[Congressional Record Volume 162, Number 170 (Tuesday, November 29, 2016)]
[Senate]
[Pages S6557-S6560]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 5115. Mr. McCONNELL (for Mr. Cornyn) proposed an amendment to the
bill S. 461, to provide for alternative financing arrangements for the
provision of certain services and the construction and maintenance of
infrastructure at land border ports of entry, and for other purposes;
as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Cross-Border Trade
Enhancement Act of 2016''.
SEC. 2. PUBLIC-PRIVATE PARTNERSHIPS.
(a) In General.--Title IV of the Homeland Security Act of
2002 (6 U.S.C. 202 et seq.) is amended by adding at the end
the following:
``Subtitle G--U.S. Customs and Border Protection Public Private
Partnerships
``SEC. 481. FEE AGREEMENTS FOR CERTAIN SERVICES AT PORTS OF
ENTRY.
``(a) In General.--Notwithstanding section 13031(e) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 (19
U.S.C. 58c(e)) and section 451 of the Tariff Act of 1930 (19
U.S.C. 1451), the Commissioner of U.S. Customs and Border
Protection, upon the request of any entity, may enter into a
fee agreement with such entity under which--
``(1) U.S. Customs and Border Protection shall provide
services described in subsection (b) at a United States port
of entry or any other facility at which U.S. Customs and
Border Protection provides or will provide such services;
``(2) such entity shall remit to U.S. Customs and Border
Protection a fee imposed under subsection (h) in an amount
equal to the full costs that are incurred or will be incurred
in providing such services; and
``(3) if space is provided by such entity, each facility at
which U.S. Customs and Border Protection services are
performed shall be maintained and equipped by such entity,
without cost to the Federal Government, in accordance with
U.S. Customs and Border Protection specifications.
``(b) Services Described.--The services described in this
subsection are any activities of any employee or Office of
Field Operations contractor of U.S. Customs and Border
Protection (except employees of the U.S. Border Patrol, as
established under section 411(e)) pertaining to, or in
support of, customs, agricultural processing, border
security, or immigration inspection-related matters at a
[[Page S6558]]
port of entry or any other facility at which U.S. Customs and
Border Protection provides or will provide services.
``(c) Modification of Prior Agreements.--The Commissioner
of U.S. Customs and Border Protection, at the request of an
entity who has previously entered into an agreement with U.S.
Customs and Border Protection for the reimbursement of fees
in effect on the date of enactment of this section, may
modify such agreement to implement any provisions of this
section.
``(d) Limitations.--
``(1) Impacts of services.--The Commissioner of U.S.
Customs and Border Protection--
``(A) may enter into fee agreements under this section only
for services that--
``(i) will increase or enhance the operational capacity of
U.S. Customs and Border Protection based on available
staffing and workload; and
``(ii) will not shift the cost of services funded in any
appropriations Act, or provided from any account in the
Treasury of the United States derived by the collection of
fees, to entities under this Act; and
``(B) may not enter into a fee agreement under this section
if such agreement would unduly and permanently impact
services funded in any appropriations Act, or provided from
any account in the Treasury of the United States, derived by
the collection of fees.
``(2) Number.--There shall be no limit to the number of fee
agreements that the Commissioner of U.S. Customs and Border
Protection may enter into under this section.
``(e) Air Ports of Entry.--
``(1) Fee agreement.--Except as otherwise provided in this
subsection, a fee agreement for U.S. Customs and Border
Protection services at an air port of entry may only provide
for the payment of overtime costs of U.S. Customs and Border
Protection officers and salaries and expenses of U.S. Customs
and Border Protection employees to support U.S. Customs and
Border Protection officers in performing law enforcement
missions.
``(2) Small airports.--Notwithstanding paragraph (1), U.S.
Customs and Border Protection may receive reimbursement in
addition to overtime costs if the fee agreement is for
services at an air port of entry that has fewer than 100,000
arriving international passengers annually.
``(3) Covered services.--In addition to costs described in
paragraph (1), a fee agreement for U.S. Customs and Border
Protection services at an air port of entry referred to in
paragraph (2) may provide for the reimbursement of--
``(A) salaries and expenses of not more that 5 full-time
equivalent U.S. Customs and Border Protection Officers beyond
the number of such officers assigned to the port of entry on
the date on which the fee agreement was signed;
``(B) salaries and expenses of employees of U.S. Customs
and Border Protection, other than the officers referred to in
subparagraph (A), to support U.S. Customs and Border
Protection officers in performing law enforcement functions;
and
``(C) other costs incurred by U.S. Customs and Border
Protection relating to services described in subparagraph
(B), such as temporary placement or permanent relocation of
employees, including incentive pay for relocation, as
appropriate.
