99 006
107 th Congress
Report
F
E
HOUSE OF REPRESENTATIVES
1st Session
107 320
CUSTOMS BORDER SECURITY ACT OF 2001
December 5, 2001.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
Mr. Thomas, from the Committee on Ways and Means, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3129]
[Including cost estimate of the Congressional Budget Office]
The Committee on Ways and Means, to whom was referred the bill (H.R.
3129) to authorize appropriations for fiscal years 2002 and 2003 for the
United States Customs Service for antiterrorism, drug interdiction, and
other operations, for the Office of the United States Trade
Representative, for the United States International Trade Commission,
and for other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as amended do
pass.
CONTENTS
I. Introduction 13
A. Purpose and Summary
13
B. Background
14
C. Legislative History
15
II.
Explanation of the Bill
17
III.
Votes of the Committee
39
IV.
Budget Effects
41
A. Committee Estimate of Budgetary Effects
41
B. Statement Regarding New Budget Authority and Tax Expenditures
41
C. Cost Estimate Prepared by the Congressional Budget Office
41
V.
Other Matters to be Discussed Under the Rules of the House
45
A. Committee Oversight Findings and Recommendations
45
B. Summary of Findings and Recommendations of the Committee on
Government Reform and Oversight
45
C. Constitutional Authority Statement
45
VI.
Changes in Existing Law Made by the Bill, as Reported
45
VII.
Dissenting Views
56
The amendment is as follows:
Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Customs Border Security Act of 2001''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--UNITED STATES CUSTOMS SERVICE
SUBTITLE A--DRUG ENFORCEMENT AND OTHER NONCOMMERCIAL AND COMMERCIAL
OPERATIONS
Sec. 101. Authorization of appropriations for noncommercial
operations, commercial operations, and air and marine interdiction.
Sec. 102. Antiterrorist and illicit narcotics detection equipment
for the United States-Mexico border, United States-Canada border, and
Florida and the Gulf Coast seaports.
Sec. 103. Compliance with performance plan requirements.
SUBTITLE B--CHILD CYBER-SMUGGLING CENTER OF THE CUSTOMS SERVICE
Sec. 111. Authorization of appropriations for program to prevent
child pornography/child sexual exploitation.
SUBTITLE C--PERSONNEL PROVISIONS
CHAPTER 1--OVERTIME AND PREMIUM PAY OF OFFICERS OF THE CUSTOMS SERVICE
Sec. 121. Correction relating to fiscal year cap.
Sec. 122. Correction relating to overtime pay.
Sec. 123. Correction relating to premium pay.
Sec. 124. Use of savings from payment of premium pay.
Sec. 125. Effective date.
CHAPTER 2--MISCELLANEOUS PROVISIONS
Sec. 131. Additional Customs Service officers for United States
Canada border.
Sec. 132. Study and report relating to personnel practices of the
Customs Service.
Sec. 133. Study and report relating to accounting and auditing
procedures of the Customs Service.
Sec. 134. Establishment and implementation of cost accounting
system; reports.
Sec. 135. Study and report relating to timeliness of prospective
rulings.
Sec. 136. Study and report relating to Customs user fees.
SUBTITLE D--ANTITERRORISM PROVISIONS
Sec. 141. Immunity for United States officials that act in good faith.
Sec. 142. Emergency adjustments to offices, ports of entry, or
staffing of the Customs Service.
Sec. 143. Mandatory advanced electronic information for cargo and
passengers.
Sec. 144. Border search authority for certain contraband in
outbound mail.
Sec. 145. Authorization of appropriations for reestablishment of
Customs operations in New York City.
SUBTITLE E--TEXTILE TRANSSHIPMENT PROVISIONS
Sec. 151. GAO audit of textile transshipment monitoring by Customs
Service.
Sec. 152. Authorization of appropriations for textile
transshipment enforcement operations.
Sec. 153. Implementation of the African Growth and Opportunity Act.
TITLE II--OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
Sec. 201. Authorization of appropriations.
TITLE III--UNITED STATES INTERNATIONAL TRADE COMMISSION
Sec. 301. Authorization of appropriations.
TITLE IV--OTHER TRADE PROVISIONS
Sec. 401. Increase in aggregate value of articles exempt from duty
acquired abroad by United States residents.
Sec. 402. Regulatory audit procedures.
TITLE I--UNITED STATES CUSTOMS SERVICE
Subtitle A--Drug Enforcement and Other Noncommercial and
Commercial Operations
SEC. 101. AUTHORIZATION OF APPROPRIATIONS FOR NONCOMMERCIAL
OPERATIONS, COMMERCIAL OPERATIONS, AND AIR AND MARINE INTERDICTION.
(a) Noncommercial Operations.--Section 301(b)(1) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(b)(1))
is amended--
(1) in subparagraph (A) to read as follows:
``(A) $886,513,000 for fiscal year 2002.''; and
(2) in subparagraph (B) to read as follows:
``(B) $909,471,000 for fiscal year 2003.''.
(b) Commercial Operations.--
(1) In general.--Section 301(b)(2)(A) of the Customs Procedural
Reform and Simplification Act of 1978 (19 U.S.C. 2075(b)(2)(A)) is
amended--
(A) in clause (i) to read as follows:
``(i) $1,603,482,000 for fiscal year 2002.''; and
(B) in clause (ii) to read as follows:
``(ii) $1,645,009,000 for fiscal year 2003.''.
(2) Automated commercial environment computer system.--Of the amount
made available for each of fiscal years 2002 and 2003 under section
301(b)(2)(A) of the Customs Procedural Reform and Simplification Act of
1978 (19 U.S.C. 2075(b)(2)(A)), as amended by paragraph (1),
$308,000,000 shall be available until expended for each such fiscal year
for the development, establishment, and implementation of the Automated
Commercial Environment computer system.
(3) Reports.--Not later than 90 days after the date of the enactment
of this Act, and not later than each subsequent 90-day period, the
Commissioner of Customs shall prepare and submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report demonstrating that the development and
establishment of the Automated Commercial Environment computer system is
being carried out in a cost-effective manner and meets the modernization
requirements of title VI of the North American Free Trade Agreements
Implementation Act.
(c) Air and Marine Interdiction.--Section 301(b)(3) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(b)(3))
is amended--
(1) in subparagraph (A) to read as follows:
``(A) $181,860,000 for fiscal year 2002.''; and
(2) in subparagraph (B) to read as follows:
``(B) $186,570,000 for fiscal year 2003.''.
(d) Submission of Out-Year Budget Projections.--Section 301(a) of the
Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(a)) is amended by adding at the end the following:
``(3) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the Commissioner of Customs shall submit to the Committee on Ways and
Means of the House of Representatives and the Committee on Finance of
the Senate the projected amount of funds for the succeeding fiscal year
that will be necessary for the operations of the Customs Service as
provided for in subsection (b).''.
SEC. 102. ANTITERRORIST AND ILLICIT NARCOTICS DETECTION
EQUIPMENT FOR THE UNITED STATES-MEXICO BORDER, UNITED STATES-CANADA
BORDER, AND FLORIDA AND THE GULF COAST SEAPORTS.
(a) Fiscal Year 2002.--Of the amounts made available for fiscal year
2002 under section 301(b)(1)(A) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(A)), as amended by
section 101(a) of this Act, $90,244,000 shall be available until
expended for acquisition and other expenses associated with
implementation and deployment of antiterrorist and illicit narcotics
detection equipment along the United States-Mexico border, the United
States-Canada border, and Florida and the Gulf Coast seaports, as
follows:
(1) United states-mexico border.--For the United States-Mexico
border, the following:
(A) $6,000,000 for 8 Vehicle and Container Inspection Systems (VACIS).
(B) $11,200,000 for 5 mobile truck x-rays with transmission and
backscatter imaging.
(C) $13,000,000 for the upgrade of 8 fixed-site truck x-rays from
the present energy level of 450,000 electron volts to 1,000,000 electron
volts (1 MeV).
(D) $7,200,000 for 8 1 MeV pallet x-rays.
(E) $1,000,000 for 200 portable contraband detectors (busters) to be
distributed among ports where the current allocations are inadequate.
(F) $600,000 for 50 contraband detection kits to be distributed
among all southwest border ports based on traffic volume.
(G) $500,000 for 25 ultrasonic container inspection units to be
distributed among all ports receiving liquid-filled cargo and to ports
with a hazardous material inspection facility.
(H) $2,450,000 for 7 automated targeting systems.
(I) $360,000 for 30 rapid tire deflator systems to be distributed to
those ports where port runners are a threat.
(J) $480,000 for 20 portable Treasury Enforcement Communications
Systems (TECS) terminals to be moved among ports as needed.
(K) $1,000,000 for 20 remote watch surveillance camera systems at
ports where there are suspicious activities at loading docks, vehicle
queues, secondary inspection lanes, or areas where visual surveillance
or observation is obscured.
(L) $1,254,000 for 57 weigh-in-motion sensors to be distributed
among the ports with the greatest volume of outbound traffic.
(M) $180,000 for 36 AM traffic information radio stations, with 1
station to be located at each border crossing.
(N) $1,040,000 for 260 inbound vehicle counters to be installed at
every inbound vehicle lane.
(O) $950,000 for 38 spotter camera systems to counter the
surveillance of customs inspection activities by persons outside the
boundaries of ports where such surveillance activities are occurring.
(P) $390,000 for 60 inbound commercial truck transponders to be
distributed to all ports of entry.
(Q) $1,600,000 for 40 narcotics vapor and particle detectors to be
distributed to each border crossing.
(R) $400,000 for license plate reader automatic targeting software
to be installed at each port to target inbound vehicles.
(2) United states-canada border.--For the United States-Canada
border, the following:
(A) $3,000,000 for 4 Vehicle and Container Inspection Systems (VACIS).
(B) $8,800,000 for 4 mobile truck x-rays with transmission and
backscatter imaging.
(C) $3,600,000 for 4 1 MeV pallet x-rays.
(D) $250,000 for 50 portable contraband detectors (busters) to be
distributed among ports where the current allocations are inadequate.
(E) $300,000 for 25 contraband detection kits to be distributed
among ports based on traffic volume.
(F) $240,000 for 10 portable Treasury Enforcement Communications
Systems (TECS) terminals to be moved among ports as needed.
(G) $400,000 for 10 narcotics vapor and particle detectors to be
distributed to each border crossing based on traffic volume.
(3) Florida and gulf coast seaports.--For Florida and the Gulf Coast
seaports, the following:
(A) $4,500,000 for 6 Vehicle and Container Inspection Systems (VACIS).
(B) $11,800,000 for 5 mobile truck x-rays with transmission and
backscatter imaging.
(C) $7,200,000 for 8 1 MeV pallet x-rays.
(D) $250,000 for 50 portable contraband detectors (busters) to be
distributed among ports where the current allocations are inadequate.
(E) $300,000 for 25 contraband detection kits to be distributed
among ports based on traffic volume.
(b) Fiscal Year 2003.--Of the amounts made available for fiscal year
2003 under section 301(b)(1)(B) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)(1)(B)), as amended by
section 101(a) of this Act, $9,000,000 shall be available until expended
for the maintenance and support of the equipment and training of
personnel to maintain and support the equipment described in subsection
(a).
(c) Acquisition of Technologically Superior Equipment; Transfer of
Funds.--
(1) In general.--The Commissioner of Customs may use amounts made
available for fiscal year 2002 under section 301(b)(1)(A) of the Customs
Procedural Reform and Simplification Act of 1978 (19 U.S.C.
2075(b)(1)(A)), as amended by section 101(a) of this Act, for the
acquisition of equipment other than the equipment described in
subsection (a) if such other equipment--
(A)(i) is technologically superior to the equipment described in
subsection (a); and
(ii) will achieve at least the same results at a cost that is the
same or less than the equipment described in subsection (a); or
(B) can be obtained at a lower cost than the equipment described in
subsection (a).
(2) Transfer of funds.--Notwithstanding any other provision of this
section, the Commissioner of Customs may reallocate an amount not to
exceed 10 percent of--
(A) the amount specified in any of subparagraphs (A) through (R) of
subsection (a)(1) for equipment specified in any other of such
subparagraphs (A) through (R);
(B) the amount specified in any of subparagraphs (A) through (G) of
subsection (a)(2) for equipment specified in any other of such
subparagraphs (A) through (G); and
(C) the amount specified in any of subparagraphs (A) through (E) of
subsection (a)(3) for equipment specified in any other of such
subparagraphs (A) through (E).
SEC. 103. COMPLIANCE WITH PERFORMANCE PLAN REQUIREMENTS.
As part of the annual performance plan for each of the fiscal years
2002 and 2003 covering each program activity set forth in the budget of
the United States Customs Service, as required under section 1115 of
title 31, United States Code, the Commissioner of Customs shall
establish performance goals, performance indicators, and comply with all
other requirements contained in paragraphs (1) through (6) of subsection
(a) of such section with respect to each of the activities to be carried
out pursuant to sections 111 and 112 of this Act.
Subtitle B--Child Cyber-Smuggling Center of the Customs Service
SEC. 111. AUTHORIZATION OF APPROPRIATIONS FOR PROGRAM TO
PREVENT CHILD PORNOGRAPHY/CHILD SEXUAL EXPLOITATION.
(a) Authorization of Appropriations.--There is authorized to be
appropriated to the Customs Service $10,000,000 for fiscal year 2002 to
carry out the program to prevent child pornography/child sexual
exploitation established by the Child Cyber-Smuggling Center of the
Customs Service.
