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  						    Calendar No. 324
114th Congress }                                           { Report
 1st Session   }                SENATE                     { 114-180


                              R E P O R T

                                 OF THE


                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              TO ACCOMPANY

                                H.R. 998



               December 15, 2015.--Ordered to be printed
                        WASHINGTON : 2015                    

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                    Keith B. Ashdown, Staff Director
                  Christopher R. Hixon, Chief Counsel
             David S. Luckey, Director of Homeland Security
       William H.W. McKenna, Chief Counsel for Homeland Security
     Brooke N. Ericson, Deputy Chief Counsel for Homeland Security
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
               Holly A. Idelson, Minority Senior Counsel
     Stephen R. Vina, Minority Chief Counsel for Homeland Security
                     Laura W. Kilbride, Chief Clerk
                                                       Calendar No. 324
114th Congress                                                   Report
 1st Session                                                    114-180



               December 15, 2015.--Ordered to be printed


 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 998]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 998), to 
establish the conditions under which the Secretary of Homeland 
Security may establish preclearance facilities, conduct 
preclearance operations, and provide customs services outside 
the United States, and for other purposes, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.


  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................7
 VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Act, as Reported.............8

                         I. Purpose and Summary

    The purpose of H.R. 998, the Preclearance Authorization Act 
of 2015, is to authorize the operation and expansion of United 
States Customs and Border Protection (CBP) preclearance 
operations abroad. Preclearance operations, under which 
passengers and their luggage undergo screening by CBP officers 
prior to boarding a U.S.-bound flight, have been in place in 
some foreign airports for years and DHS is currently seeking to 
expand the program. This act would establish certain guidelines 
for the program to help capture the benefits of the program 
without jeopardizing security or negatively impacting screening 
at U.S. ports of entry and provide for enhanced congressional 
oversight. First, the act directs the Secretary of the 
Department of Homeland Security (DHS or ``the Department'') to 
certify that new or modified preclearance operations in foreign 
airports do not negatively affect CBP processing times in 
domestic ports of entry. Second, the act requires foreign 
governments with a preclearance agreement with the United 
States to routinely submit information about lost and stolen 
passports of its citizens and nationals to INTERPOL's Stolen 
and Lost Travel Document database or make such information 
available to the United States. Third, the act authorizes CBP 
to enter into cost-sharing agreements to cover operational 
costs, preparing the agency for current and future processing 
and security screening demands.

              II. Background and the Need for Legislation

    Under Federal law, CBP has primary responsibility for 
determining a traveler's admissibility into the United 
States.\1\ To intercept potentially inadmissible travelers 
before they enter the United States and facilitate processing 
for all passengers, the United States operates a number of 
preclearance facilities at airports in foreign countries. 
According to DHS, ``[p]reclearance is the process by which CBP 
officers stationed abroad screen and make admissibility 
decisions about passengers and their accompanying goods or 
baggage heading to the U.S. before they leave a foreign 
port.''\2\ By deploying over 600 customs, immigration, and 
agriculture specialists to foreign airports, CBP is able to 
conduct interviews to determine admissibility, capture 
biometric information for vetting purposes, and thoroughly 
inspect passengers to prevent terrorists and criminals from 
boarding planes to the United States.\3\ Once a traveler 
arrives in the United States, they can proceed directly to 
their destination or connecting flight without further 
    \1\U.S. Customs and Border Protection, At Ports of Entry, http://
    \2\U.S. Customs and Border Protection, Preclearance Locations,
    \3\U.S. Customs and Border Protection, Current Preclearance 
Operations: Fiscal Year 2015 Report to Congress 2 (2015), [hereinafter 
Current Preclearance Operations].
    Preclearance facilities are established by a formal 
agreement between the United States and the host country. CBP 
currently covers the staffing and operational costs of the 
program, with the exception of the preclearance facility at Abu 
Dhabi airport. For the Abu Dhabi preclearance program, the host 
facility pays most of the operational costs as well.
    DHS asserts that by intercepting 10,624 inadmissible 
individuals at preclearance locations during F.Y. 2014, CBP 
saved taxpayers approximately $26.7 million in detention and 
processing costs.\4\ The program also has value in deterring 
smugglers and prospective terrorists by requiring advanced 
security screening abroad. For example, the attempted terrorist 
attack on Northwest Airlines Flight 253 from Amsterdam to 
Detroit on December 25, 2009 and similar incidents, demonstrate 
that terrorists have sought to carry out attacks on U.S.-bound 
aircraft before arrival in the United States. In addition, 
preclearance can intercept dangerous pests that represent a 
significant threat to the American economy.\5\
    \5\Current Preclearance Operations, supra note 3, at 5.
    Preclearance also has economic benefits. Preclearance 
operations expedite passenger processing at United States 
airports by reducing the number of passengers that must be 
screened once a U.S.-bound flight lands. This not only saves 
passengers' time, but can be more efficient for CBP because it 
takes advantage of staggered arrival times at foreign airports 
rather than having to screen an entire planeload of passengers 
at once upon arrival.

