[Congressional Record Volume 162, Number 170 (Tuesday, November 29, 2016)]
[Senate]
[Pages S6573-S6575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               CROSS-BORDER TRADE ENHANCEMENT ACT OF 2015

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 559, S. 461.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The senior assistant legislative clerk read as follows:

       A 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.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Homeland Security and 
Governmental Affairs, with an amendment to strike all after the 
enacting clause and insert in lieu thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Cross-Border Trade 
     Enhancement Act of 2016''.

     SEC. 2. REPEAL AND TRANSITION PROVISION.

       (a) Repeal.--Subject to subsections (b) and (c), section 
     560 of the Department of Homeland Security Appropriations 
     Act, 2013 (division D of Public Law 113-6; 127 Stat. 378) and 
     section 559 of the Department of Homeland Security 
     Appropriations Act, 2014 (division F of Public Law 113-76; 6 
     U.S.C. 211 note) are repealed.
       (b) Agreements in Effect.--Notwithstanding subsection (a), 
     nothing in this Act may be construed as affecting in any 
     manner an agreement entered into pursuant to section 560 of 
     the Department of Homeland Security Appropriations Act, 2013 
     (division D of Public Law 113-6; 127 Stat. 378) or section 
     559 of the Department of Homeland Security Appropriations 
     Act, 2014 (division F of Public Law 113-76; 6 U.S.C. 211 
     note) that is in effect on the day before the date of the 
     enactment of this Act, and any such agreement shall continue 
     to have full force and effect on and after such date.
       (c) Proposed Agreements.--Notwithstanding subsection (a), 
     nothing in this Act may be construed as affecting in any 
     manner a proposal accepted for consideration and further 
     development by U.S. Customs and Border Protection or the 
     General Services Administration pursuant to section 559 of 
     the Department of Homeland Security Appropriations Act, 2014 
     (division F of Public Law 113-76; 6 U.S.C. 211 note) that was 
     accepted prior to the date of the enactment of this Act.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Administration.--The term ``Administration'' mean the 
     General Services Administration.
       (2) Administrator.--The term ``Administrator'' mean the 
     Administrator of the Administration.
       (3) Commissioner.--The term ``Commissioner'' means the 
     Commissioner of U.S. Customs and Border Protection.
       (4) Donation agreement.--The term ``donation agreement'' 
     means an agreement made under section 5(a).
       (5) Fee agreement.--The term ``fee agreement'' means an 
     agreement made by the Commissioner under section 4(a)(1).
       (6) Person.--The term ``person'' means--
       (A) an individual;
       (B) a corporation, partnership, trust, estate, association, 
     or any other private or public entity;
       (C) a Federal, State, or local government;
       (D) any subdivision, agency, or instrumentality of a 
     Federal, State, or local government; or
       (E) any other governmental entity.
       (7) Relevant committees of congress.--The term ``relevant 
     committees of Congress'' means--
       (A) the Committee on Appropriations, the Committee on 
     Environment and Public Works, the Committee on Finance, the 
     Committee on Homeland Security and Governmental Affairs, and 
     the Committee on the Judiciary of the Senate; and
       (B) the Committee on Appropriations, the Committee on 
     Homeland Security, the Committee on the Judiciary, and the 
     Committee on Transportation and Infrastructure of the House 
     of Representatives.

     SEC. 4. AUTHORITY TO ENTER INTO FEE AGREEMENTS FOR THE 
                   PROVISION OF CERTAIN SERVICES OF U.S. CUSTOMS 
                   AND BORDER PROTECTION.

