[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 461 Engrossed in Senate (ES)]
<DOC>
114th CONGRESS
2d Session
S. 461
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
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 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 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;
``(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).''.
Passed the Senate November 29, 2016.
Attest:
Secretary.
114th CONGRESS
2d Session
S. 461
_______________________________________________________________________
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.