal duty exemption: Estimated revenues.............. -4 -4 -4 -4 -4
----------------------------------------------------------------------------------------------------------------
Notes: 1. The 2002 level is the amount appropriated for that year for the Customs Service, the Office of the
United States Trade Representative, and the International Trade Commission. 2. For fiscal year 2002, most of
the increased funding provided by H.R. 3129 would be for reestablishment of customs operations in New York
City. 3. H.R. 3129 could also affect direct spending, but CBO estimates that any such effects would be less
than $500,000 annually.

Basis of estimate
Assuming appropriation of the necessary amounts, CBO
estimates that implementing the bill would cost about $2.9
billion over the 2002-2006 period. (About $2.8 billion of this
total would be for spending by the Customs Service.) We
estimate that enacting H.R. 3129 also would decrease revenues
by about $4 million annually because of the increased personal
duty exemption for travelers entering the United States.
Enacting the bill could affect direct spending, but we estimate
that any effects would be less than $500,000 annually.
Spending subject to appropriation
For this estimate, CBO assumes that the amounts authorized
by the bill will be appropriated near the start of each fiscal
year and that outlays generally will follow historical spending
rates for the authorized activities or for similar programs.
Based on information from the Customs Service, CBO
estimates that it would cost roughly $100 million over the
2002-2004 period to reestablish its operations in New York
City. The agency's main facility in lower Manhattan, which
housed 800 employees and contained several laboratories, was
destroyed by the terrorist attacks on September 11, 2001. Funds
would be used mostly to equip new office space for Customs
employees and to replace the materials testing and crime
investigation laboratories that were destroyed. Based on
information from GAO, we estimate that the three reports
required by the bill would cost about $1 million in 2002.
Revenues
H.R. 3129 would increase the personal-duty exemption for
persons entering the United States from $400 to $800. This
provision would increase the amount of goods that travelers
from abroad could bring in free of duty. Based on information
from the Customs Service, CBO estimates that this provision
would decrease revenues by about $4 million each year.
Direct spending
The provisions of H.R. 3129 that modify overtime and
premium pay for Customs officers could affect direct spending
since such costs are paid from funds not subject to annual
appropriation. Some of the bill's provisions could increase
these personnel costs, while other provisions would probably
yield savings. CBO estimates that the net effect of H.R. 3129
on direct spending for overtime and premium pay would be less
than $500,000 a year.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. The
changes in outlays and revenues that would be subject to pay-
as-you-go procedures are shown in the following table. For the
purposes of pay-as-you-go procedures, only the effects in the
budget year and the succeeding four years are counted.

----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
---------------------------------------------------------------------
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
----------------------------------------------------------------------------------------------------------------
Changes in outlays........................ 0 0 0 0 0 0 0 0 0 0
Changes in receipts....................... -4 -4 -4 -4 -4 -4 -4 -4 -4 -4
----------------------------------------------------------------------------------------------------------------

Estimated impact on State, local, and tribal governments:
H.R. 3129 contains no intergovernmental mandates as defined in
UMRA and would impose no costs on state, local, or tribal
governments.
Estimated impact on the private sector: H.R. 3129 would
impose private-sector mandates, as defined by UMRA, on certain
land, air, and vessel carriers seeking approval from the U.S.
Customs Service for entry into the United States or for
clearance to proceed from a port or place in the United States.
The bill would require each land, air, or vessel carrier to
provide by electronic transmission cargo manifest information
in advance of such entry or clearance. The bill also would
require such carriers with passengers arriving or departing the
United States to provide by electronic transmission certain
passenger and crew member manifest information in advance of
such entry or clearance. According to the U.S. Customs Service,
all U.S. air carriers and many cargo vessels currently provide
such information on a voluntary basis. Based on information
from representatives of the transportation industry, CBO
estimates that the total direct cost to comply with mandates in
the bill would fall below the annual threshold established by
UMRA for private-sector mandates ($113 million in 2001,
adjusted annually for inflation).
Estimate prepared by: Federal spending: Mark Grabowicz;
Federal revenues: Erin Whitaker; impact on State, local, and
tribal governments: Victoria Heid Hall; impact on the private
sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis; G. Thomas Woodward, Assistant
Director for Tax Analysis.

V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE

A. Committee Oversight Findings and Recommendations

With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives (relating to oversight findings),
the Committee, based on public hearing testimony and
information from the Administration, concluded that it is
appropriate and timely to consider the resolution as reported.