History & Future of the Preclearance Program

    CBP established its first preclearance operation in 
Toronto, Canada in 1952.\6\ Currently, CBP conducts 
preclearance inspections at 15 different airports in Aruba, 
Bermuda, the Bahamas, Canada, Ireland and, most recently, in 
the United Arab Emirates (UAE).\7\ In F.Y. 2014, CBP precleared 
15.3 percent of all travelers flying on commercial airlines to 
the United States.\8\ CBP plans to expand preclearance to reach 
33 percent of all passengers traveling to the United States by 
    \6\Id. at 2.
    \7\U.S. Customs and Border Protection, Preclearance Locations, 
(last visited Dec. 1, 2015).
    \8\Current Preclearance Operations, supra note 3, at 2.
    \9\Id. at 6.
    On May 29, 2015, DHS Secretary Johnson announced the United 
States' intention ``to enter into negotiations to expand air 
preclearance options to ten new foreign airports, located in 
nine separate countries: Belgium, the Dominican Republic, 
Japan, the Netherlands, Norway, Spain, Sweden, Turkey, and the 
United Kingdom.''\10\ CBP coordinated with the Transportation 
Security Administration (TSA) and the State Department to 
identify these new airports ``and prioritized them based on the 
greatest potential to support security and travel 
facilitation.''\11\ Last year, approximately 20 million 
passengers traveled to the United States from these 10 
    \10\Press Release, supra note 3. The 10 airports are: Brussels 
Airport, Belgium; Punta Cana Airport, Dominican Republic; Narita 
International Airport, Japan; Amsterdam Airport Schipol, Netherlands; 
Oslo Airport, Norway; Madrid-Barajas Airport, Spain; Stockholm Arlanda 
Airport, Sweden; Istanbul Ataturk Airport, Turkey; London Heathrow 
Airport, Manchester Airport, UK. Id.

Concerns Regarding the Preclearance Program

    DHS maintains that preclearance operations help enhance 
national security by extending the United States' virtual 
border to the last point of departure.\13\ However, to obtain 
some of the security benefits, foreign airports have to 
implement sound passenger security screening comparable to what 
TSA officers provide at domestic U.S. airports. That has not 
always been the case. In 2011, for example, the Government 
Accountability Office (GAO) reported that TSA identified 
serious security vulnerabilities at a number of foreign 
airports, particularly in access control and passenger and 
baggage screening.\14\ While DHS and GAO have not publicly 
stated whether any of the airports identified in the report are 
currently or slated to become preclearance airports, it is 
clear that serious security vulnerabilities exist at some 
airports abroad and those must be fixed if we are to rely on 
their screening at those airports in lieu of domestic 
    \13\Current Preclearance Operations, supra note 3, at 5-6.
    \14\Gov't Accountability Office, GAO-12-163, Aviation Security: TSA 
has Taken Steps to Enhance Its Foreign Airport Assessments, but 
Opportunities Exist to Strengthen the Program passim (2011), available 
    In a more recent example, several Members of Congress 
expressed concern in 2013 with DHS's decision to conduct 
preclearance operations at Abu Dhabi airport in the United Arab 
Emirates.\15\ CBP commenced operations in January 2014 without 
first having the TSA Administrator certify that the airport had 
United States-equivalent security screening procedures in place 
or addressing the competitive impact on United States carriers, 
as CBP selected an airport where U.S. carriers had no 
    \15\See The Abu Dhabi Pre-Clearance Facility: Implications for U.S. 
Businesses and National Security: Hearing Before the House SubComm. on 
Terrorism, Nonproliferation, and Trade of the Comm. on Foreign Affairs, 
113th Cong (2013); see also Seghetti, supra note 5 at 11-12 (2015).
    \16\See id. 
    This legislation seeks to ensure adequate security measures 
are in place, and also requires advance congressional 
notification of preclearance plans and negotiations to ensure 
that any security or economic concerns are identified and 