       (a) Fee Agreements.--
       (1) Authority for fee agreements.--Notwithstanding section 
     13031(e) of the Consolidated Omnibus Budget Reconciliation 
     Act of 1985 (19 U.S.C. 58c(e)) and section 451 of the Tariff 
     Act of 1930 (19 U.S.C. 1451), the Commissioner may, upon the 
     request of any person, enter into an agreement with that 
     person under which--
       (A) U.S. Customs and Border Protection will provide the 
     services described in paragraph (4) at a port of entry or any 
     other facility where U.S. Customs and Border Protection 
     provides or will provide services;
       (B) such person will remit a fee imposed under subsection 
     (b) to U.S. Customs and Border Protection in an amount equal 
     to the full costs incurred or that will be incurred in 
     providing such services; and
       (C) any additional facilities at which U.S. Customs and 
     Border Protection services are performed or deemed necessary 
     for the provision of services under an agreement entered into 
     under this section shall be provided, maintained, and 
     equipped by such person, without additional cost to the 
     Federal Government, in accordance with U.S. Customs and 
     Border Protection specifications.
       (2) Criteria.--The Commissioner shall establish criteria 
     for entering into a partnership under paragraph (1) that 
     include the following:
       (A) Selection and evaluation of potential partners.
       (B) Identification and documentation of roles and 
     responsibilities between U.S. Customs and Border Protection, 
     the Administration, and private and government partners.
       (C) Identification, allocation, and management of explicit 
     and implicit risks of partnering between U.S. Customs and 
     Border Protection, the Administration, and private and 
     government partners.
       (D) Decision-making and dispute resolution processes in 
     partnering arrangements.
       (E) Criteria and processes for U.S. Customs and Border 
     Protection to terminate agreements if private or government 
     partners are not meeting the terms of such a partnership, 
     including the security standards established by U.S. Customs 
     and Border Protection.
       (3) Publication.--The Commissioner shall make publicly 
     available the criteria established under paragraph (2), and 
     shall notify the relevant committees of Congress not less 
     than 15 days prior to the publication of the criteria and any 
     subsequent changes to such criteria.
       (4) Services described.--Services described in this 
     paragraph are any services related to, or in support of, 
     customs, agricultural processing, border security, or 
     inspection-related immigration matters provided by an 
     employee or contractor of U.S. Customs and Border Protection 
     at ports of entry or any other facility where U.S. Customs 
     and Border Protection provides or will provide services.
       (5) Modification of prior agreements.--The Commissioner, at 
     the request of a person 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 Act, may modify such agreement to implement any 
     provisions of this Act.
       (6) Limitation.--The Commissioner may not enter into a 
     reimbursable fee agreement under this subsection if such 
     agreement would unduly and permanently impact services funded 
     in this Act or any appropriations Act, or provided from any 
     account in the Treasury of the United States derived by the 
     collection of fees.
       (7) Numerical limitations.--Except as provided in 
     paragraphs (8) and (9), there shall be no limit to the number 
     of fee agreements that may be entered into by the 
     Commissioner.
       (8) Authority for numerical limitations.--
       (A) Resource availability.--If the Commissioner finds that 
     resource or allocation constraints would prevent U.S. Customs 
     and Border Protection from fulfilling, in whole or in part, 
     requests for services under the terms of existing or proposed 
     fee agreements, the Commissioner shall impose annual limits 
     on the number of new fee agreements.

[[Page S6574]]