B. Statement of General Performance Goals and Objectives

Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee advises that the
Administration has in place program goals and objectives, which
have been reviewed by the Committee. H.R. 3129 addresses
several items by way of studies and reports for the purpose of
evaluating whether Customs is meetings its goals and
objectives.

C. Constitutional Authority Statement

With respect to clause 3(d)(1) of rule XIII of the Rules of
the House of Representatives, relating to Constitutional
Authority, the Committee states that the Committee's action in
reporting the bill is derived from Article 1 of the
Constitution, Section 8 (``The Congress shall have power to lay
and collect taxes, duties, imposts and excises, to pay the
debts and to provide for * * * the general Welfare of the
United States.'')

VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):

SECTION 301 OF THE CUSTOMS PROCEDURAL REFORM AND SIMPLIFICATION ACT OF
1978

Sec. 301. (a)(1) * * *

* * * * * * *

(3) By not later than the date on which the President submits
to Congress the budget of the United States Government for a
fiscal year, the Commissioner of Customs shall submit to the
Committee on Ways and Means of the House of Representatives and
the Committee on Finance of the Senate the projected amount of
funds for the succeeding fiscal year that will be necessary for
the operations of the Customs Service as provided for in
subsection (b).
(b) Authorization of Appropriations.--
(1) For noncommercial operations.--There are
authorized to be appropriated for the salaries and
expenses of the Customs Service that are incurred in
noncommercial operations not to exceed the following:
[(A) $516,217,000 for fiscal year 1991.
[(B) $542,091,000 for fiscal year 1992.]
(A) $886,513,000 for fiscal year 2002.
(B) $909,471,000 for fiscal year 2003.
(2) For commercial operations.--(A) There are
authorized to be appropriated for the salaries and
expenses of the Customs Service that are incurred in
commercial operations not less than the following:
[(i) $672,021,000 for fiscal year 1991.
[(ii) $705,793,000 for fiscal year 1992.]
(i) $1,603,482,000 for fiscal year 2002.
(ii) $1,645,009,000 for fiscal year 2003.

* * * * * * *

(3) For air interdiction.--There are authorized to be
appropriated for the operation (including salaries and
expenses) and maintenance of the air interdiction
program of the Customs Service not to exceed the
following:
[(A) $143,047,000 for fiscal year 1991.
[(B) $150,199,000 for fiscal year 1992.]
(A) $181,860,000 for fiscal year 2002.
(B) $186,570,000 for fiscal year 2003.
----------

SECTION 5 OF THE ACT OF FEBRUARY 13, 1911

AN ACT To diminish the expense of proceedings on appeal and writ of
error or of certiorari

SEC. 5. OVERTIME AND PREMIUM PAY FOR CUSTOMS OFFICERS.

(a) Overtime Pay.--
(1) In general.--Subject to paragraph (2) and
subsection (c), a customs officer who is officially
assigned to perform work in excess of 40 hours in the
administrative workweek of the officer or in excess of
8 hours in a day shall be compensated for that work at
an hourly rate of pay that is equal to 2 times the
hourly rate of the basic pay of the officer. Overtime
pay provided under this subsection shall not be paid to
any customs officer unless such officer actually
performed work during the time corresponding to such
overtime pay. The preceding sentence shall not apply
with respect to the payment of an award or settlement
to a customs officer who was unable to perform overtime
work as a result of a personnel action in violation of
section 5596 of title 5, United States Code, section
6(d) of the Fair Labor Standards Act of 1938, or title
VII of the Civil Rights Act of 1964. For purposes of
this paragraph, the hourly rate of basic pay for a
customs officer does not include any premium pay
provided for under subsection (b).