Proposed Legislation

    The Preclearance Authorization Act of 2015 would authorize 
and expedite expansion of the preclearance program while 
strengthening Congressional oversight. DHS Secretary Johnson 
recently explained, and the Committee agrees, that authorizing 
the program is an important step Congress can take to 
strengthen homeland security after the deadly Paris attacks in 
November 2015.\17\ While there is strong support to expand 
preclearance operations to enhance national security and meet 
increasing immigration and customs processing demands, the 
Secretary's intent to expand the program also makes it that 
much more important to conduct proper oversight to ensure that 
security checks are not neglected. This act would do both--
authorize the program while strengthening Congressional 
oversight of preclearance agreements.
    \17\Press Release, Statement by Secretary Jeh C. Johnson on the 
Safety and Security of the Homeland, and How Congress Can Help, U.S. 
Dep't of Homeland Security (Nov. 23, 2015), available at https://
    This act ensures that CBP's preclearance expansion process 
is transparent and holds DHS accountable by guaranteeing that 
security screening and other domestic concerns are duly taken 
into account as airports are added to the program. This 
legislation also assists CBP in meeting its inspection 
responsibilities under today's tough budgetary environment by 
authorizing cost-sharing agreements. Specifically, the act 
grants CBP the authority to enter into cost-sharing agreements 
with foreign airports to cover 85 percent of the costs 
associated with immigration and agriculture-related 
inspections. In addition, the act allows CBP to receive advance 
payment to cover initial costs associated with establishing 
preclearance operations. Preclearance operations established 
before 2012 are not affected by this provision unless the 
airports modify their agreements with CBP.

                        III. Legislative History

    Representative Patrick Meehan, along with Representatives 
Ryan Costello, Leonard Lance, Michael McCaul, Candice Miller, 
and Mike Rogers, introduced H.R. 998 on February 13, 2015, 
which was referred to the House Committee on Homeland Security 
and House Committee on Ways and Means. The House Committee on 
Homeland Security considered H.R. 998 at a business meeting on 
July 22, 2015. On the same day, the House Committee on Ways and 
Means discharged the bill. The bill passed the House by voice 
vote and under suspension of the rules on July 27, 2015.
    The act was received in the Senate and referred to the 
Committee on Homeland Security and Governmental Affairs on July 
28, 2015. The Committee considered H.R. 998 at a business 
meeting on October 7, 2015.
    Chairman Ron Johnson offered one amendment in the nature of 
a substitute, which decreased the length of the notification 
and certification requirements, enhanced security oversight by 
TSA, amended the required implementation plan, and added cost-
sharing agreements with relevant airport authorities. The 
Committee adopted the amendment as modified and ordered the 
bill, as amended, reported favorably, both by voice vote. 
Senators present for both the vote on the amendment and the 
vote on the bill were: Johnson, Portman, Lankford, Enzi, Ernst, 
Sasse, Carper, McCaskill, Baldwin, Heitkamp, and Booker. 
Consistent with the Committee's order on technical and 
conforming changes at the meeting, the Committee reports the 
bill with a technical amendment by mutual agreement of the full 
Committee majority and minority staff.

        IV. Section-by-Section Analysis of the Act, As Reported

Section 1. Short title

    This section provides the act's short title, the 
``Preclearance Authorization Act of 2015.''

Section 2. Definition

    This section defines ``appropriate Congressional 
committees,'' ``CBP,'' and ``Secretary.''

Section 3. Establishment of Preclearance Operations

    This section authorizes CBP to establish preclearance 
operations abroad for the purposes of preventing terrorism, 
preventing admission of inadmissible persons, ensuring 
merchandise to be imported to the United States complies with 
domestic laws, and expediting traveler processing. Further, the 
section conditions the commencement of preclearance operations 
at a foreign airport on TSA having certified that the passenger 
screening at the airport is equivalent to passenger screening 
in the United States.