(b) Use of Amounts for Child Pornography Cyber Tipline.--Of the
amount appropriated under subsection (a), the Customs Service shall
provide 3.75 percent of such amount to the National Center for Missing
and Exploited Children for the operation of the child pornography cyber
tipline of the Center and for increased public awareness of the tipline.
Subtitle C--Personnel Provisions
CHAPTER 1--OVERTIME AND PREMIUM PAY OF OFFICERS OF THE CUSTOMS SERVICE
SEC. 121. CORRECTION RELATING TO FISCAL YEAR CAP.
Section 5(c)(1) of the Act of February 13, 1911 (19 U.S.C. 267(c)(1))
is amended to read as follows:
``(1) Fiscal year cap.--The aggregate of overtime pay under
subsection (a) (including commuting compensation under subsection
(a)(2)(B)) that a customs officer may be paid in any fiscal year may not
exceed $30,000, except that--
``(A) the Commissioner of Customs or his or her designee may waive
this limitation in individual cases in order to prevent excessive costs
or to meet emergency requirements of the Customs Service; and
``(B) upon certification by the Commissioner of Customs to the
Chairmen of the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate that the
Customs Service has in operation a system that provides accurate and
reliable data on a daily basis on overtime and premium pay that is being
paid to customs officers, the Commissioner is authorized to pay any
customs officer for one work assignment that would result in the
overtime pay of that officer exceeding the $30,000 limitation imposed by
this paragraph, in addition to any overtime pay that may be received
pursuant to a waiver under subparagraph (A).''.
SEC. 122. CORRECTION RELATING TO OVERTIME PAY.
Section 5(a)(1) of the Act of February 13, 1911 (19 U.S.C.
267(a)(1)), is amended by inserting after the first sentence the
following new sentences: ``Overtime pay provided under this subsection
shall not be paid to any customs officer unless such officer actually
performed work during the time corresponding to such overtime pay. The
preceding sentence shall not apply with respect to the payment of an
award or settlement to a customs officer who was unable to perform
overtime work as a result of a personnel action in violation of section
5596 of title 5, United States Code, section 6(d) of the Fair Labor
Standards Act of 1938, or title VII of the Civil Rights Act of 1964.''.
SEC. 123. CORRECTION RELATING TO PREMIUM PAY.
(a) In General.--Section 5(b)(4) of the Act of February 13, 1911 (19
U.S.C. 267(b)(4)), is amended by adding at the end the following new
sentences: ``Premium pay provided under this subsection shall not be
paid to any customs officer unless such officer actually performed work
during the time corresponding to such premium pay. The preceding
sentence shall not apply with respect to the payment of an award or
settlement to a customs officer who was unable to perform work during
the time described in the preceding sentence as a result of a personnel
action in violation of section 5596 of title 5, United States Code,
section 6(d) of the Fair Labor Standards Act of 1938, or title VII of
the Civil Rights Act of 1964.''.
(b) Corrections Relating to Night Work Differential Pay.--Section
5(b)(1) of such Act (19 U.S.C. 267(b)(1)) is amended to read as follows:
``(1) Night work differential.--
``(A) 5 p.m. to midnight.--(i) If any hours of regularly scheduled
work of a customs officer occur during the hours of 5 p.m. and 12 a.m.,
the officer is entitled to pay for such hours of work (except for work
to which paragraph (2) or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to not less than 18 percent of that
basic rate.
``(ii) If the regularly scheduled work of a customs officer is 4
p.m. to 12:00 a.m., the officer is entitled to pay for work during such
period (except for work to which paragraph (2) or (3) applies) at the
officer's hourly rate of basic pay plus premium pay amounting to not
less than 18 percent of that basic rate.
``(B) Midnight to 6 a.m.--(i) If any hours of regularly scheduled
work of a customs officer occur during the hours of 12 a.m. and 6 a.m.,
the officer is entitled to pay for such hours of work (except for work
to which paragraph (2) or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 25 percent of that basic rate.
``(ii) If the regularly scheduled work of a customs officer is 12
a.m. to 8:00 a.m., the officer is entitled to pay for work during such
period (except for work to which paragraph (2) or (3) applies) at the
officer's hourly rate of basic pay plus premium pay amounting to 25
percent of that basic rate.''.
SEC. 124. USE OF SAVINGS FROM PAYMENT OF PREMIUM PAY.
Section 5 of the Act of February 13, 1911 (19 U.S.C. 267), is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following:
``(e) Use of Savings From Payment of Premium Pay.--
``(1) Use of amounts.--For fiscal year 2002, the Secretary of the
Treasury--
``(A) shall determine under paragraph (2) the amount of savings from
the payment of premium pay to customs officers; and
``(B) shall use an amount from the Customs User Fee Account equal to
such amount determined under paragraph (2) for additional premium pay
described in clauses (i) and (ii) of subsection (b)(1)(A).
``(2) Determination of savings amount.--The Secretary shall
calculate an amount equal to the difference between--
``(A) the estimated cost for premium pay that would have been
incurred during fiscal year 2002 if this section, as in effect on the
day before the date of the enactment of section 123 of the Customs
Border Security Act of 2001, had governed such costs; and
``(B) the actual cost for premium pay that is incurred during fiscal
year 2002 under this section, as amended by section 123 of the Customs
Border Security Act of 2001.''.
SEC. 125. EFFECTIVE DATE.
This chapter, and the amendments made by this chapter, shall apply
with respect to pay periods beginning on or after 15 days after the date
of the enactment of this Act.
CHAPTER 2--MISCELLANEOUS PROVISIONS
SEC. 131. ADDITIONAL CUSTOMS SERVICE OFFICERS FOR UNITED
STATES CANADA BORDER.
Of the amount made available for fiscal year 2002 under paragraphs
(1) and (2)(A) of section 301(b) of the Customs Procedural Reform and
Simplification Act of 1978 (19 U.S.C. 2075(b)), as amended by section
101 of this Act, $25,000,000 shall be available until expended for the
Customs Service to hire approximately 285 additional Customs Service
officers to address the needs of the offices and ports along the United
States Canada border.
SEC. 132. STUDY AND REPORT RELATING TO PERSONNEL PRACTICES OF
THE CUSTOMS SERVICE.
(a) Study.--The Commissioner of Customs shall conduct a study of
current personnel practices of the Customs Service, including an
overview of performance standards and the effect and impact of the
collective bargaining process on drug
interdiction efforts of the Customs Service and a comparison
of duty rotation policies of the Customs Service and other Federal
agencies that employ similarly-situated personnel.
(b) Report.--Not later than 120 days after the date of the enactment
of this Act, the Commissioner of Customs shall submit to the Committee
on Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report containing the results of the study
conducted under subsection (a).
SEC. 133. STUDY AND REPORT RELATING TO ACCOUNTING AND AUDITING
PROCEDURES OF THE CUSTOMS SERVICE.
(a) Study.--(1) The Commissioner of Customs shall conduct a study of
actions by the Customs Service to ensure that appropriate training is
being provided to Customs Service personnel who are responsible for
financial auditing of importers.
(2) In conducting the study, the Commissioner--
(A) shall specifically identify those actions taken to comply with
provisions of law that protect the privacy and trade secrets of
importers, such as section 552(b) of title 5, United States Code, and
section 1905 of title 18, United States Code; and
(B) shall provide for public notice and comment relating to
verification of the actions described in subparagraph (A).
(b) Report.--Not later than 6 months after the date of the enactment
of this Act, the Commissioner of Customs shall submit to the Committee
on Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report containing the results of the study
conducted under subsection (a).
SEC. 134. ESTABLISHMENT AND IMPLEMENTATION OF COST ACCOUNTING
SYSTEM; REPORTS.
(a) Establishment and Implementation.--
(1) In general.--Not later than September 30, 2003, the Commissioner
of Customs shall, in accordance with the audit of the Customs Service's
fiscal years 2000 and 1999 financial statements (as contained in the
report of the Office of the Inspector General of the Department of the
Treasury issued on February 23, 2001), establish and implement a cost
accounting system for expenses incurred in both commercial and
noncommercial operations of the Customs Service.
(2) Additional requirement.--The cost accounting system described in
paragraph (1) shall provide for an identification of expenses based on
the type of operation, the port at which the operation took place, the
amount of time spent on the operation by personnel of the Customs
Service, and an identification of expenses based on any other
appropriate classification necessary to provide for an accurate and
complete accounting of the expenses.
(b) Reports.--Beginning on the date of the enactment of this Act and
ending on the date on which the cost accounting system described in
subsection (a) is fully implemented, the Commissioner of Customs shall
prepare and submit to Congress on a quarterly basis a report on the
progress of implementing the cost accounting system pursuant to
subsection (a).
SEC. 135. STUDY AND REPORT RELATING TO TIMELINESS OF
PROSPECTIVE RULINGS.
(a) Study.--The Comptroller General shall conduct a study on the
extent to which the Office of Regulations and Rulings of the Customs
Service has made improvements to decrease the amount of time to issue
prospective rulings from the date on which a request for the ruling is
received by the Customs Service.
(b) Report.--Not later than 1 year after the date of the enactment of
this Act, the Comptroller General shall submit to the Committee on Ways
and Means of the House of Representatives and the Committee on Finance
of the Senate a report containing the results of the study conducted
under subsection (a).
(c) Definition.--In this section, the term ``prospective ruling''
means a ruling that is requested by an importer on goods that are
proposed to be imported into the United States and that relates to the
proper classification, valuation, or marking of such goods.
SEC. 136. STUDY AND REPORT RELATING TO CUSTOMS USER FEES.
(a) Study.--The Comptroller General shall conduct a study on the
extent to which the amount of each customs user fee imposed under
section 13031(a) of the Consolidated Omnibus Budget Reconciliation Act
of 1985 (19 U.S.C. 58c(a)) is commensurate with the level of services
provided by the Customs Service relating to the fee so imposed.
(b) Report.--Not later than 120 days after the date of the enactment
of this Act, the Comptroller General shall submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a report in classified form containing--
(1) the results of the study conducted under subsection (a); and
(2) recommendations for the appropriate amount of the customs user
fees if such results indicate that the fees are not commensurate with
the level of services provided by the Customs Service.
Subtitle D--Antiterrorism Provisions
SEC. 141. IMMUNITY FOR UNITED STATES OFFICIALS THAT ACT IN GOOD FAITH.
(a) Immunity.--Section 3061 of the Revised Statutes of the United
States (19 U.S.C. 482) is amended--
(1) by striking ``Any of the officers'' and inserting ``(a) Any of
the officers''; and
(2) by adding at the end the following:
``(b) Any officer or employee of the United States conducting a
search of a person pursuant to subsection (a) shall not be held liable
for any civil damages as a result of such search if the officer or
employee performed the search in good faith.''.
(b) Requirement To Post Policy and Procedures for Searches of
Passengers.--Not later than 30 days after the date of the enactment of
this Act, the Commissioner of the Customs Service shall ensure that at
each Customs border facility appropriate notice is posted that provides
a summary of the policy and procedures of the Customs Service for
searching passengers, including a statement of the policy relating to
the prohibition on the conduct of profiling of passengers based on
gender, race, color, religion, or ethnic background.
SEC. 142. EMERGENCY ADJUSTMENTS TO OFFICES, PORTS OF ENTRY, OR
STAFFING OF THE CUSTOMS SERVICE.
Section 318 of the Tariff Act of 1930 (19 U.S.C. 1318) is amended--
(1) by striking ``Whenever the President'' and inserting ``(a)
Whenever the President''; and
(2) by adding at the end the following:
``(b)(1) Notwithstanding any other provision of law, the Secretary of
the Treasury, when necessary to respond to a national emergency declared
under the National Emergencies Act (50 U.S.C. 1601 et seq.) or to a
specific threat to human life or national interests, is authorized to
take the following actions on a temporary basis:
``(A) Eliminate, consolidate, or relocate any office or port of
entry of the Customs Service.
``(B) Modify hours of service, alter services rendered at any
location, or reduce the number of employees at any location.
``(C) Take any other action that may be necessary to directly
respond to the national emergency or specific threat.
``(2) Notwithstanding any other provision of law, the Commissioner of
Customs, when necessary to respond to a specific threat to human life or
national interests, is authorized to close temporarily any Customs
office or port of entry or take any other lesser action that may be
necessary to respond to the specific threat.
``(3) The Secretary of the Treasury or the Commissioner of Customs,
as the case may be, shall notify the Committee on Ways and Means of the
House of Representatives and the Committee on Finance of the Senate not
later than 72 hours after taking any action under paragraph (1) or
(2).''.
SEC. 143. MANDATORY ADVANCED ELECTRONIC INFORMATION FOR CARGO
AND PASSENGERS.
(a) Cargo Information.--
(1) In general.--Section 431(b) of the Tariff Act of 1930 (19 U.S.C.
1431(b)) is amended--
(A) in the first sentence, by striking ``Any manifest'' and
inserting ``(1) Any manifest''; and
(B) by adding at the end the following:
``(2) In addition to any other requirement under this section, for
each land, air, or vessel carrier required to make entry or obtain
clearance under the customs laws of the United States, the pilot, the
master, operator, or owner of such carrier (or the authorized agent of
such operator or owner) shall provide by electronic transmission cargo
manifest information in advance of such entry or clearance in such
manner, time, and form as prescribed under regulations by the Secretary.
The
Secretary may exclude any class of land, air, or vessel
carrier for which the Secretary concludes the requirements of this
subparagraph are not necessary.''.
(2) Conforming amendments.--Subparagraphs (A) and (C) of section
431(d)(1) of such Act are each amended by inserting before the semicolon
``or subsection (b)(2)''.