* * * * * * *

(b) Premium Pay for Customs Officers.--
[(1) Night work differential.--
[(A) 3 p.m. to midnight shiftwork.--If the
majority of the hours of regularly scheduled
work of a customs officer occurs during the
period beginning at 3 p.m. and ending at 12
a.m., the officer is entitled to pay for work
during such period (except for work to which
paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay
amounting to 15 percent of that basic rate.
[(B) 11 p.m. to 8 a.m. shiftwork.--If the
majority of the hours of regularly scheduled
work of a customs officer occurs during the
period beginning at 11 p.m. and ending at 8
a.m., the officer is entitled to pay for work
during such period (except for work to which
paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay
amounting to 20 percent of that basic rate.
[(C) 7:30 p.m. to 3:30 a.m. shiftwork.--If
the regularly scheduled work assignment of a
customs officer is 7:30 p.m. to 3:30 a.m., the
officer is entitled to pay for work during such
period (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 15
percent of that basic rate for the period from
7:30 p.m. to 11:30 p.m. and at the officer's
hourly rate of basic pay plus premium pay
amounting to 20 percent of that basic rate for
the period from 11:30 p.m. to 3:30 a.m.]
(1) Night work differential.--
(A) 5 p.m. to midnight.--(i) If any hours of
regularly scheduled work of a customs officer
occur during the hoursof 5 p.m. and 12 a.m.,
the officer is entitled to pay for such hours of work (except for work
to which paragraph (2) or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to not less than 18 percent of
that basic rate.
(ii) If the regularly scheduled work of a
customs officer is 4 p.m. to 12:00 a.m., the
officer is entitled to pay for work during such
period (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to not
less than 18 percent of that basic rate.
(B) Midnight to 6 a.m.--(i) If any hours of
regularly scheduled work of a customs officer
occur during the hours of 12 a.m. and 6 a.m.,
the officer is entitled to pay for such hours
of work (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 25
percent of that basic rate.
(ii) If the regularly scheduled work of a
customs officer is 12 a.m. to 8:00 a.m., the
officer is entitled to pay for work during such
period (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 25
percent of that basic rate.

* * * * * * *

(4) Treatment of premium pay.--Premium pay provided
for under this subsection may not be treated as being
overtime pay or compensation for any purpose. Premium
pay provided under this subsection shall not be paid to
any customs officer unless such officer actually
performed work during the time corresponding to such
premium pay. The preceding sentence shall not apply
with respect to the payment of an award or settlement
to a customs officer who was unable to perform work
during the time described in the preceding sentence as
a result of a personnel action in violation of section
5596 of title 5, United States Code, section 6(d) of
the Fair Labor Standards Act of 1938, or title VII of
the Civil Rights Act of 1964.
(c) Limitations.--
[(1) Fiscal year cap.--The aggregate of overtime pay
under subsection (a) (including commuting compensation
under subsection (a)(2)(B)) and premium pay under
subsection (b) that a customs officer may be paid in
any fiscal year may not exceed $25,000; except that the
Commissioner of Customs or his designee may waive this
limitation in individual cases in order to prevent
excessive costs or to meet emergency requirements of
the Customs Service.]
(1) Fiscal year cap.--The aggregate of overtime pay
under subsection (a) (including commuting compensation
under subsection (a)(2)(B)) that a customs officer may
be paid in any fiscal year may not exceed $30,000,
except that--
(A) the Commissioner of Customs or his or her
designee may waive this limitation in
individual cases in order to prevent excessive
costs or to meet emergency requirements of the
Customs Service; and
(B) upon certification by the Commissioner of
Customs to the Chairmen of the Committee on
Ways and Means of the House of Representatives
and the Committee on Finance of the Senate that
the Customs Service has in operation a system
that provides accurate and reliable data on a
daily basis on overtime and premium pay that is
being paid to customs officers, the
Commissioner is authorized to pay any customs
officer for one work assignment that would
result in the overtime pay of that officer
exceeding the $30,000 limitation imposed by
this paragraph, in addition to any overtime pay
that may be received pursuant to a waiver under
subparagraph (A).

* * * * * * *

(e) Use of Savings From Payment of Premium Pay.--
(1) Use of amounts.--For fiscal year 2002, the
Secretary of the Treasury--
(A) shall determine under paragraph (2) the
amount of savings from the payment of premium
pay to customs officers; and
(B) shall use an amount from the Customs User
Fee Account equal to such amount determined
under paragraph (2) for additional premium pay
described in clauses (i) and (ii) of subsection
(b)(1)(A).
(2) Determination of savings amount.--The Secretary
shall calculate an amount equal to the difference
between--
(A) the estimated cost for premium pay that
would have been incurred during fiscal year
2002 if this section, as in effect on the day
before the date of the enactment of section 123
of the Customs Border Security Act of 2001, had
governed such costs; and
(B) the actual cost for premium pay that is
incurred during fiscal year 2002 under this
section, as amended by section 123 of the
Customs Border Security Act of 2001.
[(e)] (f) Definitions.--As used in this section:
(1) * * *