Section 4. Notification and Certification to Congress

    To improve Congressional oversight of preclearance 
operations, this section adds triggers for new Congressional 
notifications and associated reporting requirements.
    Subsection (a) requires that the DHS Secretary provide 
appropriate Congressional committees with a copy of a 
preclearance agreement not later than 60 days before the 
agreement enters into force. Also by this deadline, the 
Secretary must provide appropriate Congressional committees 
with: assessments on the impact the preclearance operations 
will have on legitimate trade and travel and on CBP staffing at 
domestic ports of entry and information on anticipated homeland 
security benefits, potential security vulnerabilities and 
mitigation plans, a CBP staffing model and plans to fill such 
positions, and anticipated costs over five fiscal years.
    Subsection (b) requires that--not later than 45 days before 
a preclearance agreement with a foreign government enters into 
force--the DHS Secretary provide appropriate Congressional 
committees with: an estimated date CBP intends to establish 
preclearance operations; anticipated funding sources; a 
homeland security threat assessment for the foreign country; 
potential economic, competitive, and job impacts on United 
States air carriers; information sharing mechanisms to prevent 
terrorist and criminal travel; and other relevant factors.
    Subsection (c) requires that--not later than 60 days before 
a preclearance agreement with a foreign government enters into 
force--the DHS Secretary certify to appropriate Congressional 
committees that: preclearance operations will provide homeland 
security benefits to the United States; at least one United 
States passenger carrier has access to the preclearance 
operations; a United States passenger carrier will have 
comparable access to non-United States passenger carriers 
operating at the same airport; commencing preclearance 
operations will not increase CBP processing times at domestic 
ports of entry; and CBP consulted with appropriate aviation 
industry stakeholders. The subsection also requires the 
Secretary to submit a report detailing the basis for the 
certifications listed above, which may be submitted in 
classified form, if appropriate.
    Subsection (d) requires the DHS Secretary to notify 
appropriate Congressional Committees at least 30 days before a 
substantially amended preclearance agreement with a foreign 
government enters into force.
    Subsection (e) requires that the Commissioner of CBP report 
quarterly to appropriate Congressional committees on: the 
number and posts of CBP officers from domestic ports of entry 
assigned to serve in an overseas preclearance location and the 
number of CBP officers from all other posts who were reassigned 
to fill in for those sent overseas. The subsection also 
requires the Commissioner to submit to appropriate 
Congressional committees an implementation plan to address any 
increased CBP processing times at domestic ports of entry that 
result from relocating CBP officers from those ports of entry 
to overseas preclearance locations. If the Commissioner fails 
to submit the implementation plan within 60 days, CBP is 
prohibited from commencing additional preclearance operations 
until the plan is submitted.

Section 5. Protocols

    This section amends 49 U.S.C. 44901(d)(4) to require that 
TSA personnel rescreen passengers and their property arriving 
from foreign airports with preclearance operations if the 
airport has not maintained security standards and protocols 
comparable to those of the United States. The effect of this 
condition is to ensure that participating foreign airports meet 
United States aviation screening standards throughout the 
duration of the preclearance agreement.

Section 6. Lost and Stolen Passports

    This section prohibits the DHS Secretary from entering into 
a preclearance agreement with a foreign government unless the 
Secretary certifies that the foreign government routinely 
notifies INTERPOL or the United States when its citizens' and 
nationals' passports are reported lost or stolen.

Section 7. Recovery of Initial U.S. Customs and Border Protections 
        Preclearance Operations Costs

    This section authorizes CBP to enter into a cost sharing 
agreement with an airport authority in a foreign country at 
which preclearance operations are in place or planned. The 
section allows CBP to collect payments, including advance 
payments to cover initial costs, apply collected funds to 
offset CBP costs until expended, and return unused funds to the 
relevant airport authority.

Section 8. Collection and Disposition of Funds Collected For 
        Immigration Inspection Services and Preclearance Activities

    This section conforms section 286(i) of the Immigration and 
Nationality Act and section 10412(b) of the Farm Security and 
Rural Investment Act of 2002 to reflect accounting changes 
established in Section 7.

Section 9. Application to New and Existing Preclearance Operations

    This section provides that most provisions of the act apply 
only to the establishment of new preclearance operations in a 
country that does not currently have one. Sections 4(d), 5, 7, 
and 8 apply to both current and future preclearance operations.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this act and determined 
that the act will have no regulatory impact within the meaning 
of the rules. The act contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA) and would impose no costs on state, local, or tribal 

             VI. Congressional Budget Office Cost Estimate

                                                  December 8, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 998, the 
Preclearance Authorization Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
                                                        Keith Hall.

