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S. 461 (114th): Cross-Border Trade Enhancement Act of 2016

The text of the bill below is as of Jul 12, 2016 (Reported by Senate Committee).


II

Calendar No. 559

114th CONGRESS

2d Session

S. 461

IN THE SENATE OF THE UNITED STATES

February 11, 2015

(for himself, Ms. Klobuchar, Mr. Johnson, Mr. Heller, and Mr. Flake) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

July 12, 2016

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

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.

1.

Short title

This Act may be cited as the Cross-Border Trade Enhancement Act of 2015.

2.

Definitions

In this Act:

(1)

Administrator; Administration

The terms Administrator and Administration mean the Administrator of General Services and the General Services Administration, respectively.

(2)

Commissioner

The term Commissioner means the Commissioner of U.S. Customs and Border Protection.

(3)

Person

The term person means—

(A)

an individual; or

(B)

a corporation, partnership, trust, association, or any other public or private entity, including a State or local government.

(4)

Relevant committees of Congress

The term relevant committees of Congress means—

(A)

the Committee on Environment and Public Works 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 Homeland Security of the House of Representatives;

(F)

the Committee on the Judiciary of the House of Representatives; and

(G)

the Committee on Transportation and Infrastructure of the House of Representatives.

3.

Authority to enter into agreements for the provision of certain services at land border ports of entry

(a)

Authority To enter into agreements

(1)

In general

Notwithstanding section 451 of the Tariff Act of 1930 (19 U.S.C. 1451), and consistent with 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) the Commissioner may, during the 10-year period beginning on the date of the enactment of this Act and 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 (2) at a land border port of entry; and

(B)

that person will pay the fee described in subsection (b) to reimburse U.S. Customs and Border Protection for the costs incurred in providing such services.

(2)

Services described

Services described in this paragraph are any services related to customs, agricultural processing, border security, or inspection-related immigration matters provided by an employee or contractor of U.S. Customs and Border Protection at land border ports of entry.

(3)

Limitation

The Commissioner may not modify existing requirements or reimbursement fee agreements in effect as of the date of the enactment of this Act unless the relevant person requests a modification to include services described in this section.

(4)

Savings provision

Nothing in this paragraph may be construed to reduce the responsibilities or duties of U.S. Customs and Border Protection to provide services at land border 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.

(b)

Fee

(1)

In general

A person requesting U.S. Customs and Border Protection services shall pay a fee pursuant to an agreement under subsection (a) in an amount equal to the sum of—

(A)

a proportionate share of the salaries and expenses of the individuals employed by U.S. Customs and Border Protection who provided such services; and

(B)

other costs incurred by U.S. Customs and Border Protection relating to such services, such as temporary placement or permanent relocation of such individuals.

(2)

Oversight of fees

The Commissioner shall develop a process to oversee the activities reimbursed by the fees authorized under paragraph (1) that includes—

(A)

a determination and report on the full cost of providing services, including direct and indirect costs;

(B)

a process for increasing such fees, as necessary;

(C)

the establishment of a monthly remittance schedule to reimburse appropriations; and

(D)

the identification of overtime costs to be reimbursed by such fees.

(3)

Deposit of funds

Amounts collected in fees under paragraph (1)—

(A)

shall be deposited as an offsetting collection;

(B)

shall remain available until expended, without fiscal year limitation; and

(C)

shall directly reimburse each appropriation account for the amount paid out of such account for—

(i)

any expenses incurred for providing U.S. Customs and Border Protection services to the person paying such fee; and

(ii)

any other costs incurred by the U.S. Customs and Border Protection relating to such services.

(4)

Termination

(A)

In general

The Commissioner shall terminate the services provided pursuant to an agreement with a private sector or government entity under subsection (a) upon receiving notice from the Commissioner that such entity failed to pay the fee imposed under paragraph (1) 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 to provide services to the entity described in subparagraph (A), which have not been reimbursed by the entity, will become immediately due and payable.

(C)

Interest

Interest on unpaid fees will accrue from the date of termination based on current Treasury borrowing rates.

(D)

Penalties

Any private sector or government entity that fails to pay any fee incurred under paragraph (1) 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.