* * * * * * *

----------

SECTION 3061 OF THE REVISED STATUTES OF THE UNITED STATES

Sec. 3061. (a) Any of the officers or persons authorized to
board or search vessels may stop, search, and examine, as well
without as within their respective districts, any vehicle,
beast, or person, on which or whom he or they shall suspect
there is merchandise which is subject to duty, or shall have
been introduced into the United States in any manner contrary
to law, whether by the person in possession or charge, or by,
in, or upon such vehicle or beast, or otherwise, and to search
any trunk or envelope, wherever found, in which he may have a
reasonable cause to suspect there is merchandise which was
imported contrary to law; and if any such officer or other
person so authorized shall find any merchandise on or about any
such vehicle, beast, or person, or in anysuch trunk or
envelope, which he shall have reasonable cause to believe is subject to
duty, or to have been unlawfully introduced into the United States,
whether by the person in possession or charge, or by, in, or upon such
vehicle, beast, or otherwise, he shall seize and secure the same for
trial.
(b) Any officer or employee of the United States conducting a
search of a person pursuant to subsection (a) shall not be held
liable for any civil damages as a result of such search if the
officer or employee performed the search in good faith.
----------

TARIFF ACT OF 1930

* * * * * * *

TITLE III--SPECIAL PROVISIONS

* * * * * * *

Part II--United States Tariff Commission

* * * * * * *

SEC. 318. EMERGENCIES.

(a) Whenever the President shall by proclamation declare an
emergency to exist by reason of a state of war, or otherwise,
he may authorize the Secretary of the Treasury to extend during
the continuance of such emergency the time herein prescribed
for the performance of any act, and may authorize the Secretary
of the Treasury to permit, under such regulations as the
Secretary of the Treasury may prescribe, the importation free
of duty of food, clothing, and medical, surgical, and other
supplies for use in emergency relief work. The Secretary of the
Treasury shall report to the Congress any action taken under
the provisions of this section.
(b)(1) Notwithstanding any other provision of law, the
Secretary of the Treasury, when necessary to respond to a
national emergency declared under the National Emergencies Act
(50 U.S.C. 1601 et seq.) or to a specific threat to human life
or national interests, is authorized to take the following
actions on a temporary basis:
(A) Eliminate, consolidate, or relocate any office or
port of entry of the Customs Service.
(B) Modify hours of service, alter services rendered
at any location, or reduce the number of employees at
any location.
(C) Take any other action that may be necessary to
directly respond to the national emergency or specific
threat.
(2) Notwithstanding any other provision of law, the
Commissioner of Customs, when necessary to respond to a
specific threat to human life or national interests, is
authorized to close temporarily any Customs office or port of
entry or take any other lesser action that may be necessary to
respond to the specific threat.
(3) The Secretary of the Treasury or the Commissioner of
Customs, as the case may be, shall notify the Committee on Ways
and Means of the House of Representatives and the Committee on
Finance of the Senate not later than 72 hours after taking any
action under paragraph (1) or (2).

* * * * * * *

SEC. 330. ORGANIZATION OF THE COMMISSION.

(a) * * *

* * * * * * *

(e) Authorization of Appropriations.--(1) * * *
(2)(A) There are authorized to be appropriated to the
Commission for necessary expenses (including the rental of
conference rooms in the District of Columbia and elsewhere) not
to exceed the following:
[(i) $41,170,000 for fiscal year 1991.
[(ii) $44,052,000 for fiscal year 1992.]
(i) $51,400,000 for fiscal year 2002.
(ii) $53,400,000 for fiscal year 2003.

* * * * * * *

(4) By not later than the date on which the President submits
to Congress the budget of the United States Government for a
fiscal year, the Commission shall submit to the Committee on
Ways and Means of the House of Representatives and the
Committee on Finance of the Senate the projected amount of
funds for the succeeding fiscal year that will be necessary for
the Commission to carry out its functions.

* * * * * * *

TITLE IV--ADMINISTRATIVE PROVISIONS

PART I--DEFINITIONS AND NATIONAL CUSTOMS AUTOMATION PROGRAM

Subpart A--Definitions

* * * * * * *

SEC. 401. MISCELLANEOUS.

When used in this title or in Part I of Title III--
(a) * * *

* * * * * * *

(t) The term ``land, air, or vessel carrier'' means a land,
air, or vessel carrier, as the case may be, that transports
goods or passengers for payment or other consideration,
including money or services rendered.

* * * * * * *

Part II--Report, Entry, and Unlading of Vessels and Vehicles

SEC. 431. MANIFEST--REQUIREMENT, FORM, AND CONTENTS.