       (B) Annual review.--If the Commissioner limits the number 
     of new fee agreements under this paragraph, the Commissioner 
     shall annually evaluate and reassess such limits and publish 
     the results of such evaluation and affirm any such limits 
     that shall remain in effect in a publicly available format.
       (9) Air ports of entry.--
       (A) Certain costs.--A fee agreement for U.S. Customs and 
     Border Protection services at an air port of entry may only 
     provide for the reimbursement of--
       (i) salaries and expenses of not more than 5 full-time 
     equivalent U.S. Customs and Border Protection officers;
       (ii) costs incurred by U.S. Customs and Border Protection 
     for the payment of overtime to employee;
       (iii) the salaries and expenses of employees of U.S. 
     Customs and Border Protection (other than officers specified 
     in clause (i)) to support U.S. customs and Border Protection 
     officers in performing law enforcement functions at air ports 
     of entry, including primary and secondary processing of 
     passengers; and
       (iv) other costs incurred by U.S. Customs and Border 
     Protection relating to services described in paragraph (4), 
     such as temporary placement or permanent relocation of such 
     employees, including incentive pay for relocation where 
     appropriate.
       (B) Preclearance.--The authority in the section may not be 
     used to enter into new preclearance agreements or initiate 
     the provision of U.S. Customs and Border Protection services 
     outside of the United States.
       (C) Permanent relocation.--Any fee agreement under this Act 
     to provide for the reimbursement of the permanent relocation 
     of an employee of the U.S. Customs and Border Protection 
     shall certify that the terms of the agreement--
       (i) cannot otherwise be sufficiently met by the person and 
     the U.S. Customs and Border Protection;
       (ii) would not unduly impact U.S. Customs and Border 
     Protection services at the port of entry from which the 
     relocation of the employee is proposed;
       (iii) would be consistent with other applicable laws and 
     regulations regarding the relocation of employees of the U.S. 
     Customs and Border Protection; and
       (iv) all costs of the relocation have been approved by the 
     person.
       (10) Port of entry size consideration.--The Commissioner 
     shall--
       (A) ensure that each fee agreement proposal is given equal 
     consideration regardless of the size of the port of entry; 
     and
       (B) report to the relevant committees of Congress on the 
     number of fee agreement proposals that the Commissioner did 
     not enter into due to numerical limits on the number of fee 
     agreements, if the Commissioner adopts such limits.
       (11) Denied application.--If the Commissioner denies a 
     proposal for a fee agreement, the Commission shall provide 
     the person who submitted the proposal the reason for the 
     denial, unless the reason for the denial involves a law 
     enforcement matter or national security interest.
       (12) Construction.--Nothing in this section may be 
     construed--
       (A) to require a person entering into a fee agreement to 
     cover costs that are otherwise the responsibility of the U.S. 
     Customs and Border Protection or any other agency of the 
     Federal Government and are not incurred, or expected to be 
     incurred, to cover services specifically covered by an 
     agreement entered into under authorities provided by this 
     Act; or
       (B) to unduly and permanently reduce the responsibilities 
     or duties of U.S. Customs and Border Protection to provide 
     services at ports of entry that have been authorized or 
     mandated by law and are funded in any appropriation Act or 
     from any accounts in the Treasury of the United States 
     derived by the collection of fees.
       (13) Judicial review.--Decisions of the Commissioner under 
     this subsection are in the discretion of the Commissioner and 
     not subject to judicial review.
       (b) Fee.--
       (1) In general.--A person who enters into a fee agreement 
     shall pay a fee pursuant to such agreement in an amount equal 
     to the full cost of U.S. Customs and Border Protection--
       (A) of the salaries and expenses of individuals employed or 
     contracted by U.S. Customs and Border Protection to provide 
     such services; and
       (B) of other costs incurred by U.S. Customs and Border 
     Protection related to providing such services, such as 
     temporary placement or permanent relocation of employees, 
     including incentive pay for relocation where appropriate.
       (2) Advance payment.--The Commissioner, with approval from 
     a person requesting services of U.S. Customs and Border 
     Protection services pursuant to a fee agreement, may accept 
     the fee for services prior to providing such services.
       (3) Oversight of fees.--The Commissioner shall develop a 
     process to oversee the activities for which fees are charged 
     pursuant to a fee agreement that includes the following:
       (A) A determination and report on the full cost of 
     providing services, including direct and indirect costs, as 
     well as a process, through consultation with affected parties 
     and other interested stakeholders, for increasing such fees 
     as necessary.
       (B) The establishment of a periodic remittance schedule to 
     replenish appropriations, accounts or funds, as necessary.
       (C) The identification of costs paid by such fees.
       (4) Deposit of funds.--Amounts collected pursuant to a fee 
     agreement shall--
       (A) be deposited as an offsetting collection;
       (B) remain available until expended, without fiscal year 
     limitation; and
       (C) be credited to the applicable appropriation, account, 
     or fund for the amount paid out of that appropriation, 
     account, or fund for--
       (i) any expenses incurred or to be incurred by U.S. Customs 
     and Border Protection in providing such services; and
       (ii) any other costs incurred by U.S. Customs and Border 
     Protection relating to such services.
       (5) Termination by the commissioner.--
       (A) In general.--The Commissioner shall terminate the 
     services provided pursuant to a fee agreement with a person 
     that, after receiving notice from the Commissioner that a fee 
     imposed under the fee agreement is due, fails to pay such fee 
     in a timely manner.
       (B) Effect of termination.--At the time services are 
     terminated pursuant to subparagraph (A), all costs incurred 
     by U.S. Customs and Border Protection which have not been 
     paid, will become immediately due and payable.
       (C) Interest.--Interest on unpaid fees will accrue based on 
     the quarterly rate(s) established under sections 6621 and 
     6622 of the Internal Revenue Code of 1986.
       (D) Penalties.--Any person that fails to pay any fee 
     incurred under a fee agreement in a timely manner, after 
     notice and demand for payment, shall be liable for a penalty 
     or liquidated damage equal to 2 times the amount of such fee.
       (E) Amount collected.--Any amount collected pursuant to a 
     fee agreement shall be deposited into the account specified 
     under paragraph (4) and shall be available as described 
     therein.
       (F) Return of unused funds.--The Commissioner shall return 
     any unused funds collected under a fee agreement that is 
     terminated for any reason, or in the event that the terms of 
     such 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 unused funds.
       (6) Termination by the sponsor.--Any person 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 Act, or under the provisions of 
     this Act, may request that such agreement make provision for 
     termination at the request of such person upon advance 
     notice, the length and terms of which shall be negotiated 
     between such person and U.S. Customs and Border Protection.
       (c) Annual Report and Notice to Congress.--The Commissioner 
     shall--
       (1) submit to the relevant committees of Congress an annual 
     report that identifies each fee agreement made during the 
     previous year; and
       (2) not less than 15 days before entering into a fee 
     agreement, notify the members of Congress that represent the 
     State or district in which the affected port or facility is 
     located.
       (d) 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 for the provision of U.S. Customs and Border 
     Protection services established by the Cross-Border Trade 
     Enhancement Act of 2016.''.