``(f) Port of Entry Size.--The Commissioner of U.S. Customs
and Border Protection shall ensure that each fee agreement
proposal is given equal consideration regardless of the size
of the port of entry.
``(g) Denied Application.--
``(1) In general.--If the Commissioner of U.S. Customs and
Border Protection denies a proposal for a fee agreement under
this section, the Commissioner shall provide the entity
submitting such proposal with the reason for the denial
unless--
``(A) the reason for the denial is law enforcement
sensitive; or
``(B) withholding the reason for the denial is in the
national security interests of the United States.
``(2) Judicial review.--Decisions of the Commissioner of
U.S. Customs and Border Protection under paragraph (1) are in
the discretion of the Commissioner and are not subject to
judicial review.
``(h) Fee.--
``(1) In general.--The amount of the fee to be charged
under an agreement authorized under subsection (a) shall be
paid by each entity requesting U.S. Customs and Border
Protection services, and shall be for the full cost of
providing such services, including the salaries and expenses
of employees and contractors of U.S. Customs and Border
Protection, to provide such services and other costs incurred
by U.S. Customs and Border Protection relating to such
services, such as temporary placement or permanent relocation
of such employees and contractors.
``(2) Timing.--The Commissioner of U.S. Customs and Border
Protection may require that the fee referred to in paragraph
(1) be paid by each entity that has entered into a fee
agreement under subsection (a) with U.S. Customs and Border
Protection in advance of the performance of U.S. Customs and
Border Protection services.
``(3) Oversight of fees.--The Commissioner of U.S. Customs
and Border Protection shall develop a process to oversee the
services for which fees are charged pursuant to an agreement
under subsection (a), including--
``(A) a determination and report on the full costs of
providing such services, and a process for increasing such
fees, as necessary;
``(B) the establishment of a periodic remittance schedule
to replenish appropriations, accounts, or funds, as
necessary; and
``(C) the identification of costs paid by such fees.
``(i) Deposit of Funds.--
``(1) Account.--Funds collected pursuant to any agreement
entered into pursuant to subsection (a)--
``(A) shall be deposited as offsetting collections;
``(B) shall remain available until expended without fiscal
year limitation; and
``(C) shall be credited to the applicable appropriation,
account, or fund for the amount paid out of such
appropriation, account, or fund for any expenses incurred or
to be incurred by U.S. Customs and Border Protection in
providing U.S. Customs and Border Protection services under
any such agreement and any other costs incurred or to be
incurred by U.S. Customs and Border Protection relating to
such services.
``(2) Return of unused funds.--The Commissioner of U.S.
Customs and Border Protection shall return any unused funds
collected and deposited into the account described in
paragraph (1) if a fee agreement entered into pursuant to
subsection (a) is terminated for any reason or the terms of
such fee agreement change by mutual agreement to cause a
reduction of U.S. Customs and Border Protections services. No
interest shall be owed upon the return of any such unused
funds.
``(j) Termination.--
``(1) In general.--The Commissioner of U.S. Customs and
Border Protection shall terminate the services provided
pursuant to a fee agreement entered into under subsection (a)
with an entity that, after receiving notice from the
Commissioner that a fee under subsection (h) is due, fails to
pay such fee in a timely manner. If such services are
terminated, all costs incurred by U.S. Customs and Border
Protection that have not been paid shall become immediately
due and payable. Interest on unpaid fees shall accrue based
on the rate and amount established under sections 6621 and
6622 of the Internal Revenue Code of 1986.
``(2) Penalty.--Any entity that, after notice and demand
for payment of any fee under subsection (h), fails to pay
such fee in a timely manner shall be liable for a penalty or
liquidated damage equal to two times the amount of such fee.
Any such amount collected under this paragraph shall be
deposited into the appropriate account specified under
subsection (i) and shall be available as described in such
subsection.
``(3) Termination by the entity.--Any entity who has
previously entered into an agreement with U.S. Customs and
Border Protection for the reimbursement of fees in effect on
the date of enactment of this section, or under the
provisions of this section, may request that such agreement
be amended to provide for termination upon advance notice,
length, and terms that are negotiated between such entity and
U.S. Customs and Border Protection.