(a) * * *
(b) Production of Manifest.--(1) Any manifest required by the
Customs Service shall be signed, produced, delivered or
electronically transmitted by the master or person in charge of
thevessel, aircraft, or vehicle, or by any other authorized
agent of the owner or operator of the vessel, aircraft, or vehicle in
accordance with the requirements prescribed under subsection (d). A
manifest may be supplemented by bill of lading data supplied by the
issuer of such bill. If any irregularity of omission or commission
occurs in any way in respect to any manifest or bill of lading data,
the owner or operator of the vessel, aircraft or vehicle, or any party
responsible for such irregularity, shall be liable for any fine or
penalty prescribed by law with respect to such irregularity. The
Customs Service may take appropriate action against any of the parties.
(2) In addition to any other requirement under this section,
for each land, air, or vessel carrier required to make entry or
obtain clearance under the customs laws of the United States,
the pilot, the master, operator, or owner of such carrier (or
the authorized agent of such operator or owner) shall provide
by electronic transmission cargo manifest information in
advance of such entry or clearance in such manner, time, and
form as prescribed under regulations by the Secretary. The
Secretary may exclude any class of land, air, or vessel carrier
for which the Secretary concludes the requirements of this
subparagraph are not necessary.

* * * * * * *

(d) Regulations.--
(1) In general.--The Secretary shall by regulation--
(A) specify the form for, and the information
and data that must be contained in, the
manifest required by subsection (a) or
subsection (b)(2);

* * * * * * *

(C) prescribe the manner of production for,
and the delivery or electronic transmittal of
the manifest required by subsection (a) or
subsection (b)(2); and

* * * * * * *

SEC. 432. PASSENGER AND CREW MANIFEST INFORMATION REQUIRED FOR LAND,
AIR, OR VESSEL CARRIERS.

(a) In General.--For every person arriving or departing on a
land, air, or vessel carrier required to make entry or obtain
clearance under the customs laws of the United States, the
pilot, the master, operator, or owner of such carrier (or the
authorized agent of such operator or owner) shall provide by
electronic transmission manifest information described in
subsection (b) in advance of such entry or clearance in such
manner, time, and form as prescribed under regulations by the
Secretary.
(b) Information Described.--The information described in this
subsection shall include for each person described in
subsection (a), the person's--
(1) full name;
(2) date of birth and citizenship;
(3) gender;
(4) passport number and country of issuance;
(5) United States visa number or resident alien card
number, as applicable;
(6) passenger name record; and
(7) such additional information that the Secretary,
by regulation, determines is reasonably necessary to
ensure aviation and maritime safety pursuant to the
laws enforced or administered by the Customs Service.

* * * * * * *

SEC. 509. EXAMINATION OF BOOKS AND WITNESSES.

(a) * * *
(b) Regulatory Audit Procedures.--
(1) * * *

* * * * * * *

(6)(A) If during the course of any audit concluded
under this subsection, the Customs Service identifies
overpayments of duties or fees or over-declarations of
quantities or values that are within the time period
and scope of the audit that the Customs Service has
defined, then in calculating the loss of revenue or
monetary penalties under section 592, the Customs
Service shall treat the overpayments or over-
declarations on finally liquidated entries as an offset
to any underpayments or underdeclarations also
identified on finally liquidated entries if such
overpayments or over-declarations were not made by the
person being audited for the purpose of violating any
provision of law.
(B) Nothing in this paragraph shall be construed to
authorize a refund not otherwise authorized under
section 520.

* * * * * * *

SEC. 583. EXAMINATION OF OUTBOUND MAIL.