(b) Passenger Information.--Part II of title IV of the Tariff Act of
1930 (19 U.S.C. 1431 et seq.) is amended by inserting after section 431
the following:
``SEC. 432. PASSENGER AND CREW MANIFEST INFORMATION REQUIRED
FOR LAND, AIR, OR VESSEL CARRIERS.
``(a) In General.--For every person arriving or departing on a land,
air, or vessel carrier required to make entry or obtain clearance under
the customs laws of the United States, the pilot, the master, operator,
or owner of such carrier (or the authorized agent of such operator or
owner) shall provide by electronic transmission manifest information
described in subsection (b) in advance of such entry or clearance in
such manner, time, and form as prescribed under regulations by the
Secretary.
``(b) Information Described.--The information described in this
subsection shall include for each person described in subsection (a),
the person's--
``(1) full name;
``(2) date of birth and citizenship;
``(3) gender;
``(4) passport number and country of issuance;
``(5) United States visa number or resident alien card number, as
applicable;
``(6) passenger name record; and
``(7) such additional information that the Secretary, by regulation,
determines is reasonably necessary to ensure aviation and maritime
safety pursuant to the laws enforced or administered by the Customs
Service.''.
(c) Definition.--Section 401 of the Tariff Act of 1930 (19 U.S.C.
1401) is amended by adding at the end the following:
``(t) The term `land, air, or vessel carrier' means a land, air, or
vessel carrier, as the case may be, that transports goods or passengers
for payment or other consideration, including money or services
rendered.''.
(d) Effective Date.--The amendments made by this section shall take
effect beginning 45 days after the date of the enactment of this Act.
SEC. 144. BORDER SEARCH AUTHORITY FOR CERTAIN CONTRABAND IN
OUTBOUND MAIL.
The Tariff Act of 1930 is amended by inserting after section 582 the
following:
``SEC. 583. EXAMINATION OF OUTBOUND MAIL.
``(a) Examination.--
``(1) In general.--For purposes of ensuring compliance with the
Customs laws of the United States and other laws enforced by the Customs
Service, including the provisions of law described in paragraph (2), a
Customs officer may, subject to the provisions of this section, stop and
search at the border, without a search warrant, mail of domestic origin
transmitted for export by the United States Postal Service and foreign
mail transiting the United States that is being imported or exported by
the United States Postal Service.
``(2) Provisions of law described.--The provisions of law described
in this paragraph are the following:
``(A) Section 5316 of title 31, United States Code (relating to
reports on exporting and importing monetary instruments).
``(B) Sections 1461, 1463, 1465, and 1466 and chapter 110 of title
18, United States Code (relating to obscenity and child pornography).
``(C) Section 1003 of the Controlled Substances Import and Export
Act (21 U.S.C. 953; relating to exportation of controlled substances).
``(D) The Export Administration Act of 1979 (50 U.S.C. app. 2401 et
seq.).
``(E) Section 38 of the Arms Export Control Act (22 U.S.C. 2778).
``(F) The International Emergency Economic Powers Act (50 U.S.C.
1701 et seq.).
``(b) Search of Mail Not Sealed Against Inspection and Other
Mail.--Mail not sealed against inspection under the postal laws and
regulations of the United States, mail which bears a customs
declaration, and mail with respect to which the sender or addressee has
consented in writing to search, may be searched by a Customs officer.
``(c) Search of Mail Sealed Against Inspection.--(1) Mail sealed
against inspection under the postal laws and regulations of the United
States may be searched by a Customs officer, subject to paragraph (2),
upon reasonable cause to suspect that such mail contains one or more of
the following:
``(A) Monetary instruments, as defined in section 1956 of title 18,
United States Code.
``(B) A weapon of mass destruction, as defined in section 2332a(b)
of title 18, United States Code.
``(C) A drug or other substance listed in schedule I, II, III, or IV
in section 202 of the Controlled Substances Act (21 U.S.C. 812).
``(D) National defense and related information transmitted in
violation of any of sections 793 through 798 of title 18, United States
Code.
``(E) Merchandise mailed in violation of section 1715 or 1716 of
title 18, United States Code.
``(F) Merchandise mailed in violation of any provision of chapter 71
(relating to obscenity) or chapter 110 (relating to sexual exploitation
and other abuse of children) of title 18, United States Code.
``(G) Merchandise mailed in violation of the Export Administration
Act of 1979 (50 U.S.C. app. 2401 et seq.).
``(H) Merchandise mailed in violation of section 38 of the Arms
Export Control Act (22 U.S.C. 2778).
``(I) Merchandise mailed in violation of the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.).
``(J) Merchandise mailed in violation of the Trading with the Enemy
Act (50 U.S.C. app. 1 et seq.).
``(K) Merchandise subject to any other law enforced by the Customs
Service.
``(2) No person acting under authority of paragraph (1) shall read,
or authorize any other person to read, any correspondence contained in
mail sealed against inspection unless prior to so reading--
``(A) a search warrant has been issued pursuant to Rule 41, Federal
Rules of Criminal Procedure; or
``(B) the sender or addressee has given written authorization for
such reading.''.
SEC. 145. AUTHORIZATION OF APPROPRIATIONS FOR REESTABLISHMENT
OF CUSTOMS OPERATIONS IN NEW YORK CITY.
(a) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated for the
reestablishment of operations of the Customs Service in New York, New
York, such sums as may be necessary for fiscal year 2002.
(2) Operations described.--The operations referred to in paragraph
(1) include, but are not limited to, the following:
(A) Operations relating to the Port Director of New York City, the
New York Customs Management Center (including the Director of Field
Operations), and the Special Agent-In-Charge for New York.
(B) Commercial operations, including textile enforcement operations
and salaries and expenses of--
(i) trade specialists who determine the origin and value of
merchandise;
(ii) analysts who monitor the entry data into the United States of
textiles and textile products; and
(iii) Customs officials who work with foreign governments to examine
textile makers and verify entry information.
(b) Availability.--Amounts appropriated pursuant to the authorization
of appropriations under subsection (a) are authorized to remain
available until expended.
Subtitle E--Textile Transshipment Provisions
SEC. 151. GAO AUDIT OF TEXTILE TRANSSHIPMENT MONITORING BY
CUSTOMS SERVICE.
(a) GAO Audit.--The Comptroller General of the United States shall
conduct an audit of the system established and carried out by the
Customs Service to monitor textile transshipment.
(b) Report.--Not later than 9 months after the date of enactment of
this Act, the Comptroller General shall submit to the Committee on Ways
and Means of the House of Representatives and Committee on Finance of
the Senate a report that contains the results of the study conducted
under subsection (a), including recommendations for improvements to the
transshipment monitoring system if applicable.
(c) Transshipment Described.--Transshipment within the meaning of
this section has occurred when preferential treatment under any
provision of law has been claimed for a textile or apparel article on
the basis of material false information concerning the country of
origin, manufacture, processing, or assembly of the article or any of
its components. For purposes of the preceding sentence, false
information is material if disclosure of the true information would mean
or would have meant that the article is or was ineligible for
preferential treatment under the provision of law in question.
SEC. 152. AUTHORIZATION OF APPROPRIATIONS FOR TEXTILE
TRANSSHIPMENT ENFORCEMENT OPERATIONS.
(a) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated for textile
transshipment enforcement operations of the Customs Service $9,500,000
for fiscal year 2002.
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) are authorized to
remain available until expended.
(b) Use of Funds.--Of the amount appropriated pursuant to the
authorization of appropriations under subsection (a), the following
amounts are authorized to be made available for the following purposes:
(1) Import specialists.--$1,463,000 for 21 Customs import
specialists to be assigned to selected ports for documentation review to
support detentions and exclusions and 1 additional Customs import
specialist assigned to the Customs headquarters textile program to
administer the program and provide oversight.
(2) Inspectors.--$652,080 for 10 Customs inspectors to be assigned
to selected ports to examine targeted high-risk shipments.
(3) Investigators.--(A) $1,165,380 for 10 investigators to be
assigned to selected ports to investigate instances of smuggling, quota
and trade agreement circumvention, and use of counterfeit visas to enter
inadmissible goods.
(B) $149,603 for 1 investigator to be assigned to Customs
headquarters textile program to coordinate and ensure implementation of
textile production verification team results from an investigation
perspective.
(4) International trade specialists.--$226,500 for 3 international
trade specialists to be assigned to Customs headquarters to be dedicated
to illegal textile transshipment policy issues and other free trade
agreement enforcement issues.
(5) Permanent import specialists for hong kong.--$500,000 for 2
permanent import specialist positions and $500,000 for 2 investigators
to be assigned to Hong Kong to work with Hong Kong and other government
authorities in Southeast Asia to assist such authorities pursue
proactive enforcement of bilateral trade agreements.
(6) Various permanent trade positions.--$3,500,000 for the following:
(A) 2 permanent positions to be assigned to the Customs attache AE1
office in Central America to address trade enforcement issues for that
region.
(B) 2 permanent positions to be assigned to the Customs attache AE1
office in South Africa to address trade enforcement issues pursuant to
the African Growth and Opportunity Act (title I of Public Law 106 200).
(C) 4 permanent positions to be assigned to the Customs attache AE1
office in Mexico to address the threat of illegal textile transshipment
through Mexico and other related issues under the North American Free
Trade Agreement Act.
(D) 2 permanent positions to be assigned to the Customs attache AE1
office in Seoul, South Korea, to address the trade issues in the
geographic region.
(E) 2 permanent positions to be assigned to the proposed Customs
attache AE1 office in New Delhi, India, to address the threat of illegal
textile transshipment and other trade enforcement issues.
(F) 2 permanent positions to be assigned to the Customs attache AE1
office in Rome, Italy, to address trade enforcement issues in the
geographic region, including issues under free trade agreements with
Jordan and Israel.
(7) Attorneys.--$179,886 for 2 attorneys for the Office of the Chief
Counsel of the Customs Service to pursue cases regarding illegal textile
transshipment.
(8) Auditors.--$510,000 for 6 Customs auditors to perform internal
control reviews and document and record reviews of suspect importers.
(9) Additional travel funds.--$250,000 for deployment of additional
textile production verification teams to sub-Saharan Africa.
(10) Training.--(A) $75,000 for training of Customs personnel.
(B) $200,000 for training for foreign counterparts in risk
management analytical techniques and for teaching factory inspection
techniques, model law Development, and enforcement techniques.
(11) Outreach.--$60,000 for outreach efforts to United States
importers.
SEC. 153. IMPLEMENTATION OF THE AFRICAN GROWTH AND OPPORTUNITY ACT.
Of the amount made available for fiscal year 2002 under section
301(b)(2)(A) of the Customs Procedural Reform and Simplification Act of
1978 (19 U.S.C. 2075(b)(2)(A)), as amended by section 101(b)(1) of this
Act, $1,317,000 shall be available until expended for the Customs
Service to provide technical assistance to help sub-Saharan Africa
countries develop and implement effective visa and anti-transshipment
systems as required by the African Growth and Opportunity Act (title I
of Public Law 106 200), as follows:
(1) Travel funds.--$600,000 for import specialists, special agents,
and other qualified Customs personnel to travel to sub-Saharan Africa
countries to provide technical assistance in developing and implementing
effective visa and anti-transshipment systems.
(2) Import specialists.--$266,000 for 4 import specialists to be
assigned to Customs headquarters to be dedicated to providing technical
assistance to sub-Saharan African countries for developing and
implementing effective visa and anti-transshipment systems.
(3) Data reconciliation analysts.--$151,000 for 2 data
reconciliation analysts to review apparel shipments.
(4) Special agents.--$300,000 for 2 special agents to be assigned to
Customs headquarters to be available to provide technical assistance to
Sub-Saharan African countries in the performance of investigations and
other enforcement initiatives.
TITLE II--OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
SEC. 201. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--Section 141(g)(1) of the Trade Act of 1974 (19
U.S.C. 2171(g)(1)) is amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking ``not to exceed'';
(B) in clause (i) to read as follows:
``(i) $30,000,000 for fiscal year 2002.''; and
(C) in clause (ii) to read as follows:
``(ii) $31,000,000 for fiscal year 2003.''; and
(2) in subparagraph (B)--
(A) in clause (i), by adding ``and'' at the end;
(B) by striking clause (ii); and
(C) by redesignating clause (iii) as clause (ii).
(b) Submission of Out-Year Budget Projections.--Section 141(g) of the
Trade Act of 1974 (19 U.S.C. 2171(g)) is amended by adding at the end
the following:
``(3) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the United States Trade Representative shall submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate the projected amount of funds for the succeeding
fiscal year that will be necessary for the Office to carry out its
functions.''.
(c) Additional Staff for Office of Assistant U.S. Trade
Representative for Congressional Affairs.--
(1) In general.--There is authorized to be appropriated such sums as
may be necessary for fiscal year 2002 for the salaries and expenses of
two additional legislative specialist employee positions within the
Office of the Assistant United States Trade Representative for
Congressional Affairs.
(2) Availability.--Amounts appropriated pursuant to the
authorization of appropriations under paragraph (1) are authorized to
remain available until expended.
TITLE III--UNITED STATES INTERNATIONAL TRADE COMMISSION
SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--Section 330(e)(2)(A) of the Tariff Act of 1930 (19
U.S.C. 1330(e)(2)) is amended--
(1) in clause (i) to read as follows:
``(i) $51,400,000 for fiscal year 2002.''; and
(2) in clause (ii) to read as follows:
``(ii) $53,400,000 for fiscal year 2003.''.