     SEC. 5. AUTHORITY TO ENTER INTO AGREEMENTS TO ACCEPT 
                   DONATIONS FOR PORTS OF ENTRY.

       (a) Agreements Authorized.--
       (1) Commissioner.--The Commissioner, in collaboration with 
     the Administrator as provided under subsection (e), may enter 
     into an agreement with any person to accept a donation of 
     real or personal property, including monetary donations, or 
     nonpersonal services, for activities in subsection (b) at a 
     new or existing land, sea, or air port of entry, or any 
     facility or other infrastructure at a location where U.S. 
     Customs and Border Protection performs or will be performing 
     services within the United States.
       (2) Administrator.--Where the Administrator has custody or 
     control of a new or existing land port of entry, facility, or 
     other infrastructure at a location where U.S. Customs and 
     Border Protection performs or will be performing inspection 
     services, the Administrator, in collaboration with the 
     Commissioner, may enter into an agreement with any person to 
     accept a donation of real or personal property, including 
     monetary donations, or nonpersonal services, at that location 
     for activities set forth in subsection (b).
       (b) Use.--A donation made under a donation agreement may be 
     used for activities related to construction, alteration, 
     operation or maintenance, including expenses related to--
       (1) land acquisition, design, construction, repair, and 
     alteration;
       (2) furniture, fixtures, equipment, and technology, 
     including installation and the deployment thereof; and
       (3) operation and maintenance of the facility, 
     infrastructure, equipment, and technology.
       (c) Limitation on Monetary Donations.--Any monetary 
     donation accepted pursuant to a donation agreement may not be 
     used to pay the salaries of employees of U.S. Customs and 
     Border Protection who perform inspection services.
       (d) Term of Donation Agreement.--The term of a donation 
     agreement may be as long as is required to meet the terms of 
     the agreement.
       (e) Role of Administrator.--The Administrator's role, 
     involvement, and authority under this section is limited with 
     respect to donations made at new or existing land ports of 
     entry, facilities, or other infrastructure owned or leased by 
     the Administration.
       (f) Evaluation Procedures.--
       (1) Requirements for procedures.--Not later than 180 days 
     after the date of enactment, the Commissioner, in 
     consultation with the Administrator as appropriate, shall 
     issue procedures for evaluating proposals for donation

[[Page S6575]]