(a) Examination.--
(1) In general.--For purposes of ensuring compliance
with the Customs laws of the United States and other
laws enforced by the Customs Service, including the
provisions of law described in paragraph (2), a Customs
officer may, subject to the provisions of this section,
stop and search at the border, without a search
warrant, mail of domestic origin transmitted for export
by the United States Postal Service and foreign mail
transiting the United States that is being imported or
exported by the United States Postal Service.
(2) Provisions of law described.--The provisions of
law described in this paragraph are the following:
(A) Section 5316 of title 31, United States
Code (relating to reports on exporting and
importing monetary instruments).
(B) Sections 1461, 1463, 1465, and 1466 and
chapter 110 of title 18, United States Code
(relating to obscenity and child pornography).
(C) Section 1003 of the Controlled Substances
Import and Export Act (21 U.S.C. 953; relating
to exportation of controlled substances).
(D) The Export Administration Act of 1979 (50
U.S.C. app. 2401 et seq.).
(E) Section 38 of the Arms Export Control Act
(22 U.S.C. 2778).
(F) The International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.).
(b) Search of Mail Not Sealed Against Inspection and Other
Mail.--Mail not sealed against inspection under the postal laws
and regulations of the United States, mail which bears a
customs declaration, and mail with respect to which the sender
or addressee has consented in writing to search, may be
searched by a Customs officer.
(c) Search of Mail Sealed Against Inspection.--(1) Mail
sealed against inspection under the postal laws and regulations
of the United States may be searched by a Customs officer,
subject to paragraph (2), upon reasonable cause to suspect that
such mail contains one or more of the following:
(A) Monetary instruments, as defined in section 1956
of title 18, United States Code.
(B) A weapon of mass destruction, as defined in
section 2332a(b) of title 18, United States Code.
(C) A drug or other substance listed in schedule I,
II, III, or IV in section 202 of the Controlled
Substances Act (21 U.S.C. 812).
(D) National defense and related information
transmitted in violation of any of sections 793 through
798 of title 18, United States Code.
(E) Merchandise mailed in violation of section 1715
or 1716 of title 18, United States Code.
(F) Merchandise mailed in violation of any provision
of chapter 71 (relating to obscenity) or chapter 110
(relating to sexual exploitation and other abuse of
children) of title 18, United States Code.
(G) Merchandise mailed in violation of the Export
Administration Act of 1979 (50 U.S.C. app. 2401 et
seq.).
(H) Merchandise mailed in violation of section 38 of
the Arms Export Control Act (22 U.S.C. 2778).
(I) Merchandise mailed in violation of the
International Emergency Economic Powers Act (50 U.S.C.
1701 et seq.).
(J) Merchandise mailed in violation of the Trading
with the Enemy Act (50 U.S.C. app. 1 et seq.).
(K) Merchandise subject to any other law enforced by
the Customs Service.
(2) No person acting under authority of paragraph (1) shall
read, or authorize any other person to read, any correspondence
contained in mail sealed against inspection unless prior to so
reading--
(A) a search warrant has been issued pursuant to Rule
41, Federal Rules of Criminal Procedure; or
(B) the sender or addressee has given written
authorization for such reading.

* * * * * * *

----------

SECTION 141 OF THE TRADE ACT OF 1974

SEC. 141. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE.

(a) * * *

* * * * * * *

(g)(1)(A) There are authorized to be appropriated to the
Office for the purposes of carrying out its functions [not to
exceed] the following:
[(i) $23,250,000 for fiscal year 1991.
[(ii) $21,077,000 for fiscal year 1992.]
(i) $30,000,000 for fiscal year 2002.
(ii) $31,000,000 for fiscal year 2003.
(B) Of the amounts authorized to be appropriated under
subparagraph (A) for any fiscal year--
(i) not to exceed $98,000 may be used for
entertainment and representation expenses of the
Office; and
[(ii) not to exceed $2,050,000 may be used to pay the
United States share of the expenses of binational
panels and extraordinary challenge committees convened
pursuant to chapter 19 of the United States-Canada
Free-Trade Agreement; and]
[(iii)] (ii) not to exceed $1,000,000 shall remain
available until expended.

* * * * * * *

(3) By not later than the date on which the President submits
to Congress the budget of the United States Government for a
fiscal year, the United States Trade Representative shall
submit to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate the
projected amount of funds for the succeeding fiscal year that
will be necessary for the Office to carry out its functions.
----------

HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES

* * * * * * *

CHAPTER 98--SPECIAL CLASSIFICATION PROVISIONS

* * * * * * *

Subchapter IV--Personal Exemptions Extended to Residents and
Nonresidents

* * * * * * *

----------------------------------------------------------------------------------------------------------------
Rates of Duty
------------------------------------------------------------------------
Heading/ Article Description 1
Subheading ---------------------------------- 2
General Special
----------------------------------------------------------------------------------------------------------------
9804.00.65 Articles, ........... Free............. Free............
accompanying a
person, not over
[$400] $800 in
aggregate fair
retail value in the
country of
acquisition,
including (but only
in the case of an
individual who has
attained the age of
21) not more than 1
liter of alcoholic
beverages and
including not more
than 200 cigarettes
and 100 cigars.....
* * * * * * *
----------------------------------------------------------------------------------------------------------------