(b) Submission of Out-Year Budget Projections.--Section 330(e) of the
Tariff Act of 1930 (19 U.S.C. 1330(e)(2)) is amended by adding at the
end the following:
``(4) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the Commission shall submit to the Committee on Ways and Means of the
House of Representatives and the Committee on Finance of the Senate the
projected amount of funds for the succeeding fiscal year that will be
necessary for the Commission to carry out its functions.''.
TITLE IV--OTHER TRADE PROVISIONS
SEC. 401. INCREASE IN AGGREGATE VALUE OF ARTICLES EXEMPT FROM
DUTY ACQUIRED ABROAD BY UNITED STATES RESIDENTS.
(a) In General.--Subheading 9804.00.65 of the Harmonized Tariff
Schedule of the United States is amended in the article description
column by striking ``$400'' and inserting ``$800''.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect 90 days after the date of the enactment of this Act.
SEC. 402. REGULATORY AUDIT PROCEDURES.
Section 509(b) of the Tariff Act of 1930 (19 U.S.C. 1509(b)) is
amended by adding at the end the following:
``(6)(A) If during the course of any audit concluded under this
subsection, the Customs Service identifies overpayments of duties or
fees or over-declarations of quantities or values that are within the
time period and scope of the audit that the Customs Service has defined,
then in calculating the loss of revenue or monetary penalties under
section 592, the Customs Service shall treat the overpayments or
over-declarations on finally liquidated entries as an offset to any
underpayments or underdeclarations also identified on finally liquidated
entries if such overpayments or over-declarations were not made by the
person being audited for the purpose of violating any provision of law.
``(B) Nothing in this paragraph shall be construed to authorize a
refund not otherwise authorized under section 520.''.
I. INTRODUCTION
A. PURPOSE AND SUMMARY
H.R. 3129, as amended, would authorize appropriations for fiscal year
FY 2002 and FY 2003 for the U.S. Customs Service, including specific
authorization for anti-terrorism, drug interdiction and the prevention
of child pornography. The bill would also provide more funding to
textile transshipment efforts and assistance to African countries for
implementation of the African Growth and Opportunities Act. The bill
would further dedicate resources to reestablish the New York Customs
offices formerly at the World Trade Center, which were destroyed in the
terrorist attack of September 11th, and it would provide more resources
to the Northern Border. H.R. 3129 would also authorize full funding for
the Customs Automated Commercial Environment. H.R. 3129 would also
authorize appropriations for the Office of the United States Trade
Representative (USTR) and the International Trade Commission (ITC).
H.R. 3129, as amended, would make corrections to the overtime and
premium pay for Customs inspectors and increase the premium pay for
inspectors working night-time hours. It would also relax the manner in
which the fiscal-year $30,000 cap for overtime pay is calculated by
removing premium pay from the cap. The bill would alter the hours in
which night-time premium pay would be available while using the savings
to increase night-time premium pay for inspectors actually working at
night.
H.R. 3129, as amended, would also give the U.S. Customs Service
authority to fight against terrorism and drug smugglers through several
new tools. Customs inspectors would be immune from civil suits as a
result of personal searches at the border if they act in good faith.
Customs Service would have the authority to search outbound mail so long
as privacy and Fourth Amendment protections are observed. The Treasury
Department would also be required to build a system through the
regulatory process to handle the collection of advanced information for
inbound cargo, as well as inbound and outbound passengers, from carriers
for the purpose of targeting both terrorist activity and smuggling.
H.R. 3129, as amended, would also authorize several studies and
reports on Customs' operations including a report on the personnel
practices of the Customs Service, on the accounting and auditing
procedures of Customs, on the monitoring and enforcement of textile
transshipment, on Customs' anticipated improvements to stop delays in
issuing prospective rulings, and on determining the proper level of fees
charged by Customs on importers. The first two reports would be issued
by Customs, and the last three would be issued by the General Accounting
Office. The bill would also change Customs' audit process by requiring
that overpayments found during an audit be used as offsets for any
underpayments also found, permit emergency adjustments to Customs
offices and staff during emergencies, and permanently raise the duty
exemption on U.S. residents returning from abroad from the current $400
to $800.
B. BACKGROUND
1. Authorization of Appropriations
The Committee on Ways and Means has adopted a two-year authorization
process to provide Customs, USTR, and the ITC with guidance as they plan
their budgets, as well as guidance from the Committee for the
appropriations process. In preparing H.R. 3129, the Committee considered
the President's budget for FY 2002. Although each agency submitted its
FY 2002 budget request, the Committee has relied upon anticipated cost
inflation from the Congressional Budget Office as a guide for FY 2003.
The statutory basis for the authorizations of appropriations is as
follows: for Customs, section 301(b) of the Customs Procedural Reform
and Simplification Act of 1978 (19 U.S.C. 2075(b)); for USTR, section
141(g)(1) of the Trade Act of 1974 (19 U.S.C. 2171(g)(1)); and for the
ITC, section 330(e)(2)(A) of the Tariff Act of 1930 (19 U.S.C.
1330(e)(2)(A)).
2. customs cyber-smuggling center
Customs enforces laws against international trafficking of child
pornography the laws at its Cyber-smuggling Center. This legislation is
needed for additional funding for Customs to expand its efforts in
preventing on-line child pornography.
3. Customs Automation
Customs' current automation system, the Automated Commercial System
(ACS), is an aging 17-year-old system which has experienced several
``brownouts.'' In addition, under the Customs Modernization Act (Mod
Act) that was part of the North American Free Trade Agreements Act
(title VI), Customs is required to provide increased electronic
processing for entries, informed compliance, and record keeping, but ACS
does not have the capacity to meet these modernization requirements.
Customs plans to replace ACS with the Automated Commercial Environment
(ACE).
4. Customs Personnel Issues
The Act of February 13, 1911, as amended, known as the ``1911 Act,''
created the original overtime pay system for Customs inspectors. The Act
authorized Customs to compensate officers at a rate of two days of basic
hourly pay for Sundays, and a rate of two days of basic hourly pay plus
the basic hourly rate for holidays. Minimum compensation for nighttime
pay--5 p.m to 8 a.m.--was 4 to 12 hours of pay. Section 13811 of the
Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1993, known as
the Customs Officer Pay Reform Amendments (COPRA), amended the 1911 Act
with regard to the overtime and premium pay system for Customs
inspectors and canine enforcement officers, effective January 1, 1994.
Only inspectors and canine officers are covered by the reforms, and only
when performing inspections. Clerical and support staff are no longer
eligible for double time and are covered--as are most other Federal
employees--under the Federal Employees Pay Act (FEPA), at 1\1/2\ regular
pay. The COBRA of 1993 also amended overtime compensation paid to
Customs officers as part of the basic pay for the Civil Service
Retirement System. Compensation may not exceed 50 percent of the
statutory maximum in overtime pay for Customs officers (i.e., $15,000,
that is, 50 percent of $30,000). Due to a number of arbitration rulings,
Customs has been required to pay both overtime and premium pay to
Customs officers for work not performed. Further, the changes Congress
made to the night pay system for Customs in 1993 have resulted in an
unforeseen
circumstance where Customs officers can receive night pay for
working at 12:00 noon in certain instances. The Treasury Inspector
General has called for a legislative change to correct the night pay
system.
Customs was subject to a partnership agreements with its union that
prevent it from permanently reassigning Customs officers without the
affected employees' consent. Customs' ability to temporarily reassign
officers without officers' consent was also limited under the
partnership agreement with the union. Concerns were raised that the
requirement that Customs officers and inspectors agree to such rotations
may affect Customs drug interdiction efforts and the integrity of the
border workforce. In addition, there have been a number of incidents in
which implementation of certain inspection procedures were delayed
because of union objections to the procedures. While these particular
incidents have been resolved, there have been questions raised as to
whether drug interdiction efforts were compromised.
C. LEGISLATIVE HISTORY
The Subcommittee on Trade of the Committee on Ways and Means held a
public hearing on July 17, 2001, on Customs, USTR, and the ITC budget
authorizations for FY 2002 and 2003 as well as other Customs issues,
including compensation for Customs officers, funding for Customs
Automated Commercial Environment (ACE) and the International Trade Data
System (ITDS), and labor/management issues. Acting Customs Commissioner
Winwood, Mr. Dennis Schindel of the Treasury Inspector General's office,
Ms. Laurie Ekstrand of the U.S. General Accounting Office (GAO), and
representatives of the various sectors of the trade industry testified.
Acting Commissioner Winwood stressed the need for ACE and detailed steps
Customs has taken to improve ACE project management.
Ms. Ekstrand acknowledged that Customs has begun to implement the
recommendations made in the GAO report. Representatives of the trade
industry were unified in their opinion that ACE is desperately needed
and that Customs could effectively manage a project the size of ACE. On
Customs labor issues, testimony was received from Mr. Dennis S.
Schindel, Deputy Inspector General for Audit, Office of the Inspector
General, and from Ms. Colleen Kelley, President of the National Treasury
Employees Union (NTEU). In his testimony, Mr. Schindel stated that
although the Customs Officers Pay Reform Act (COPRA) was intended to
reduce Customs overtime costs for inspectional services, COPRA instead
has resulted in an increase in Customs premium pay costs. Ms. Ekstrand
also commented on a recent GAO study indicating that Customs took far
took far too long in issuing prospective rulings.\1\
\1\Prospective rulings are issued by Customs at the request of importers
seeking guidance on various matters such as the classification or the
valuation of certain goods.
On October 16, 2001, Mr. Crane introduced H.R. 3129, and the
Committee held a markup of the bill on October 31, 2001. Four amendments
were offered at the markup: Mr. Stark on behalf of Mr. Rangel offered an
amendment to strike sections 123 and 124 of H.R. 3129, the effect of
which would maintain the current night differential pay rate schedule
for Customs officers. Mr. Stark's amendment was defeated by a recorded
vote of 13 ayes to 20 nays. Mr. Becerra offered and withdrew a
non-germane amendment to give Customs inspectors law enforcement status.
Mr. McDermott offered an amendment to strike section 141, the effect of
which would be to deny the provision's civil lawsuit immunity to Customs
inspectors. Mr. McDermott's amendment was defeated by voice vote.
Chairman Thomas offered an amendment in the nature of a substitute that
passed the Committee by 20 ayes to 14 nays. The Committee then ordered
the bill favorably reported, as amended, by voice vote. The Committee
then moved that the Chairman have the authority to offer such motions as
may be necessary to go to conference, and the motion passed by roll call
vote 2 present, 19 ayes, and 1 nay. Eight Members passed on this vote.
II. EXPLANATION OF THE BILL
TITLE I--UNITED STATES CUSTOMS SERVICE
SUBTITLE A--DRUG ENFORCEMENT AND OTHER NONCOMMERCIAL AND COMMERCIAL
OPERATIONS
Sec. 101. Authorization of appropriations for noncommercial
operations, commercial operations, and air and marine interdiction
Present law
The statutory basis for authorization of appropriations for Customs
is section 301(b)(1) of the Customs Procedural and Simplification Act of
1978 (19 U.S.C. 2075(b)). That law, as amended by section 8102 of the
Omnibus Budget Reconciliation Act of 1986 [P.L. 99 509], first outlined
separate amounts for non-commercial and commercial operations for the
salaries and expenses portion of the Customs authorization. Under 19
U.S.C. 2075, Congress has adopted a two-year authorization process to
provide Customs with guidance as it plans its budget, as well as
guidance from the Committee for the appropriation process.
The most recent authorization of appropriations for Customs (under
section 101 of the Customs and Trade Act of 1990 [P.L. 101 382])
provided $118,238,000 for salaries and expenses and $143,047,000 for air
and marine interdiction program for FY 1991, and $1,247,884,000 for
salaries and expenses and $150,199,000 for air and marine interdiction
program in FY 1992.
Explanation of the provision
This provision authorizes $1,006,501,000 for FY 2002 and
$1,032,567,000 for FY 2003 for noncommercial operations of the Customs
Service. It also authorizes $1,378,725,000 for FY 2002 and
$1,414,432,000 for FY 2003 for commercial operations of the Customs
Service. Of the amounts authorized for commercial operations,
$308,000,000 is authorized for the automated commercial environment
computer system for each fiscal year. The provisions require that the
Customs Service provide the Committee on Ways and Means and the
Committee on Finance of the Senate with a report demonstrating that the
computer system is being built in a cost-effective manner. In addition,
the provisions authorizes $183,853,000 for FY 2002 and $188,615,000 for
FY 2003 for air and marine interdiction operations of the Customs
Service. The provision requires submission of out-of-year budget
projections to the Ways and Means and Finance
Committees.
Reason for change
The Committee notes that this non-commercial versus commercial split
supplied by Customs does not provide meaningful information. The
information is not the result of the collection of cost data on a
continual basis. Rather Customs apportions its budget through this
artificial division based upon an ad hoc survey performed years ago and
that is no longer available. The survey estimated that a certain
percentage of Customs' activities were commercial-related, and the rest
non-commercial, and based upon that conclusion, Customs merely takes its
overall budget and multiplies it by that static percentage to arrive at
its estimation from year to year. Obviously, this methodology is
woefully inadequate since actual costs for various functions change from
year to year. The methodology, if it was ever accurate, is now at best a
rule of thumb. For this reason, the Committee has addressed this problem
in Sections 134 and 136 of the bill.