``(k) Annual Report.--The Commissioner of U.S. Customs and
Border Protection shall--
``(1) submit an annual report identifying the activities
undertaken and the agreements entered into pursuant to this
section to--
``(A) the Committee on Appropriations of the Senate;
``(B) the Committee on Finance of the Senate;
``(C) the Committee on Homeland Security and Governmental
Affairs of the Senate;
``(D) the Committee on the Judiciary of the Senate;
``(E) the Committee on Appropriations of the House of
Representatives;
``(F) the Committee on Homeland Security of the House of
Representatives;
``(G) the Committee on the Judiciary of the House of
Representatives; and
``(H) the Committee on Ways and Means of the House of
Representatives; and
``(2) not later than 15 days before entering into a fee
agreement, notify the members of Congress that represent the
State or Congressional District in which the affected port of
entry or facility is located of such agreement.
``(l) Rule of Construction.--Nothing in this section may be
construed as imposing on U.S. Customs and Border Protection
any responsibilities, duties, or authorities relating to real
property.
``SEC. 482. PORT OF ENTRY DONATION AUTHORITY.
``(a) Personal Property Donation Authority.--
``(1) In general.--The Commissioner of U.S. Customs and
Border Protection, in consultation with the Administrator of
General Services, may enter into an agreement with any entity
to accept a donation of personal property, money, or
nonpersonal services for the uses described in paragraph (3)
only with respect to the following locations at which U.S.
Customs and Border Protection performs or will be performing
inspection services:
``(A) A new or existing sea or air port of entry.
``(B) An existing Federal Government-owned land port of
entry.
``(C) A new Federal Government-owned land port of entry
if--
``(i) the fair market value of the donation is $50,000,000
or less; and
``(ii) the fair market value, including any personal and
real property donations in
[[Page S6559]]
total, of such port of entry when completed, is $50,000,000
or less.
``(2) Limitation on monetary donations.--Any monetary
donation accepted pursuant to this subsection may not be used
to pay the salaries of U.S. Customs and Border Protection
employees performing inspection services.
``(3) Uses.--Donations accepted pursuant to this subsection
may be used for activities of the Office of Field Operations
set forth in subparagraphs (A) through (F) of section
411(g)(3), which are related to a new or existing sea or air
port of entry or a new or existing Federal Government-owned
land port of entry described in paragraph (1), including
expenses related to--
``(A) furniture, fixtures, equipment, or technology,
including the installation or deployment of such items; and
``(B) the operation and maintenance of such furniture,
fixtures, equipment, or technology.
``(b) Real Property Donation Authority.--
``(1) In general.--Subject to paragraph (3), the
Commissioner of U.S. Customs and Border Protection, and the
Administrator of the General Services Administration, as
applicable, may enter into an agreement with any entity to
accept a donation of real property or money for uses
described in paragraph (2) only with respect to the following
locations at which U.S. Customs and Border Protection
performs or will be performing inspection services:
``(A) A new or existing sea or air port of entry.
``(B) An existing Federal Government-owned land port of
entry.
``(C) A new Federal Government-owned land port of entry
if--
``(i) the fair market value of the donation is $50,000,000
or less; and
``(ii) the fair market value, including any personal and
real property donations in total, of such port of entry when
completed, is $50,000,000 or less.
``(2) Use.--Donations accepted pursuant to this subsection
may be used for activities of the Office of Field Operations
set forth in section 411(g), which are related to the
construction, alteration, operation, or maintenance of a new
or existing sea or air port of entry or a new or existing a
Federal Government-owned land port of entry described in
paragraph (1), including expenses related to--
``(A) land acquisition, design, construction, repair, or
alteration; and
``(B) operation and maintenance of such port of entry
facility.
``(3) Limitation on real property donations.--A donation of
real property under this subsection at an existing land port
of entry owned by the General Services Administration may
only be accepted by the Administrator of General Services.
``(4) Sunset.--
``(A) In general.--The authority to enter into an agreement
under this subsection shall terminate on the date that is
four years after the date of the enactment of this section.
``(B) Rule of construction.--The termination date referred
to in subparagraph (A) shall not apply to carrying out the
terms of an agreement under this subsection if such agreement
is entered into before such termination date.
``(c) General Provisions.--
``(1) Duration.--An agreement entered into under subsection
(a) or (b) (and, in the case of such subsection (b), in
accordance with paragraph (4) of such subsection) may last as
long as required to meet the terms of such agreement.
``(2) Criteria.--In carrying out an agreement entered into
under subsection (a) or (b), the Commissioner of U.S. Customs
and Border Protection, in consultation with the Administrator
of General Services, shall establish criteria regarding--
``(A) the selection and evaluation of donors;
``(B) the identification of roles and responsibilities
between U.S. Customs and Border Protection, the General
Services Administration, and donors;
``(C) the identification, allocation, and management of
explicit and implicit risks of partnering between the Federal
Government and donors;
``(D) decision-making and dispute resolution processes; and
``(E) processes for U.S. Customs and Border Protection, and
the General Services Administration, as applicable, to
terminate agreements if selected donors are not meeting the
terms of any such agreement, including the security standards
established by U.S. Customs and Border Protection.