(5)

Notification

Not later than 3 days before entering into an agreement under this section, the Commissioner shall notify—

(A)

the relevant committees of Congress; and

(B)

the members of Congress who represent the State or district in which the facility at which services will be provided under the agreement.

4.

Evaluation of alternative financing arrangements for construction and maintenance of infrastructure at land border ports of entry

(a)

Agreements authorized

Consistent with section 559 of the Department of Homeland Security Appropriations Act, 2014 (division F of Public Law 113–76; 6 U.S.C. 211 note), during the 10-year period beginning on the date of the enactment of this Act, the Commissioner and the Administrator may, for purposes of facilitating the construction, alteration, operation, or maintenance of a new or existing facility or other infrastructure at a port of entry under the jurisdiction, custody, and control of the Commissioner or the Administrator—

(1)

enter into cost-sharing or reimbursement agreements with any person; or

(2)

accept donations from any person of—

(A)

real or personal property (including monetary donations); or

(B)

nonpersonal services.

(b)

Allowable uses of agreements

The Commissioner and the Administrator, with respect to an agreement authorized under subsection (a), may—

(1)

use such agreements for activities related to an existing or new port of entry, including expenses related to—

(A)

land acquisition, design, construction, repair, or alternation;

(B)

furniture, fixtures, or equipment;

(C)

the deployment of technology or equipment; or

(D)

operations and maintenance; or

(2)

subject to chapter 33 of title 40, United States Code, transfer such property or services between the Commissioner and the Administrator for activities described in paragraph (1) that are related to a new or existing port of entry under the jurisdiction, custody, and control of the relevant agency.

(c)

Evaluation procedures

(1)

In general

(A)

Requirements for procedures

The Commissioner, in consultation with the Administrator and consistent with section 559 of the Department of Homeland Security Appropriations Act, 2014 (division F of Public Law 113–76; 6 U.S.C. 211 note), shall issue procedures for evaluating a proposal submitted by a person for an agreement authorized under subsection (a).

(B)

Availability

The procedures issued under subparagraph (A) shall be made available to the public through the Department of Homeland Security website.

(2)

Specification

In making a donation under subsection (a)(2), a person may—

(A)

designate the land port of entry facility or facilities that the donation is intended to support; and

(B)

specify the period during which the contributed property or nonpersonal services shall be used.

(3)

Supplemental funding

Any property, including monetary donations and nonpersonal services donated pursuant to subsection (a) may be used in addition to any other funds, including appropriated funds, property, or services made available for the same purpose.

(4)

Return of donation

(A)

Return required

If the Commissioner or the Administrator does not use the property or services donated pursuant to subsection (a) for the specific facility or facilities designated under paragraph (2)(A) or during the period specified under paragraph (2)(B), such donated property or services shall be returned to the person that made the donation.

(B)

Interest prohibited

No interest may be owed on any donation returned to a person pursuant to subparagraph (A).

(5)

Determination and notification

(A)

In general

Not later than 90 days after receiving a proposal pursuant to subsection (a) with respect to the construction or maintenance of a facility or other infrastructure at a land border port of entry, the Commissioner or the Administrator shall—

(i)

make a determination with respect to whether or not to approve the proposal; and

(ii)

notify the person that submitted the proposal of—

(I)

the determination; and

(II)

if the Administrator did not approve the proposal, the reasons for such determination.

(B)

Considerations

In making the determination under subparagraph (A)(i), the Commissioner or the Administrator shall consider—

(i)

the impact of the proposal on reducing wait times at that port of entry and other ports of entry on the same border;

(ii)

the potential of the proposal to increase trade and travel efficiency through added capacity; and

(iii)

the potential of the proposal to enhance the security of the port of entry.

(d)

Annual report and notice to Congress

The Commissioner, in collaboration with the Administrator, shall—

(1)

submit an annual report to the relevant committees of Congress on the agreements entered into under subsection (a); and

(2)

not less than 3 days before entering into an agreement with a person under subsection (a), notify the members of Congress that represent the State or district in which the affected facility is located.

1.

Short title

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

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.

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.

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.

(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.

.

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 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.

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).

.

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.

July 12, 2016

Reported with an amendment