Regarding noncommercial spending, the Committee is committed to
giving Customs the resources needed to increase the overall level of
Customs officers and Special Agents dedicated to countering terrorism,
narcotics, and money laundering activities. Accordingly, the
authorization for non-commercial operations for both fiscal years 2002
and 2003 is substantially larger than the President's request, providing
Customs with the resources to stop terrorists and drugs from entering
this country while at the same time expediting the entry of legitimate
persons and cargo. The Committee notes that during this time of
emergency, a reevaluation of Customs needs by the Administration, along
with the needs of all anti-terrorist agencies, has only just begun. The
Committee looks forward to the Administration's stock-taking and commits
to review any updated requests from the Administration.
Regarding commercial spending, the Committee recognizes Customs'
efforts to modernize its operations to meet both its enforcement and
trade facilitation missions. Customs plans to spend over $1 billion over
the next few years to modernize its automation systems. The current
Customs import processing system, the Automated Commercial System (ACS),
is 17 years old. Over time, ACS became unable to handle the increased
computing requirements brought on by trade growth and started to
experience service failures called brownouts. These brownouts caused
import delays and increased manual processing. Recent ACS funding has
enabled Customs to fix critical links and grow the system to keep up
with the workload, thereby eliminating brownouts for now. With continued
funding, Customs expects ACS to remain functional until the maximum
capabilities of the system and application software are reached.
However, of continued concern is the explosive growth in trade volume
and its impact on ACS. In the last decade, trade has grown 132 percent,
and by 2004, Customs will be processing more than 30 million commercial
entries a year. This is up from 12.3 million in 1994--more than double
the level of ten years earlier.
Many observers, including Customs, have said that ACS is headed for a
major system crash which will certainly have an adverse impact on trade.
They also believe that any serious failure of ACS could have widespread
economic effect on U.S. businesses all along the supply chain including
manufacturers, suppliers, brokers, and retailers. Between August 1998,
and March 2001, ACS experienced a number of significant slow downs in
processing ``brownouts,'' which in turn adversely affected the ability
of the trade community to process entries quickly and efficiently.
Although Customs continues to make costly investments to ACS to
alleviate this problem on a short-term basis, Customs and the trade
community expect a recurrence of these problems, including possible
shutdowns of ACS.
Customs plans to replace ACS with the Automated Commercial
Environment (ACE) and has spent approximately $65 million on ACE
development to date. Some of the main differences between ACS and ACE
are that ACE reportedly will use a single integrated system, modern
standards, processes, techniques and language, and will be compatible
with commercial software. By contrast, ACS does not have an integrated
system, uses outdated techniques and languages, and cannot use
commercially compatible software. The Committee agrees with Customs and
the trade community that ACE is needed to cope with the increased growth
of trade, and equally importantly, to meet the legislative requirements
for Customs automation modernization mandated under the Customs
Modernization Act. Therefore, in its authorization for commercial
operations for both FY 2002 and FY 2003, the Committee has included
funding to provide the Customs Service with the crucial resources it
needs to continue developing ACE. However, the Committee underscores the
need to ensure that Customs manage and develop ACE cost effectively,
while meeting the legislative automation modernization mandate of the
Mod Act.
The Miscellaneous Trade and Technical Corrections Act of 1999, P.L.
106 36, Section 2405 mandated that ``not later than January 1, 2000, the
Secretary shall provide for the inclusion of commercial importation data
from foreign-trade zones under the National Customs Automation
Program.'' The deadline has now passed and the Committee is concerned
that the Customs Service has made no progress on this FTZ automation
plan. In light of the current development of the Automated Commercial
Environment (ACE) by the Customs Service, the Committee directs the
Customs Service to incorporate the Foreign-Trade Zone automation process
in the first phase of ACE.
Sec. 102. Antiterrorist and illicit narcotics detection
equipment for the United States-Mexico border, United States-Canada
border, and Florida and the Gulf Coast seaports
Present law
No applicable section.
Explanation of the provision
This provision would require that $90,244,000 of the FY 2002
appropriations be available until expended for acquisition and other
expenses associated with implementation and deployment of terrorist and
narcotics detection equipment along the United States-Mexico border, the
United States-Canada border, and Florida and the Gulf seaports. The
equipment would include vehicle and inspection systems. The provision
would require that $9,000,000 of
the FY 2003 appropriations be used for maintenance of
equipment described above. This section would also provide the
Commissioner of Customs with flexibility in using these funds and would
allow for the acquisition of new updated technology not anticipated when
this bill was drafted. Nothing in the language of the bill is intended
to prevent the Commissioner of Customs from dedicating resources to
specific ports not identified in the bill.
The equipment would include vehicle and container inspection systems,
mobile truck x-rays, upgrades to fixed-site truck x-rays, pallet x-rays,
busters, contraband detection kits, ultrasonic container inspection
units, automated targeting systems, rapid tire deflator systems,
portable Treasury Enforcement Communications Systems terminals, remote
surveillance camera systems, weigh-in-motion sensors, vehicle counters,
spotter camera systems, inbound commercial truck transponders, narcotics
vapor and particle detectors, and license plate reader automatic
targeting software.
Reason for change
The Committee recognizes the needs of the Customs Service to
effectively interdict terrorists and drugs entering the United States.
The Committee is concerned that Customs currently lacks sufficient
equipment along the Canada, Mexico, and Gulf borders to effectively
carry out this mission while at the same time ensuring that trade flows
in a timely manner. The list of equipment is based on the needs Customs
has articulated to the Committee both before and after the September
11th terrorist attacks. The Committee expects that Customs will continue
to allocate resources to additional ports as it deems appropriate.
Sec. 103. Compliance with performance plan requirements
Present law
No applicable section.
Explanation of the provision
This provision would require Customs to measure specifically the
effectiveness of the resources dedicated in sections 102 and 103 as part
of its annual performance plan.
Reason for change
The Committee believes Customs must be accountable to the taxpayer in
assessing and measuring the effectiveness of its limited resources. This
provision ensures that Customs evaluates how it used these additional
resources to achieve the goals of Congress.
SUBTITLE B--CHILD CYBER-SMUGGLING CENTER OF THE CUSTOMS SERVICE
Sec. 111. Authorization of appropriations for program to
prevent child pornography/child sexual exploitation
Present law
Customs enforcement responsibilities include enforcement of U.S. laws
to prevent border trafficking relating to child pornography,
intellectual property rights violations, money laundering, and illegal
arms. Funding for these activities has been included in the Customs
general account.
Explanation of provision
Section 111 of H.R. 3129, as amended, would authorize $10 million for
Customs to carry out its program to combat on-line child sex predators.
Of that amount, $375,000 would be dedicated to the National Center for
Missing Children for the operation of its child pornography cyber
tipline.
Reason for change
With about 12 million children using the Internet unsupervised by
their parents, the Internet has provided fertile ground for sexual
predators to lure children into exploitive and abusive relationships and
to trade in child pornography. This legislation would provide Customs
with resources for the tools, technology, and manpower it needs in its
efforts to prevent child pornography and sexual exploitation. The
Committee expects that these efforts will include out-reach programs to
educate parents, children, and teachers. The Committee applauds Customs
for establishing the Cyber-smuggling Center and fully supports Customs
in its efforts to protect children from on-line predators.
SUBTITLE C--PERSONNEL PROVISIONS
Chapter 1--Overtime And Premium Pay of Officers of the Customs Service
Sec. 121. Correction relating to fiscal year cap
Present law
Section 5(c)(1) of the Act of February 13, 1911 (19 U.S.C. 267(c)(1))
states that the aggregate amount of a Customs officer's overtime pay,
including commuting compensation and premium pay, is $30,000.\2\
A Customs officer who receives overtime or premium pay (holidays and
night work) for time worked is prohibited from receiving compensation
for that work under any other provision of law. The Commissioner may
grant waivers to prevent excessive costs or to meet emergency
requirements of the Customs Service. Section 5(a)(1) of the Act of
February 13, 1911 (19 U.S.C. 267(a)(1)) outlines the general overtime
pay system for Customs officers. Basic overtime compensation for work
not regularly scheduled is provided as follows: (a) Work in excess of 8
hours per day or 40 hours per week at twice the basic hourly rate of
basic pay; (b) ``Callback'' pay at twice the basic hourly rate. An
officer will receive at least two hours of callback pay for any call
back of two hours of work or less, if the work begins at least one hour
after the end of any previously scheduled work and ends at least one
hour before the beginning of regularly scheduled work; and (c)
Compensation for the commute, in addition to callback time, at three
times the basic hourly rate; compensation for the commute is not payable
if the work does not begin within 16 hours of the Customs officer's last
regularly scheduled work assignment, or if the work begins within two
hours of the officer's next regularly scheduled work assignment.
\2\The fiscal year cap has been increased annually since October 1,
1997, from $25,000 to $30,000 (most recently by the FY 01 Treasury
Appropriations Act) over the objections of the Committee on Ways and
Means because it did not address overtime and premium pay reforms.
Explanation of provision
Section 121 of H.R. 3129, as amended, would amend section 5(c)(1) of
the Act of February 13, 1911 (19 U.S.C. 267(c)(1)) to remove premium pay
from the calculation of the $30,000 fiscal-year cap, thus increasing the
amount of overtime pay a Customs officer may receive, with no annual
limit on the amount of premium pay. The provision would also allow the
Commissioner the authority to waive the $30,000 fiscal-year cap to
prevent excessive costs or to meet emergencies, and to pay a Customs
officer for one work assignment that would result in the overtime pay of
that officer exceeding the $30,000 fiscal-year cap. This authority would
be granted only upon certification to the Chairmen of the House
Committee on Ways and Means, and the Senate Committee on Finance that
Customs has in operation a system that provides accurate and reliable
data on a daily basis on overtime and premium pay being paid to Customs
officers.
Reason for change
Administration of the fiscal-year cap has posed a considerable
challenge for Customs. Eliminating premium pay from the calculation of
the fiscal-year cap will facilitate Customs administration, as fewer
Customs officers will approach the level of the cap by working overtime
alone. Moreover, allowing each officer an unrestricted amount of premium
pay and applying the cap only to overtime pay will increase the earnings
of Customs inspectors. If an officer reaches the fiscal-year cap, the
provision would allow the Commissioner to pay that officer for one
additional work assignment that would result in the overtime pay of the
officer exceeding the cap. Thereafter, no additional overtime would be
assigned to that officer, except to meet emergency requirements of the
Customs Service. Under the National Inspectional Assignment Policy
(NIAP) and contracts negotiated with the National Treasury Employees
Union (NTEU), Customs has agreed to assign overtime to Customs officers
based on daily tracking of each officer's overtime- and premium-pay
earnings. Section 121 also requires that authority to exceed the cap by
one assignment will be granted to the Commissioner only upon
certification to the Chairmen of the House Committee on Ways and Means
and the Senate Committee on Finance that Customs has in operation a
system that provides accurate and reliable data on a daily basis on
overtime and premium pay that is being paid to each Customs officer.
Customs' officials estimate that based upon pre-emergency staffing
requirements, there have been several hundred inspectors who reached the
cap and who would thus benefit from an increase in the cap. Based upon
post-emergency staffing requirements from the heightened alert, that
estimate is now conservatively over 1,000 inspectors who would benefit
from raising the cap. Taking premium pay out of the cap would allow some
inspectors to earn as much as $5,000 more than currently allowed.
Sec. 122. Correction relating to overtime pay
Present law
On October 30, 1997, an arbitration ruling required the Customs
Service to pay overtime to a Customs officer for work not performed if
that officer was not permitted to work that time due to an
administrative error. An earlier arbitration ruling required Customs to
pay overtime to a Customs officer for work not performed if Customs had
prevented that officer from working right up to the fiscal year salary
cap, a practice Customs has in place to prevent an Anti-Deficiency Act
violation.
Explanation of provision
Section 122 of H.R. 1833, as amended, would prevent Customs from
paying overtime pay to Customs officers for work not actually performed.
However, this provision would not apply to payment of an award or
settlement under section 5596 of title 5, United States Code, section
6(d) of the Fair Labor Standards Act, or title VII of the Civil Rights
Act of 1964.
Reason for change
The Committee is concerned that three arbitral decisions require
Customs to pay overtime for work not performed. Specifically, as a
result of a decision by a labor arbitrator in August 1982, Customs is
required to pay overtime plus interest for hours not actually worked to
officers denied overtime assignments because they have reached the level
set by the port directors. The amount paid by Customs pursuant to the
arbitral decision equals the difference between the fiscal-year cap and
the level which the officer had reached at the time the port director
stopped assigning additional overtime to that officer. As a result of a
decision by a labor arbitrator in November 1993, Customs is required to
pay for overtime not actually worked to officers whose overtime is
inappropriately assigned to part-time employees. In yet another decision
by a labor arbitrator in October 1997, Customs is now required to pay
overtime to Customs officers for work not performed when the officer was
not assigned an overtime assignment due to an inadvertent administrative
error.
The current practice of paying overtime for work not performed
replaces the practice of providing the next comparable overtime
assignment to the officer who was inadvertently skipped over. In
addition, in testimony before the Subcommittee on Trade in May 1998, the
General Accounting Office (GAO) stated: ``Although we believed that
inspectors should be paid extra for working overtime, we recommend that
(1) the 1911 Act be amended so that inspector overtime would be more
directly linked to actual hours worked, and (2) Customs management focus
on achieving a more efficient use of overtime.'' U.S. Customs Service:
Oversight Issues, GAO/T GGD 97 107 (May 15, 1997). The provision would
clarify Congressional intent with regard to
overtime for Customs officers by preventing Customs from
paying overtime to officers for hours not actually worked. Customs would
achieve savings by prohibiting these payments which it has been required
to make since the 1982 arbitral decision.