``(3) Evaluation procedures.--
``(A) In general.--The Commissioner of U.S. Customs and
Border Protection, in consultation with the Administrator of
General Services, as applicable, shall--
``(i) establish criteria for evaluating a proposal to enter
into an agreement under subsection (a) or (b); and
``(ii) make such criteria publicly available.
``(B) Considerations.--Criteria established pursuant to
subparagraph (A) shall consider--
``(i) the impact of a proposal referred to in such
subparagraph on the land, sea, or air port of entry at issue
and other ports of entry or similar facilities or other
infrastructure near the location of the proposed donation;
``(ii) such proposal's potential to increase trade and
travel efficiency through added capacity;
``(iii) such proposal's potential to enhance the security
of the port of entry at issue;
``(iv) the impact of the proposal on reducing wait times at
that port of entry or facility and other ports of entry on
the same border;
``(v) for a donation under subsection (b)--
``(I) whether such donation satisfies the requirements of
such proposal, or whether additional real property would be
required; and
``(II) how such donation was acquired, including if eminent
domain was used;
``(vi) the funding available to complete the intended use
of such donation;
``(vii) the costs of maintaining and operating such
donation;
``(viii) the impact of such proposal on U.S. Customs and
Border Protection staffing requirements; and
``(ix) other factors that the Commissioner or Administrator
determines to be relevant.
``(C) Determination and notification.--
``(i) Incomplete proposals.--
``(I) In general.--Not later than 60 days after receiving
the proposals for a donation agreement from an entity, the
Commissioner of U.S. Customs and Border Protection shall
notify such entity as to whether such proposal is complete or
incomplete.
``(II) Resubmission.--If the Commissioner of U.S. Customs
and Border Protection determines that a proposal is
incomplete, the Commissioner shall--
``(aa) notify the appropriate entity and provide such
entity with a description of all information or material that
is needed to complete review of the proposal; and
``(bb) allow the entity to resubmit the proposal with
additional information and material described in item (aa) to
complete the proposal.
``(ii) Complete proposals.--Not later than 180 days after
receiving a completed proposal to enter into an agreement
under subsection (a) or (b), the Commissioner of U.S. Customs
and Border Protection, with the concurrence of the
Administrator of General Services, as applicable, shall--
``(I) determine whether to approve or deny such proposal;
and
``(II) notify the entity that submitted such proposal of
such determination.
``(4) Supplemental funding.--Except as required under
section 3307 of title 40, United States Code, real property
donations to the Administrator of General Services made
pursuant to subsection (a) and (b) at a GSA-owned land port
of entry may be used in addition to any other funding for
such purpose, including appropriated funds, property, or
services.
``(5) Return of donations.--The Commissioner of U.S.
Customs and Border Protection, or the Administrator of
General Services, as applicable, may return any donation made
pursuant to subsection (a) or (b). No interest shall be owed
to the donor with respect to any donation provided under such
subsections that is returned pursuant to this subsection.
``(6) Prohibition on certain funding.--
``(A) In general.--Except as provided in subsections (a)
and (b) regarding the acceptance of donations, the
Commissioner of U.S. Customs and Border Protection and the
Administrator of General Services, as applicable, may not,
with respect to an agreement entered into under either of
such subsections, obligate or expend amounts in excess of
amounts that have been appropriated pursuant to any
appropriations Act for purposes specified in either of such
subsections or otherwise made available for any of such
purposes.
``(B) Certification requirement.--Before accepting any
donations pursuant to an agreement under subsection (a) or
(b), the Commissioner of U.S. Customs and Border Protection
shall certify to the congressional committees set forth in
paragraph (7) that the donation will not be used for the
construction of a detention facility or a border fence or
wall.
``(7) Annual reports.--The Commissioner of U.S. Customs and
Border Protection, in collaboration with the Administrator of
General Services, as applicable, shall submit an annual
report identifying the activities undertaken and agreements
entered into pursuant to subsections (a) and (b) to--
``(A) the Committee on Appropriations of the Senate;
``(B) the Committee on Environment and Public Works of the
Senate;
``(C) the Committee on Finance of the Senate;
``(D) the Committee on Homeland Security and Governmental
Affairs of the Senate;
``(E) the Committee on the Judiciary of the Senate;
``(F) the Committee on Appropriations of the House of
Representatives;
``(G) the Committee on Homeland Security of the House of
Representatives;
``(H) the Committee on the Judiciary of the House of
Representatives;
``(I) the Committee on Transportation and Infrastructure of
the House of Representatives; and
``(J) the Committee on Ways and Means of the House of
Representatives.