VII. DISSENTING VIEWS

We reluctantly express our opposition to H.R. 3129.
In the aftermath of September 11th, we had hoped that
Democrats and Republicans could work together to produce a
Customs authorization bill that provides Customs with the tools
necessary to protect our borders, and that shows support for
the men and women performing that function. Regrettably,
Republicans on the Committee did not share this view. With
respect to providing Customs with the appropriate tools, this
bill is based on the Customs' budget request and House
Appropriations bill, both of which pre-date September 11th.
Moreover, the Majority includes in this bill the same
authorization priorities included in the bill they drafted
three years ago. Authorizations for equipment were not updated
to reflect needs that have clearly presented themselves in
recent weeks. In fact, rather than bolstering Customs' efforts
to combat terrorism, one element of the bill will undermine it
by penalizing one-third of the Customs inspector workforce.
Section 123 of this bill amends existing law governing the
payment of night shift differential pay for Customs inspectors.
According to Customs officials' testimony before the Committee,
over 2,000 hardworking men and women will lose money under the
Majority's proposal. The Majority does not offer any legitimate
justification for making the proposed changes. They do not
contend that Customs inspectors are overpaid. They do not
contend that there is abuse in the existing system. The
Majority, in fact, offers no explanation for the change other
than they disagree with what hours qualify for premium pay. In
a vacuum, that rationale might be sufficient. But in the real
world, where a change such as the one the Majority is proposing
will result in real people losing real money, that rationale is
insufficient, particularly when the people affected are the
very ones that serve as our front line of defense against
terrorism.
The existing provision governing night shift differential
pay takes a balanced approach toward compensating Customs
officers for working odd hour shifts. The current law governing
night shift differential pay was passed by Congress in 1993, as
part of a comprehensive package of Customs compensation
reforms, the Customs Officers' Pay Reform Amendments
(``COPRA''), (P.L. 103-66, 107 Stat. 670). The purpose of the
reforms was to rationalize the method of paying Customs
officers for overtime, while also ensuring that Customs
officers received pay commensurate with the important work they
perform. To achieve this balance, Congress, on a bipartisan
basis, altered Customs officers' entire compensation structure,
including the amendment to the hours eligible for and the wage
rate applied to night shift differential pay. By considering
and amending compensation on an aggregate basis, Congress
ensured that the correction of certain payment abuses did not
result in Customs officers receiving an unwarranted cut in pay.
On night shift differential pay, the 1993 reforms provided
that
--if a majority of hours worked by a Customs officer
in a shift fell between 3 p.m. and midnight, all hours
in the shift were paid at the hourly rate + 15%;
--if a majority of hours worked by a Customs officer
in a shift fell between 11 p.m. and 8 a.m., all hours
in the shift were paid at the hourly rate + 20%;
--however, if a majority of the hours worked by a
Customs officer in a shift did not fall within the 3
p.m. to 8 a.m. period, the employee was paid at the
hourly rate only.
The purpose of this premium is to compensate Customs
officers for working shifts that begin or end outside a normal
work day (i.e., 3 p.m. to 11 p.m., midnight to 8 a.m.). As
stated in the 1993 Committee report, the Committee found that
these odd hour shifts, which were assigned by management (and
not the employee), had ``an adverse impact on the quality of
life of Customs officials who are required to work regularly
scheduled shifts at night or on Sundays and holidays.'' H. Rep.
No. 103-11, at 573, 574 (May 25, 1993). Recognizing this
problem, the Committee amended the hours eligible for and the
wage rate applied to the night shift differential specifically
to provide for ``shift differential compensation at levels
substantially greater than applied generally to other Federal
employees for such regularly scheduled work.'' H. Rep. No. 103-
11, at 573, 574 (May 25, 1993).
Section 123 of the bill alters the balanced approach
crafted in 1993 in two ways. First, the provision restricts the
hours that qualify for the night shift differential to hours
between 5 p.m. and 6 a.m. Second, the provision compensates
Customs officers at the differential rate only for those hours
that occur between 5 p.m. and 6 a.m. (with two limited
exceptions), and not the entire shift. These changes will mean
that a Grade 9 Customs officer who works a shift starting at 3
a.m. and ending at 11 a.m. will receive the shift differential
for only 3 hours of that shift, resulting in a loss to that
Customs officer of $75 per week.
The shifts most adversely affected under the Majority's
proposal include four heavily worked shifts at major airports.
At New York's JFK airport, for example, there are 200
inspectors who work the 1 p.m.-9 p.m. shift. Sixty-six of those
inspectors are grade 9 (earning a base pay of $37,000-$49,000),
and would lose $2,220 per year under the Majority's proposal.
To offset some of the loss in pay likely to occur, section
121 of the bill adjusts the overtime cap that, under current
law, restricts the amount of overtime pay a Customs officer may
earn in one year. In effect, this adjustment would allow
Customs officers to work more overtime to compensate for lost
wages, or put another way, Customs officers will have to work
more to get the same pay. Such a result is unfair. It is not
even clear that it will be possible for the officers whose pay
is reduced to work the additional hours to make up for the loss
in pay. Moreover, only a small percentage of officers currently
reach the overtime cap, and therefore would even benefit from
the new provision.
We are not opposed to considering amendments to Customs
officers pay, if a credible study evaluates and recommends that
legislative changes be made. We have indicated that we would
support a study, as the Majority has decided to do on two other
Customs employee issues. However, we are opposed to cutting
someone's wages because a few Members of this Committeeare
fixated on nomenclature (``night pay'') rather than the practical
realities of the total Customs pay package. The men and women of the
U.S. Customs Service perform vital functions with respect to both law
enforcement--serving as a primary defense against terrorism--and
preserving the integrity of U.S. trade with foreign nations. Their
current compensation structure was designed to take account of the
unusual stresses of their job--both the on-the-job safety risks and the
irregular hours. Those aspects of a Customs officer's job have only
become more acute since September 11. Now is not the time to
unilaterally cut these officers' pay, which is precisely what the
Customs Service stated that H.R. 3129 will do to one third of these
inspectors.
In addition, we have serious concerns about two other
provisions in the bill. Section 141 would provide any officer
conducting a personal search at a border immunity from civil
damages if the officer performed the search in ``good faith.''
Section 144 would allow the U.S. Customs Service to open
outbound international mail without a warrant.

