[114th Congress Public Law 279]
[From the U.S. Government Publishing Office]
[[Page 130 STAT. 1413]]
Public Law 114-279
114th Congress
An Act
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. <<NOTE: Dec. 16,
2016 - [H.R. 875]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Cross-Border
Trade Enhancement Act of 2016. 6 USC 101 note.>>
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. <<NOTE: 6 USC 301.>> 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
[[Page 130 STAT. 1414]]
411(e)) pertaining to, or in support of, customs, agricultural
processing, border security, or immigration inspection-related matters
at a 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 services described in
subsection (b).
``(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 than five
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
[[Page 130 STAT. 1415]]
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) <<NOTE: Determination. Reports.>> 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;
[[Page 130 STAT. 1416]]
``(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;
[[Page 130 STAT. 1417]]
``(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) <<NOTE: Notification.>> 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. <<NOTE: 6 USC 301a.>> PORT OF ENTRY DONATION
AUTHORITY.
``(a) Personal Property Donation Authority.--
``(1) <<NOTE: Consultation.>> 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 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
[[Page 130 STAT. 1418]]
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 4 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) <<NOTE: Consultation.>> 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,
[[Page 130 STAT. 1419]]
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) <<NOTE: Consultation. Criteria.>> 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) <<NOTE: Public information.>> 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) <<NOTE: Deadline.>> 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
[[Page 130 STAT. 1420]]
``(bb) allow the entity to
resubmit the proposal with
additional information and
material described in item (aa)
to complete the proposal.
``(ii) <<NOTE: Deadline.>> 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;
[[Page 130 STAT. 1421]]
``(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) <<NOTE: Evaluation.>> 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;
``(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. <<NOTE: 6 USC 301b.>> 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. <<NOTE: 6 USC 301c.>> 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:
[[Page 130 STAT. 1422]]
``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) <<NOTE: 19 USC 4451.>> 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) <<NOTE: 127 Stat. 378.>> 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
[[Page 130 STAT. 1423]]
``(5) is a veteran (as defined in section 2108 of title 5,
United States Code).''.
Approved December 16, 2016.
LEGISLATIVE HISTORY--H.R. 875 (S. 461):
---------------------------------------------------------------------------
SENATE REPORTS: No. 114-303 (Comm. on Homeland Security and Governmental
Affairs) accompanying S. 461.
CONGRESSIONAL RECORD, Vol. 162 (2016):
Dec. 6, considered and passed House.
Dec. 9, considered and passed Senate.
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