It is the view of the Committee that Customs would achieve
considerable savings in prohibiting these payments, and these resources
would be better utilized by Customs in other areas. More importantly,
the change in law will correct an inequitable and unintended consequence
of the present law as interpreted by arbitration panels. The Committee
does not expect that this requirement will have a significant impact on
Customs' management of overtime or on Customs officers' ability to earn
overtime pay.
Customs has taken steps to alleviate this problem by recently
implementing the Customs Overtime and Scheduling System (COSS), which
currently tracks and monitors all scheduling, assignment of regular
hours, overtime, and premium hours for Customs officers. Under this
tracking system, Customs will be better able to monitor overtime and
premium hours to prevent situations that gave rise to officers receiving
overtime and premium pay for no work. However, the Committee believes
that this legislation is necessary to clarify that the appropriate
policy is to provide an additional assignment instead of overtime.
Finally, this reform is not intended to prevent awards or settlements
under the provisions of laws cited in this section.
Sec. 123. Correction relating to premium pay
Present law
Section 123(a). An arbitration ruling requires Customs to pay
officers for regularly scheduled premium pay hours even if the officer
subsequently takes sick or annual leave and does not actually work those
hours. The Omnibus Consolidated and Emergency Supplemental
Appropriations for FY 1999 (P.L. 105 277), permanently restricts Customs
from paying premium pay on Sundays to an employee if the employee has
not actually performed work on a Sunday.
Sec. 123(b). Section 5(b)(1) of the Act of February 13, 1911 (19
U.S.C. 267(b)(1)) provides that if an officer works: (1) the majority of
his or her hours between 3 p.m. and midnight, compensation equals the
basic hourly rate plus 15 percent of the basic hourly rate for the
entire eight-hour shift; (2) the majority of his or her hours between 11
p.m. and 8 a.m., compensation equals the basic hourly rate plus 20
percent for the entire eight hour shift; and (3) if the officer's
regularly scheduled work assignment falls between 7:30 p.m. and 3:30
a.m., compensation equals the basic hourly rate plus 15 percent for the
period from 7:30 p.m. to 11:30 p.m., and the basic hourly rate plus 20
percent for the period from 11:30 p.m. to 3:30 a.m.
For example, if a Customs officer is scheduled to work a shift that
starts at 12:00 noon and ends at 8 p.m., five of the eight hours of that
shift, or the majority of hours, occur during the 3 p.m. to 11 p.m.
night premium pay hours. Thus, the Customs officer is paid night pay (an
additional 15 percent) for all eight hours of the shift that starts at
noon.
Explanation of the provision
Sec. 123(a). This provision would prohibit Customs from paying
premium holiday pay to an employee if the employee has not actually
performed work during the time corresponding to such premium pay by
amending section 5(b)(4) of the Act of February 13, 1911 (19 U.S.C.
267(b)(4)). However, this provision would not apply to payment of an
award or settlement under section 5596 of title 5, United States Code,
section 6(d) of the Fair Labor Standards Act, or title VII of the Civil
rights Act of 1964. As with the restriction on payment of overtime pay
outlined in section 122, this provision would clarify Congressional
intent with regard to premium pay for Customs officers by preventing
Customs from paying premium pay to officers for hours not actually
worked.
Sec. 123(b). This provision would amend section 5(b)(1) of the Act of
February 13, 1911 (19 U.S.C. 267(b)(1)) to provide that a Customs
officer is paid premium night shift (``shift differential'') pay only
for shift differential hours worked. This provision also changes the
actual hours eligible for night time pay to between 5 p.m. and 6 a.m.,
except that for a regularly scheduled shift between 4 p.m. and midnight
or midnight and 8 a.m., the entire shift would be eligible for night pay
shift differential.
Under this legislation, if any hour of an officer's regularly
scheduled work hours occur between 5 p.m. and midnight, compensation
would equal the basic hourly rate plus at least 18 percent for those
hours only. If any work hours occur between midnight and 6 a.m.,
compensation would equal the basic hourly rate plus 25 percent for those
hours only. The bill also would allow for a Customs officer regularly
scheduled to work the shift from 4 p.m. and midnight to be paid at a
premium rate of at least 18 percent over his or her base salary for the
entire shift. The bill also would allow for a Customs officer regularly
scheduled to work the shift from midnight to 8 a.m. to be paid at a
premium rate of 25 percent over his or her base salary for the entire
shift. For example, a Customs officer working from noon to 8 p.m. would
earn night differential pay only between the hours of 5 p.m. and 8 p.m,
but would receive at least an 18 percent differential instead of the
current 15 percent.
Reason for change
Section 123(a). The Committee is greatly concerned that an arbitral
decision requires Customs to pay premium pay for hours not actually
worked. Specifically, due to the decision by a labor arbitrator in
September 1996, Customs is required to pay premium pay to officers for
regularly-scheduled premium pay hours even if the officer subsequently
fails to work those hours due to annual leave, sick leave, or National
Guard duty leave. Similar to the reform on payment of overtime pay
outlined in section 122, this provision would clarify Congressional
intent with regard to premium pay for Customs officers by preventing
Customs from paying premium pay to officers for hours not actually
worked. Finally, this reform is not intended to prevent awards or
settlements under the provisions of laws cited in this section.
Section 123(b). The Customs Officer Pay Reform Amendments, which was
part of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103 66),
greatly increased the number of available hours in which a Customs
Officer can earn premium pay for night work. COPRA also increased the 10
percent night differential compensation to 15 percent and 20 percent,
depending
on the time of day that the assignment is worked. Among
Federal employees, only Customs officers are compensated at a premium
pay rate of 15 percent or 20 percent of basic hourly pay for night work.
In fact, COPRA allows Customs to pay night differential premium payments
for 23 hours of the day (12 p.m. to 11 a.m.), rather than 12 hours of
the day (6 p.m. to 6 a.m.) as was previously the case under FEPA.
Premium pay for night work by most other Federal employees is provided
at a rate of 10 percent for the hours from 6 p.m. to 6 a.m. and is
available only for those hours worked during that period, not the entire
shift.
At the Subcommittee's legislative hearing on April 13, 1999, Mr.
Schindel testified that ``premium pay expenses for Customs, specifically
the work differential, substantially increased under COPRA.'' In fact
night shift differential increased from $51,000 in FY 1993 to $11.9
million in FY 1998. Mr. Schindel reached the same conclusion at the
Subcommittee's legislative hearing on July 17, 2001. A major reason for
this dramatic increase in premium pay for shift differential is that
COPRA increased the number of available hours where a Customs officer
could earn night differential. The Congressional intent of the COPRA was
to ensure that Customs officers' schedules met customer demand. A
Treasury Inspector General report concluded that Customs schedules do
correspond to its workload and to its customers' needs. Customs Officer
Pay Reform Amendments (COPRA), OIG 96 094 (September 13, 1996). However,
the report concluded that COPRA had caused a significant increase in
night differential spending, amounting to at least $6 million per year.
The report recommended: The Assistant Secretary (Enforcement) should
direct Customs to seek legislation that would lessen the number of hours
available for Customs officers to earn night differential and reduce the
night work differentials to a 10 percent premium on base pay. The change
to the COPRA should create a night differential payment package that
would more accurately reimburse Customs officers for hours actually
worked at night, as was done previously under FEPA. The provision would
clarify Congressional intent that night premiums be awarded only for
night work, correcting the anomaly that an officer can receive a night
premium for working at noon, namely the limitation that night-time pay
be for actual night-time hours worked.
Rather than adopt the report's recommendations in toto, the Committee
has chosen to address the inherent inequity of the current system which
provides night-time premium pay to employees working during daytime
hours. The bill would redistribute the savings generated by scaling back
the hours that are eligible for night-time premium pay so as to make the
legislation revenue neutral and overall inspector pay neutral. According
to calculations from Customs, the savings from Section 123 will be
sufficient to increase the night-time premium differential from 15% to
at least 18% (for hours worked before midnight) and from 20% to 25% (for
hours worked after midnight).
Customs officials testified at the markup on October 31, 2001, that
there would be no impact on operations as a result of these changes and
that all shifts would still be staffed. Also, given the current method
of assigning shifts by having inspectors bid on them, inspectors will
have the opportunity to seek different shifts depending upon their
personal preferences. Thus, an inspector who has been receiving
night-time premium pay for working a noon to 8:00 p.m. shift could seek
a later shift in order to continue to receive night time premium pay. At
the same time, inspectors working the most popular night shift (4:00
p.m. to midnight), which accounts for 48 percent of night shifts, would
receive a raise from a current 15% premium for each hour to at least
18%. Committee Members believe this is a more equitable method for
paying night-time premium pay than the existing system.
Sec. 124. Use of savings from payment of premium pay
Present law
No applicable section.
Explanation of the provision
This provision would require the Secretary of the Treasury to
calculate any savings created as a result of sections 122 and 123.
Customs would be required to use the savings to provide additional
overtime for enforcement purposes. The change in Section 123 to increase
the premium pay for customs officers for hours actually worked is
intended to offset the decrease in hours that the premium pay is
available.
Reason for change
The Committee wants to ensure that savings from sections 122 and 123
from this bill are used for paying higher premium pay to inspectors who
actually work night-time shifts.
Sec. 125. Effective date
Present law
No applicable section.
Explanation of the provision
The provision states that the section will be effective 15 days after
enactment.
Reason for change
The Committee anticipates that the provision will take effect in the
payment cycle after enactment.
Chapter 2--Miscellaneous Provisions
Sec. 131. Additional Customs Service officers for U.S.-Canada border
Present law
No applicable section.
Explanation of the provision
This provision earmarks $25 million and 285 new staff hires for
Customs to use at the U.S.-Canada border.
Reason for change
Additional earmark: Since the terrorist attack on the U.S. on
September 11th, Customs has continued to work under the highest level of
alert. Customs has apprehended terrorists in the past as they attempted
to go through the Northern Border with weaponry. Early reports are that
some of the September 11th terrorists also came through the Northern
Border. Moreover, many U.S. industries rely upon immediate delivery of
products from Canada in order to operate. Given also that Canada remains
the largest trading partner for the United States, it is clear that new
resources are needed to facilitate trade while protecting the border.
The Committee notes that the Administration provided the Customs Service
with no new hiring authority for staff from funds made available in the
emergency supplemental appropriations bill in 2001. Nevertheless,
Customs staff is continuing to work at the highest alert status during
the current emergency, and Customs staff must work markedly increased
overtime hours. New staff is needed particularly at the Northern Border
to insure that border security is maintained while facilitating trade.
`` Reverse Customs'' procedures: The Committee wishes to address the
inspection and control requirements of the border crossings along the
Northern Border. The Committee encourages the Administration, and the
Customs Service in particular, to explore an agreement with Canadian
officials to increase cooperation at border crossings and to station
customs officials from each government on the opposite side of the
border for the purpose of inspecting and clearing vehicles before they
cross the border--the so-called ``reverse customs'' process.
The Committee notes that Michigan/Canada border crossings at the
Ambassador Bridge and the Detroit Windsor Tunnel would be a good
location for a pilot project once an agreement between the United States
and Canada is reached. According to data derived from the Bridge and
Tunnel Operators Association, Michigan led the nation in U.S.-Canada
border crossings with over 2.1 million trucks and 11.1 million cars
crossing the border, with Ambassador Bridge and the Detroit-Windsor
Tunnel showing the highest car, truck, and other vehicular traffic
volumes through August 2001. It is estimated that over $1 billion in
trade crosses the Canada-U.S. border every day, with nearly half
crossing either the Ambassador or Blue Water Bridges in Michigan.
Such a pilot project could address increased security and safety
concerns in the aftermath of the terrorist attacks in the United States
on September 11, 2001, and ensure that potentially dangerous vehicles
would be stopped prior to embarking upon the Ambassador Bridge and
Detroit Windsor Tunnel structures. The Committee expects that U.S.
Customs, in consulting and coordinating with Canadian Customs, would
give great weight and sensitivity to sovereignty issues, laws, and
customs, while at the same time achieving a workable and effective
mechanism allowing Customs personnel to carry out their duties.
In addition, the Committee recommends continuation of the use of
automated, computerized inspection and commercial transaction systems by
Customs at border crossings and particularly at the Michigan ports of
entry, including but not limited to ACE, NCAP, NEXUS, and Port Pass. The
Committee believes that these systems can and should be fully utilized
even during this period of heightened security on all U.S. bridges,
tunnels, and other border crossings in the aftermath of the September
11th terrorist attack on the United States. However, in order to ensure
that the need for enhanced security at the ports of entry is maintained,
the Committee has authorized additional funding for new technologies and
systems to improve the ability of U.S. Customs to interdict dangerous
vehicles and terrorist threats to our bridges, ports, and personnel at
ports of entry.
The Commissioner of Customs should report to the Committee regarding
its implementation of the technology and pilot program initiatives set
forth in this report, with particular emphasis on its efforts to
coordinate the pilot program with Canadian Customs.
Sec. 132. Study and report relating to personnel practices of
the Customs Service
Present law
No applicable section.
Explanation of provision
Section 132 of H.R. 3129, as amended, requires Customs to conduct a
study of current personnel practices including: performance standards;
the effect and impact of the collective bargaining process on Customs
drug interdiction efforts; and a comparison of duty rotations policies
of Customs and other federal agencies employing similarly situated
personnel.
Reason for change
Under the collective bargaining agreement between Customs and the
National Treasury Employees' Union (NTEU), Customs cannot rotate a
Customs officer permanently or for temporary duty unless the officer
agrees to the change. In addition, the agreement specifies that the
union may bring to grievance any issue relating to the impact and
management of any management changes, including a management change
relating to drug enforcement, and any issues not included in the
collective bargaining agreement.