H.R. 998--Preclearance Authorization Act of 2015

    H.R. 998 would authorize Customs and Border Protection 
(CBP) in the Department of Homeland Security to establish 
preclearance (inspection) stations in foreign countries. CBP 
currently operates preclearance facilities in about 15 
locations, mostly in Canada. The act would require the agency 
to notify the Congress before establishing preclearance 
stations in countries that currently have none. H.R. 998 also 
would authorize CBP to enter into cost sharing agreements with 
airport authorities in foreign countries to defray certain 
costs related to operating preclearance stations.
    CBP anticipates opening new preclearance stations over the 
next several years and can do so under current law. The 
collection and subsequent spending of any amounts related to 
cost sharing agreements would be subject to future 
appropriation acts. Thus, CBO estimates that implementing H.R. 
998 would have no significant net effect on CBP spending.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply. 
CBO estimates that enacting H.R. 998 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2026.
    H.R. 998 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
    On July 13, 2015, CBO transmitted a cost estimate for H.R. 
998 as ordered reported by the House Committee on Homeland 
Security on June 25, 2015. The two versions of the act are 
similar and CBO's estimates of the budgetary effects are the 
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
H.R. 998 as reported are shown as follows (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):


           *       *       *       *       *       *       *

                         CHAPTER 449--SECURITY


           *       *       *       *       *       *       *

    (d) Explosives Detection Systems.--
          (1) * * *

           *       *       *       *       *       *       *

          (4) Preclearance airports.--
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) Rescreening requirement.--If the 
                Administrator of the Transportation Security 
                Administration determines that the government 
                of a foreign country has not maintained 
                security standards and protocols comparable to 
                those of the United States at airports at which 
                preclearance operations have been established 
                in accordance with this paragraph, the 
                Administrator shall ensure that Transportation 
                Security Administration personnel rescreen 
                passengers arriving from such airports and 
                their property in the United States before such 
                passengers are permitted into sterile areas of 
                airports in the United States.

           *       *       *       *       *       *       *


           *       *       *       *       *       *       *


           *       *       *       *       *       *       *


SEC. 286.

    (a) * * *

           *       *       *       *       *       *       *

  (i) Reimbursement.--Notwithstanding any other provision of 
law, the Attorney General is authorized to receive 
reimbursement from the owner, operator, or agent of a private 
or commercial aircraft or vessel, or from any airport or 
seaport authority for expenses incurred by the Attorney General 
in providing immigration inspection services which are rendered 
at the request of such person or authority (including the 
salary and expenses of individuals employed by the Attorney 
General to provide such immigration inspection services). [The 
Attorney General's authority to receive such reimbursement 
shall terminate immediately upon the provision for such 
services by appropriation.] Reimbursements under this 
subsection may be collected in advance of the provision of such 
immigration inspection services. Notwithstanding subparagraph 
(h)(1)(B), and only to the extent provided in appropriations 
Acts, any amounts collected under this subsection shall be 
credited as offsetting collections to the currently applicable 
appropriation, account, or fund of U.S. Customs and Border 
Protection, remain available until expended, and be available 
for the purposes for which such appropriation, account, or fund 
is authorized to be used.

           *       *       *       *       *       *       *


           *       *       *       *       *       *       *


           *       *       *       *       *       *       *

Subtitle E--Animal Health Protection

           *       *       *       *       *       *       *


    (a) * * *
    [(b) Funds Collected for Preclearance.--Funds collected for 
preclearance activities shall--]
          [(1) be credited to accounts that may be established 
        by the Secretary for carrying out this section; and]
          [(2) remain available until expended for the 
        preclearance activities, without fiscal year 
    (b) Funds Collected for Preclearance.--Funds collected for 
preclearance activities--
          (1) may be collected in advance of the provision of 
        such activities;
          (2) shall be credited as offsetting collections to 
        the currently applicable appropriation, account, or 
        fund of U.S. Customs and Border Protection;
          (3) shall remain available until expended;
          (4) shall be available for the purposes for which 
        such appropriation, account, or fund is authorized to 
        be used; and
          (5) may be collected and shall be available only to 
        the extent provided in appropriations Acts.

           *       *       *       *       *       *       *