``(d) GAO Report.--The Comptroller General of the United
States shall submit an annual report to the congressional
committees referred to in subsection (c)(7) that evaluates--
``(1) fee agreements entered into pursuant to section 481;
[[Page S6560]]
``(2) donation agreements entered into pursuant to
subsections (a) and (b); and
``(3) the fees and donations received by U.S. Customs and
Border Protection pursuant to such agreements.
``(e) Judicial Review.--Decisions of the Commissioner of
U.S. Customs and Border Protection and the Administrator of
the General Services Administration under this section
regarding the acceptance of real or personal property are in
the discretion of the Commissioner and the Administrator and
are not subject to judicial review.
``(f) Rule of Construction.--Except as otherwise provided
in this section, nothing in this section may be construed as
affecting in any manner the responsibilities, duties, or
authorities of U.S. Customs and Border Protection or the
General Services Administration.
``SEC. 483. CURRENT AND PROPOSED AGREEMENTS.
``Nothing in this subtitle or in section 4 of the Cross-
Border Trade Enhancement Act of 2016 may be construed as
affecting--
``(1) any agreement entered into pursuant to section 560 of
division D of the Consolidated and Further Continuing
Appropriations Act, 2013 (Public Law 113-6) or section 559 of
title V of division F of the Consolidated Appropriations Act,
2014 (6 U.S.C. 211 note; Public Law 113-76), as in existence
on the day before the date of the enactment of this subtitle,
and any such agreement shall continue to have full force and
effect on and after such date; or
``(2) a proposal accepted for consideration by U.S. Customs
and Border Protection pursuant to such section 559, as in
existence on the day before such date of enactment.
``SEC. 484. DEFINITIONS.
``In this subtitle:
``(1) Donor.--The term `donor' means any entity that is
proposing to make a donation under this Act.
``(2) Entity.--The term `entity' means any--
``(A) person;
``(B) partnership, corporation, trust, estate, cooperative,
association, or any other organized group of persons;
``(C) Federal, State or local government (including any
subdivision, agency or instrumentality thereof); or
``(D) any other private or governmental entity.''.
(b) Clerical Amendment.--The table of contents in section
1(b) of the Homeland Security Act of 2002 is amended by
adding at the end of the list of items relating to title IV
the following:
``Subtitle G--U.S. Customs and Border Protection Public Private
Partnerships
``Sec. 481. Fee agreements for certain services at ports of entry.
``Sec. 482. Port of entry donation authority.
``Sec. 483. Current and proposed agreements.
``Sec. 484. Definitions.''.
SEC. 3. MODIFICATION OF EXISTING REPORTS TO CONGRESS.
Section 907(b) of the Trade Facilitation and Trade
Enforcement Act of 2015 (Public Law 114-125) is amended--
(1) in paragraph (3), by striking ``or'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(5) the program for entering into reimbursable fee
agreements with U.S. Customs and Border Protection
established under section 481 of the Homeland Security Act of
2002.''.
SEC. 4. REPEALS.
(a) Contract Authority.--Section 560 of division D of the
Consolidated and Further Continuing Appropriations Act, 2013
(Public Law 113-6) is repealed.
(b) Partnership Pilot Program.--Section 559 of division F
of the Consolidated Appropriations Act, 2014 (6 U.S.C. 211
note; Public Law 113-76) is repealed.
SEC. 5. WAIVER OF POLYGRAPH EXAMINATION REQUIREMENT FOR
CERTAIN LAW ENFORCEMENT APPLICANTS.
Section 3 of the Anti-Border Corruption Act of 2010 (Public
Law 111-376; 6 U.S.C. 221) is amended--
(1) in the matter preceding paragraph (1), by striking
``The Secretary'' and inserting the following:
``(a) In General.--The Secretary'';
(2) in subsection (a)(1), as redesignated, by inserting
``(except as provided in subsection (b))'' after ``Border
Protection''; and
(3) by adding at the end the following:
``(b) Waiver.--The Commissioner of U.S. Customs and Border
Protection may waive the polygraph examination requirement
under subsection (a)(1) for any applicant who--
``(1) is deemed suitable for employment;
``(2) holds a current, active Top Secret/Sensitive
Compartmented Information Clearance;
``(3) has a current Single Scope Background Investigation;
``(4) was not granted any waivers to obtain his or her
clearance; and
``(5) is a veteran (as defined in section 2108 of title 5,
United States Code).''.
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