Personal Search

Section 141 is characterized as a ``procedural'' device to
allow civil cases against individual customs agents to be
dismissed in the early stages of litigation concerning their
official duties. However, a plain reading of Section 141
evidences an intent to carve out a broader standard of immunity
than that existing under current law. The existing doctrine of
qualified immunity shields public officials performing
discretionary functions from civil damages if their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person should have
known. The Supreme Court has repeatedly held that the objective
reasonableness of an officer's behavior, not a subjective
``good faith'' standard, is the proper test for liability. This
provision could weaken protections against racial profiling and
other illegal and unconstitutional searches by the Customs
Service. Despite the Administration's stated intent, section
141 appears to be a substantive, and not a procedural change.
Civil lawsuits against government officials and agencies
are an important deterrent to racial profiling and
unconstitutional and unlawful searches. Without the possibility
of a lawsuit, individuals who have been treated in an
unconstitutional manner by a government agency would have no
redress, and the government agents would have less incentive to
comply with the Constitution. Providing Customs officers with
expanded immunity is not likely to have any impact on
decreasing terrorism, but it will increase the likelihood that
innocent passengers will have their constitutional rights
violated.

Outbound Mail

Under current law, the Customs Service is empowered to
search, without a warrant, inbound mail handled by the United
States Postal Service and packages and letters handled by
private carriers such as Federal Express and the United Parcel
Service. This ``border exception'' to the Fourth Amendment
derives from the traditional authority of the sovereign to
protect its borders against inbound contraband and to collect
duties on inbound freight.
Section 144 would allow Customs officials to open
``sealed'' mail with ``reasonable cause,'' a lower standard
than probable cause, and would eliminate the need for judicial
review. Moreover, section 144 would allow Customs officials to
open ``unsealed'' mail, and any mail bearing a Customs
declaration for no cause whatsoever. People in the United
States have an expectation of privacy in the mail they send to
friends, family, or business associates abroad. The Customs
Service's interest in confiscating illegal weapons' shipments,
drugs or other contraband is adequately protected by its
ability to secure a search warrant when it has probable cause.
Short of an emergency, postal officials can always hold a
package while they wait for a court to issue a warrant.
We are not opposed per se to the policy underlying these
amendments. For example, on the good faith immunity provision
we did seek language prior to the mark-up that might clarify
what was meant by ``good faith.'' The change we sought would
have made the provision procedural, rather than substantive.
Our suggestion was not incorporated into the bill, however. We
hope that the courts will incorporate the definition of ``good
faith'' included in the Committee report, as the Administration
has assured the Committee. Notwithstanding, we remain
concerned, and absent clarification and more information as to
why these provisions are necessary, we believe the current
language is unnecessary and potentially damaging to
constitutional rights.

Charles B. Rangel.
Xavier Becerra.
Jerry Kleczka.
Pete Stark.
Lloyd Doggett.
Richard E. Neal.
Sander Levin.
Jim McDermott.
Robert T. Matsui.
William J. Coyne.
John Lewis.
Earl Pomeroy.