     agreements on a year-round basis and otherwise consistent 
     with the requirements of this section.
       (2) Availability.--The procedures issued under paragraph 
     (1) shall be made available to the public.
       (3) Cost-sharing arrangements.--In issuing the procedures 
     under paragraph (1), the Commissioner, in consultation with 
     the Administrator, shall evaluate the use of authorities 
     provided under this section to enter into cost-sharing or 
     reimbursement agreements with eligible persons and determine 
     whether such agreements may improve facility conditions or 
     inspection services at new or existing land, sea, or air 
     ports of entry.
       (g) Determination and Notification.--
       (1) In general.--Not later than 60 days after receiving a 
     proposal for a donation agreement, the Commissioner, and 
     Administrator if applicable, shall notify the person that 
     submitted the proposal as to whether it is complete or 
     incomplete.
       (2) Incomplete proposals.--If the Commissioner, and 
     Administrator if applicable, determines that a proposal is 
     incomplete, the person that submitted the proposal shall be 
     notified and provided with--
       (A) a detailed description of all specific information or 
     material that is needed to complete review of the proposal; 
     and
       (B) allow the person to resubmit the proposal with 
     additional information and material described under 
     subparagraph (A) to complete the proposal.
       (3) Complete applications.--Not later than 180 days after 
     receiving a completed and final proposal for a donation 
     agreement, the Commissioner, and Administrator if applicable, 
     shall--
       (A) make a determination whether to deny or approve the 
     proposal; and
       (B) notify the person that submitted the proposal of the 
     determination.
       (4) Considerations.--In making the determination under 
     paragraph (3)(A), the Commissioner, and Administrator if 
     applicable, shall consider--
       (A) 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;
       (B) the potential of the proposal to increase trade and 
     travel efficiency through added capacity;
       (C) the potential of the proposal to enhance the security 
     of the port of entry or facility;
       (D) the funding available to complete the intended use of a 
     donation under this section;
       (E) the costs of maintaining and operating such donation;
       (F) whether such donation, if real property, satisfies the 
     requirements of such proposal, or whether additional real 
     property would be required;
       (G) an explanation of how such donation, if real property, 
     was secured;
       (H) the impact of such proposal on staffing requirements; 
     and
       (I) other factors that the Commissioner or Administrator 
     determines to be relevant.
       (h) Supplemental Funding.--Any property, including monetary 
     donations and nonpersonal services, donated pursuant to a 
     donation agreement may be used in addition to any other 
     funds, including appropriated funds, property, or services 
     made available for the same purpose.
       (i) Return of Donation.--If the Commissioner or the 
     Administrator does not use the property or services donated 
     pursuant to a donation agreement, such donated property or 
     services shall be returned to the person that made the 
     donation.
       (j) Interest Prohibited.--No interest may be owed on any 
     donation returned to a person under this subsection.
       (k) Prohibition on Certain Funding.--The Commissioner, in 
     collaboration with the Administrator if applicable, with 
     respect to an agreement authorized under this section, may 
     not obligate or expend amounts in excess of the value of the 
     donations.
       (l) Annual Report and Notice to Congress.--The 
     Commissioner, in collaboration with the Administrator if 
     applicable, shall--
       (1) submit to the relevant committees of Congress an annual 
     report that identifies each donation agreement made during 
     the previous year; and
       (2) not less than 15 days before entering into a donation 
     agreement, notify the members of Congress that represent the 
     State or district in which the affected port or facility is 
     located.
       (m) Construction.--Except as otherwise provided in this 
     section, nothing in this section may be construed--
       (1) as affecting in any manner the responsibilities, 
     duties, or authorities of U.S. Customs and Border Protection 
     or the Administration;
       (2) to create any right or liability of the parties 
     referred to in this section, except as otherwise set forth in 
     any donation acceptance agreement entered into under this 
     section; or
       (3) as affecting any consultation requirement under any 
     other law.

     SEC. 6. 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 such term is defined in section 2108 
     of title 5, United States Code).''.

     SEC. 7. EFFECTIVE PERIOD.

       (a) In General.--Except as provided in subsection (c), this 
     Act and the amendments made by this Act shall be in effect 
     during the 10-year period beginning on the date of the 
     enactment of this Act.
       (b) Agreements in Effect.--Any agreement made pursuant to 
     this Act that is in effect on the date that is 10 years after 
     the date of the enactment of this Act shall continue to have 
     full force and effect on and after such date and remain in 
     effect under the terms of such agreement.
       (c) Permanent Provisions.--Section 2, the amendments made 
     by section 2, and the amendments made by section 6 shall take 
     effect on the date of the enactment of this Act.

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the 
committee-reported substitute amendment be withdrawn; that the Cornyn 
substitute amendment be agreed to; that the bill, as amended, be 
considered read a third time and passed; and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported substitute amendment was withdrawn.
  The amendment (No. 5115) in the nature of a substitute was agreed to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The bill (S. 461), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

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