The Committee has been concerned that the union is able to
effectively thwart Customs drug interdiction efforts through bargaining
or the unwillingness to bargain. There have been a number of examples in
which the NTEU was able to delay negotiations on work conditions, to the
detriment of the ability to interdict contraband, including narcotics.
These examples included: (1) negotiations between the National Treasury
Employees Union (NTEU) and Customs since early 1995 in El Paso, Texas,
over work conditions at the three bridges between Mexico and El Paso
relating to the use of a very successful drug interdiction approach
called pre-primary roving for Canine Enforcement Officers and
Inspectors; (2) implementing certain shift work in Miami;
and (3) the percent of officers regularly scheduled to work
weekend shifts at the John F. Kennedy airport (JFK).
Shortly after the Subcommittee and Committee discussed these issues
at the 1998 mark-ups, Customs and the Union settled their differences on
the weekend shifts issues at JFK and El Paso. In addition, the Impasse
Panel issued a decision on the shift issue in Miami. As a result of
these developments, the Committee believes that many of the issues that
have adversely impacted Customs drug interdiction efforts have been
favorably resolved. However, the Committee believes that a study of the
effect and impact of the collective bargaining process on Customs drug
interdiction efforts is necessary to keep a watchful eye on this issue.
In addition, the Committee is concerned that Customs' lack of authority
in the past to rotate and temporarily assign officers may have adversely
impacted its drug interdiction efforts. Therefore, the Committee is
requiring that Customs conduct a comparison study of rotation policies
with similarly situated federal personnel which would enable both the
Committee and Customs to assess Customs rotation practices.
Sec. 133. Study and report relating to accounting and
auditing procedures of the Customs Service
Present law
No applicable section.
Explanation of the provision
This provision would require Customs to conduct a study to ensure
that appropriate training is being provided to personnel who are
responsible for financial auditing of importers. Customs would
specifically report on how its audit personnel protect the privacy and
trade secrets of importers.
Reason for change
The Committee has received many complaints from U.S. importers about
the specialized skill and knowledge base of auditors from the Customs
Service. As with all government enforcement, the skill of enforcement
officials is important in order to ensure that violations of law are not
overlooked but also to ensure that legitimate acts are not mistakenly
labeled illegal. Especially troubling are complaints that proprietary
business information is not being given the proper level of
confidentiality from disclosure. The Committee does not have sufficient
data to confirm or deny these complaints definitively and has rather
chosen to direct Customs to study and report on the procedures in place
to ensure that auditors are properly trained.
Sec. 134. Establishment and implementation of cost accounting
system; reports
Present law
No applicable section.
Explanation of the provision
Section 134 would mandate the imposition of a cost accounting system
in order for Customs to effectively explain its expenditures. Such a
system would provide compliance with the core financial system
requirements of the Joint Financial Management Improvement Program
(JFMIP), which is a joint and cooperative undertaking of the U.S.
Department of the Treasury, the General Accounting Office, the Office of
Management and Budget, and the Office of Personnel Management working in
cooperation with each other and other agencies to improve financial
management practices in government. That Program has statutory
authorization in the Budget and Accounting Procedures Act of 1950 (31
U.S.C. 65).
Reason for change
The Customs Service is currently unable to answer fundamental
questions about how it spends money. This fact was mentioned above in
the discussion of present law for Section 101. For example, Customs
states that it spends a certain amount of money on commercial
operations. The figure is not based upon the continual adding of various
commercial costs from all operations within Customs, such as the number
of people who actually processed entries of merchandise at specific
ports during a set period. Instead, the figure is based upon Customs
officials' belief that a set percentage of its work is always related to
commercial activities. That static percentage is based upon a no longer
available, ad hoc survey conducted by Customs several years ago. A
modern cost accounting system would allow Customs to accurately identify
the amount of money spent at specific locations, for specific functions
such as textile transshipment monitoring, searching for contraband, or
processing entries of merchandise.
Sec. 135. Study and report relating to timeliness of prospective rulings
Present law
No applicable section.
Explanation of the provision
This provision would require the Comptroller General to prepare a
report to determine whether Customs has improved its timeliness in
providing prospective rulings.
Reason for change
In light of oversight reports from the General Accounting Office and
complaints from the business community, the General Accounting Office is
directed to monitor and provide an update to its recent report in one
year on the progress of Customs in substantially decreasing the time it
takes to issue prospective rulings. The Committee had originally
proposed a strict deadline of 90-days for Customs to issue prospective
rulings. Because of the emergency currently facing
Customs, the draw upon its resources, and assurance from
officials from the new Administration to act on GAO's comments, a
mandatory deadline was dropped but will be revisited depending upon the
results of GAO's review.
Sec. 136. Study and report relating to Customs user fees
Present law
No applicable section.
Explanation of the provision
This provision would require the Comptroller General to prepare a
confidential report to determine whether current user fees are
appropriately set at a level commensurate with the service provided for
the fee. The Comptroller General is authorized to recommend the
appropriate level for customs user fees.
Reason for change
The Committee has already noted in the discussion at sections 101 and
134 the problem of a lack of reliable cost data from Customs. One
consequence of having inadequate data is that importer user fees may not
reflect the level of services provided for by the fee. Moreover, Customs
officials admit that there is no cost accounting system in place for
them to accurately track costs of providing services. For this reason,
this section should be read in conjunction with Section 134 requiring
Customs to implement a cost accounting system.
If the government buys a good or service at a price that purports to
be based upon the cost of that good or service, then the government
would expect a seller to provide adequate documentation to support that
cost basis. The government therefore should provide similar
justification of its costs especially when it requires importers to pay
fees ostensibly to cover services rendered. The inability of government
to justify the costs of its services to importers, while simultaneously
urging increases in fees, has reasonably led to concerns among importers
that the fee levels are no longer appropriate, may be inflated, and
could be raised without adequate justification. So long as reliable data
is not available, it will be difficult, if not impossible, to justify
the current level of fees, much less extensions or changes.
SUBTITLE D--TOOLS FOR FIGHTING TERRORISM
Sec. 141. Immunity for Customs officers that act in good faith
Present law
Currently, Customs officers are entitled to qualified immunity in
civil suits brought by persons, who were searched upon arrival in the
United States. Qualified immunity protects officers from liability if
they can establish that their actions did not violate any clearly
established constitutional or statutory rights.
Explanation of the provision
This section would protect Customs officers by providing them
immunity from lawsuits stemming from personal searches of people
entering the country so long as the officers conduct the searches in
good faith. The ``good faith'' standard has been used in other contexts
similar to this, as in 19 U.S.C. 507, for searches conducted by other
individuals at the direction of Customs officers. Under this amendment,
if Customs certifies in a lawsuit that the officer followed policy in
conducting the allegedly improper search, the court would then make a
finding of good faith immunity and would dismiss the suit against the
officer.
Reason for change
Customs officers have the important responsibility to search persons
arriving in the United States to prevent the introduction of contraband,
including dangerous items. Often, a personal search is the only way to
determine if a person is concealing contraband on or within their body.
There has been a large increase in the number of private lawsuits
against Customs officers by persons that have undergone personal
searches. Despite the large increase in suits against Customs officers,
almost every one of them are ultimately resolved in favor of the
officers (i.e., there is a finding of qualified immunity).
Customs officers have been subject to an increasing number of
lawsuits by those searched at the border. In all but fewer than five of
these dozens of cases in the last several years, the courts have found
in the favor of the Customs officers. Nonetheless, each case tends to
hinge on a lengthy, fact-specific trial, potentially distracting the
officers from their duties and creating a chilling effect among other
officers. Though Customs officers are winning these cases, they must
undergo discovery, depositions, and trial, even when those searches have
uncovered drugs and other smuggled items on or inside the plaintiff.
These officers may face financial burdens as well, as personal property
such as cars and real estate may be covered by liens while the
litigation is pending. Customs' experience is that it takes years to get
decisions on qualified immunity for its officers, even in cases where
the officer followed personal search policy and did nothing wrong.
As Customs searches greater numbers of passengers to detect
terrorists, there is a potential for Customs officers to become subject
to an increasing number of lawsuits alleging ethnic or religious
profiling. While officers are not permitted to discriminate on the basis
of unconstitutional criteria, this amendment provides an avenue for
frivolous and questionable suits to be resolved at an early stage.
Accordingly, the amendment would have the effect of streamlining the
existing process for judicial determinations on whether Customs officers
are entitled to immunity from lawsuits.
The amendment introduces a single standard--good faith--for courts to
rely on to speedily dispose of unmeritorious lawsuits at an early stage.
The Committee believes that the best (though not exclusive) measure of
whether a Customs officer conducts a personal search in good faith is
whether the officer follows established Customs policy. It is important
to note that
even with this amendment, truly aggrieved plaintiffs would
continue to have appropriate remedies to obtain redress for any improper
searches as they could obtain money damages under the Federal Tort
Claims Act (FTCA) against the government for tortious searches; obtain
injunctive relief for unconstitutional policies; or if the officer acted
in bad faith and in violation of clearly established constitutional or
statutory rights, recover against the officer personally (because the
officer would not be immune from personal liability).
Sec. 142. Emergency adjustments to offices, ports of entry,
or staffing of the Customs Service
Present law
Present law places numerous restrictions on and, in some instances,
precludes the Secretary of the Treasury or Customs from making any
adjustments to ports and staff. 19 U.S.C. 1318 requires a Presidential
proclamation of an emergency and authorization to the Secretary of the
Treasury only to extend the time for performance of legally required
acts during an emergency. No other emergency powers statute for Customs
exists.
Explanation of the provision
This provision would permit the Secretary of the Treasury, if the
President declares a national emergency or if necessary to address
specific threats to human life or national interests, to eliminate,
consolidate, or relocate Customs ports and offices and to alter staffing
levels, services rendered and hours of operations at those locations. In
addition, the amendment would permit the Commissioner of Customs, when
necessary to address threats to human life or national interests, to
close temporarily any Customs office or port or take any other lesser
action necessary to respond to the specific threat. The Secretary or the
Commissioner would be required to notify Congress of any action taken
under this proposal within 72 hours.
Reason for change
This provision would loosen restrictions on Customs' ability to alter
the location, hours of operation and staffing at ports in response to
terrorist threats. Such restrictions unduly limit Customs' ability to
move personnel to locations where they can most effectively be used to
reduce or respond to terrorist threats. They also force Customs to
maintain offices and personnel in locations that have very little
international traffic and where they cannot be used effectively to
address threats of terrorism. The terrorist attack on the United States
on September 11th resulted in the need for changes in border staffing
and security. The Administration requested these changes to law in order
to give officials flexibility in providing for border security during
the current and future emergencies.
Sec. 143. Mandatory advanced electronic information for cargo
and passengers
Present law
Currently, commercial carriers bringing passengers or cargo into or
out of the country have no obligation to provide Customs with such
information in advance.
Explanation of the provision
This provision would require every air, land, or water-based
commercial carrier to file an electronic manifest describing all
passengers with Customs before entering or leaving the country. There is
a similar requirement for cargo entering the country. Specific
information required in the advanced manifest system would be developed
by Treasury in regulations.
Reason for change
Advanced electronic manifests will significantly enhance Customs'
ability to identify high-risk passengers and cargo and will ensure that
suspected terrorists or those on law enforcement or terrorist watch
lists are identified before entering or leaving the United States. The
passenger identification requirement will provide Customs with, among
other things, the name and passport number of every passenger in advance
of a carrier's attempt to enter or leave the United States. Similarly,
the cargo manifest requirement provides Customs with a wide range of
important information about all cargo, including those involved in its
shipment. This proposal builds upon a successful voluntary program that
Customs has already with the airlines. While all commercial carriers
must provide this information to Customs at some point, this proposal
would require it prior to entry or departure and electronically for
passenger carriers. The amendment makes a similar requirement for cargo
entering the country.
The Committee received many questions from carriers as to its
concerns that Customs does not currently have the infrastructure or
procedures to implement in all cases advanced electronic manifesting.
The Committee is aware of the current state of the system and expects
the Secretary of the Treasury to construct both infrastructure and
procedures to implement these requirements by means of regulations. The
current Customs computer system would be unable to handle the increased
electronic information contemplated by these new provisions. In this
regard, the full funding of the ACE computer system is all the more
important to allow Treasury and Customs to proceed quickly.
The Committee intends the Treasury Department to promulgate
regulations implementing the advance reporting requirements of this
section after consulting with various component members of the
transportation industry. This should occur in conjunction with the
design and development of the ACE computer system, which is intended to
accommodate the new advanced reporting information. Further, the
Committee expects the Treasury Department to engage in a regulation
making process that will take into account, and accommodate to the
extent reasonable, standard commercial practices. Such regulations
should appropriately reflect the distinct differences among trucking,
rail, vessel, air and other transportation entities while advancing the
government's need to obtain the manifest information in a timely manner.
Sec. 144. Border search authority for certain contraband in
outbound mail
Present law
Although Customs currently searches all inbound mail, and although it
searches outbound
mail sent via private carriers, outbound mail carried by the
Postal Service is not subject to search.
Explanation of the provision
This proposal would enable Customs officers to search outbound U.S.
mail for unreported monetary instruments, weapons of mass destruction,
firearms, and other contraband used by terrorists. Because Customs does
not inspect outbound mail carried by the Postal Service, millions of
packages mailed out of the United States, some weighing many pounds and
capable of containing dangerous items such as high explosives, illegally
obtained cash, or biological agents, are free from any Customs
inspection.
This new section would provide Customs with the same authority that
it has to search incoming mail. Specifically, the bill would authorize
searches of outbound non-letter class packages. Letter-class outbound
mail could be searched upon reasonable suspicion that it contained
firearms, monetary instruments (checks or cash), or several other
categories of dangerous materials and other merchandise subject to the
laws enforced by Customs. However, reading of mail would not be
authorized absent Customs officers obtaining a search warrant or
consent.
Reason for change
Often the smuggling of weapons, drugs, or other contraband is only
half of an illegal operation. The other half consists of the outbound
smuggling of unreported money that helps finance the illegal activity.
The current government investigation into the activities of the
terrorists responsible for the attack of September 11th is heavily
reliant upon the tracing of money that helped finance the attack. Long
before September 11th, government investigators have known that drug
money frequently leaves the country and helps foreign drug sellers
continue their operations. Tracing the money helps bring illegal
operators to justice. It is therefore critical that Customs have the
authority to search outbound mail.
The Committee notes that Customs currently searches outbound
envelopes and cargo shipped via private express companies, but there
have been doubts by some that Customs has the authority to search
outbound mail sent via the U.S. Postal Service. It is the intention of
the Committee to make an unambiguous declaration and clarification of
the present law to the effect that the U.S. Customs Service has and must
have access to search all outbound mail. Due regard for privacy rights
of individuals is addressed through the requirement of probable cause
and a search warrant or consent in the event that letter class mail
needs to be read.
Sec. 145. Authorization of appropriations for reestablishment
of Customs operations in New York City
Present law
No applicable section.
Explanation of the provision
On September 11, 2001, destruction of the World Trade Center complex
destroyed substantial operations of the U.S. Customs Service. This
provision authorizes funds to reestablish those operations.
Reason for change
Textile transshipment operations are specifically mentioned as
needing reestablishment given the importance of that work to the import
sensitive textile and apparel manufacturers in the United States.
SUBTITLE E--TEXTILE TRANSSHIPMENT PROVISIONS
Sec. 151. GAO Audit of textile transshipment monitoring by
Customs Service
Present law
No applicable section.
Explanation of the provision
This provision would direct the Comptroller General to conduct an
audit of the systems at the Customs Service to monitor and enforce
textile transshipment. The Comptroller General would report on
recommendations for improvements.
Reason for change
The Committee continues to hear complaints about textile goods
entering the country that have been transshipped, meaning that an
importer has entered the goods with an incorrect declaration for the
purpose of obtaining entry or a lower duty. The Committee is aware that
Customs has ongoing operations to monitor and enforce textile
transshipment, and many allegations may already be under investigation.
A report from the Comptroller will assist the Committee in evaluating
Customs' enforcement.
Sec. 152. Authorization of appropriations for textile
transshipment enforcement operations
Present law
No applicable section.
Explanation of the provision
This provision would authorize $9,500,000 for FY 2002 to the Customs
Service for the purpose of enhancing its textile transshipment
enforcement operations. This amount would be in addition to Customs'
base authorization and the authorization to reestablish the destroyed
textile monitoring and enforcement operations at the World Trade Center.
Reason for change
The Committee wishes to increase the level of funding for monitoring
and enforcement of textile transshipment to ensure every effort is made
to control imports according to present law.
Sec. 153. Implementation of the African Growth and Opportunity Act
Present law
No applicable section.
Explanation of the provision
The provision would earmark approximately $1.3 million within
Customs' budget for selected activities related to providing technical
assistance to help sub-Saharan African countries develop and implement
effective visa and anti-transshipment systems as required by the African
Growth and Opportunity Act (title I of Public Law 106 200).
Reason for change
Congress intended for sub-Saharan countries to receive benefits in
the African Growth and Opportunity Act which passed in the 106th
Congress. Due to the lack of experience and infrastructure in many
African countries, however, these countries are experiencing difficulty
in taking advantage of the Act and its benefits. The Committee,
therefore, wishes Customs to provide technical assistance to these
countries.
TITLE II--OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
Sec. 201. Authorization of appropriations
Present law
The statutory authority for budget authorization for the Office of
the United States Trade Representative is section 141(g)(1) of the Trade
Act of 1974 (19 U.S.C. 2171(g)(1)). The most recent authorization of
appropriations for USTR was under section 101 of the Customs and Trade
Act of 1990 [P.L. 101 382]. Under 19 U.S.C. 2171, Congress has adopted a
two-year authorization process to provide USTR with guidance as it plans
its budget as well as guidance from the Committee for the appropriation
process.
Explanation of the provision
This provision authorizes $30,000,000 for FY 2002 and $31,000,000 for
FY 2003. The provision requires submission of out-of-year budget
projections to the Ways and Means and Finance Committees. In light of
the substantial increase in trade negotiation work to be conducted by
USTR and the associated need for consultations with Congress, this
provision would authorize the addition of two individuals to assist the
office of Congressional Affairs.
Reason for change
The Committee recognizes that USTR needs increased budget
authorization to meet its expenses and hire new employees. The
legislation authorizes the full amount of the President's budget request
for USTR. The Committee wants to be sure USTR has enough resources so
that the World Trade Organization (WTO) negotiations will successfully
open trade in favor of the interests of the United States.
TITLE III--UNITED STATES INTERNATIONAL TRADE COMMISSION
Sec. 301. Authorization of appropriations
Present law
The statutory authority for budget authorization for the
International Trade Commission is section 330(e)(2)(A) of the Tariff Act
of 1930 (19 U.S.C. 1330(e)(2)(A)). The most recent authorization of
appropriations for the ITC was under section 101 of the Customs and
Trade Act of 1990 [P.L. 101 382]. Under 19 U.S.C. 1330, Congress has
adopted a two-year authorization process to provide the ITC with
guidance as it plans its budget as well as guidance from the Committees
for the appropriation process.
Explanation of the provision
This provision authorizes $51,400,000 for FY 2002 and $53,400,000 for
FY 2003. The provision requires submission of out-of-year budget
projections to the Ways and Means and Finance Committees.
Reason for change
The Committee recognizes that the ITC needs increased budget
authorization to meet the increased workload. The legislation authorizes
the full amount of the President's budget request for the ITC.
TITLE IV--OTHER TRADE PROVISIONS
Sec. 401. Increase in aggregate value of articles exempt from
duty acquired abroad by United States residents
Present law
The Harmonized Tariff Schedule at subheading 9804.00.65 currently
provides a $400 duty exemption for travelers returning from abroad.
Explanation of the provision
The provision would increase the current $400 duty exemption to $800.
Reason for change
The current duty exemption of $400 has been in place since 1983 and
after inflation no longer reflects the same level of buying power. An
increase is therefore in order.
Sec. 402. Regulatory audit procedures
Present law
Section 509 of the Tariff Act of 1930 (19 U.S.C. 1509) provides the
authority for Customs to audit persons making entry of merchandise into
the U.S. In the course of such audit, Customs auditors may identify
discrepancies, including underpayments of duties. However, if there also
are overpayments, there is no requirement that such overpayments be
offset against the underpayments if the underlying entry has been
liquidated.
Explanation of the provision
This provision would require that when conducting an audit, Customs
must recognize and offset overpayments and overdeclarations of duties,
quantities and values against underpayments and underdeclarations. As an
example, if during an audit Customs finds that an importer has underpaid
duties associated with one entry of merchandise by $100 but has also
overpaid duties from another entry of merchandise by $25, then any
assessment by Customs must be the difference of $75.
Reason for change
A government audit should be an even-handed and neutral evaluation of
a person's compliance with the law. The government should treat
overpayments/overdeclarations and underpayments/ underdeclarations
equally, and if both are found during an audit, they should be used to
offset each other. The Committee redrafted this provision on the basis
of concerns from Customs. It is the Committee's intention that this
provision shall not affect in any way Customs' current authority to
define an audit's scope, time period, and methodology.
III. VOTES OF THE COMMITTEE
In compliance with clause 3(b) of rule XIII of the Rules of the House
of Representatives, the following statements are made concerning the
votes of the Committee on Ways and Means in its consideration of the
bill, H.R. 3129.
MOTION TO REPORT THE BILL
The bill, H.R. 3129, as amended, was ordered favorably reported by
voice vote (with a quorum being present).
VOTES ON AMENDMENTS
The Chairman's amendment in the nature of a substitute was agreed to
by a rollcall vote of 20 yeas to 14 nays. The vote was as follows:
Representative Yea Nay Present Representative Yea Nay Present
Mr. Thomas X Mr. Rangel
Mr. Crane X Mr. Stark X
Mr. Shaw X Mr. Matsui X
Mrs. Johnson X Mr. Coyne
Mr. Houghton Mr. Levin X
Mr. Herger X Mr. Cardin X
Mr. McCrery Mr. McDermott X
Mr. Camp X Mr. Kleczka X
Mr. Ramstad X Mr. Lewis (GA) X
Mr. Nussle X Mr. Neal X
Mr. Johnson X Mr. McNulty
Ms. Dunn Mr. Jefferson X
Mr. Collins X Mr. Tanner X
Mr. Portman X Mr. Becerra X
Mr. English X Mrs. Thurman X
Mr. Watkins X Mr. Doggett X
Mr. Hayworth X Mr. Pomeroy X
Mr. Weller X
Mr. Hulshof X
Mr. McInnis
Mr. Lewis (KY) X
Mr. Foley X
Mr. Brady X
Mr. Ryan X
A rollcall vote was conducted on the following amendment to the
Chairman's amendment in the nature of a substitute:
An amendment by Mr. Stark on behalf of himself and Mr. Rangel, which
would strike sections 122 and 123, correcting overtime and premium pay,
was defeated by a rollcall vote of 13 yeas to 20 nays. The vote was as
follows:
Representative Yea Nay Present Representative Yea Nay Present
Mr. Thomas X Mr. Rangel
Mr. Crane X Mr. Stark X
Mr. Shaw X Mr. Matsui X
Mrs. Johnson X Mr. Coyne
Mr. Houghton Mr. Levin X
Mr. Herger X Mr. Cardin X
Mr. McCrery Mr. McDermott X
Mr. Camp X Mr. Kleczka
Mr. Ramstad X Mr. Lewis (GA) X
Mr. Nussle X Mr. Neal X
Mr. Johnson X Mr. McNulty
Ms. Dunn Mr. Jefferson X
Mr. Collins X Mr. Tanner X
Mr. Portman X Mr. Becerra X
Mr. English X Mrs. Thurman X
Mr. Watkins X Mr. Doggett X
Mr. Hayworth X Mr. Pomeroy X
Mr. Weller X
Mr. Hulshof X
Mr. McInnis
Mr. Lewis (KY) X
Mr. Foley X
Mr. Brady X
Mr. Ryan X
PROCEDURAL MOTIONS
A rollcall vote was conducted on a motion by Mr. Crane pursuant to
clause 1 of rule 22 of the Rules of the House that the Committee
authorize the Chairman to offer such motions as may be necessary in the
House to go to conference with the Senate on the bill H.R. 3129 or a
similar Senate bill. The motion was agreed to by a vote of 19 yeas to 1
nay, and 2 voting present. The vote was as follows:
Representative Yea Nay Present Representative Yea Nay Present
Mr. Thomas X Mr. Rangel
Mr. Crane X Mr. Stark
Mr. Shaw X Mr. Matsui
Mrs. Johnson X Mr. Coyne
Mr. Houghton Mr. Levin
Mr. Herger X Mr. Cardin X
Mr. McCrery Mr. McDermott
Mr. Camp X Mr. Kleczka X
Mr. Ramstad X Mr. Lewis (GA)
Mr. Nussle X Mr. Neal
Mr. Johnson X Mr. McNulty
Ms. Dunn Mr. Jefferson
Mr. Collins X Mr. Tanner
Mr. Portman X Mr. Becerra X
Mr. English X Mrs. Thurman
Mr. Watkins X Mr. Doggett
Mr. Hayworth X Mr. Pomeroy
Mr. Weller X
Mr. Hulshof X
Mr. McInnis
Mr. Lewis (KY) X
Mr. Foley
Mr. Brady X
Mr. Ryan X
IV. BUDGET EFFECTS
A. COMMITTEE ESTIMATE OF BUDGETARY EFFECTS
In compliance with clause 3(d)(2) of rule XIII of the Rules of the
House of Representatives, the following statement is made concerning the
effects on the budget of H.R. 3129, as reported: The Committee agrees
with the estimate prepared by CBO which is included below.
B. STATEMENT REGARDING NEW BUDGET AUTHORITY AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives, the Committee states that enactment of H.R.
3129 would diminish duty revenues by $6 million per year as a result of
the increase in the duty exemption for travelers from abroad from $400
to $800.
C. COST ESTIMATE PREPARED BY THE CONGRESSIONAL BUDGET OFFICE
In compliance with clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, requiring a cost estimate prepared by the
Congressional Budget Office, the following report prepared by CBO is
provided.
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 20, 2001.
Hon. William ``Bill'' M. Thomas, Chairman, Committee on Ways and Means,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has prepared the
enclosed cost estimate for H.R. 3129, the Customs Border Security Act of
2001.
If you wish further details on this estimate, we will be pleased to
provide them. The CBO staff contact is Mark Grabowicz.
Sincerely,
Steven Lieberman
(For Dan L. Crippen, Director).
Enclosure.
H.R. 3129--Customs Border Security Act of 2001
Summary: H.R. 3129 would authorize appropriations for 2002 and 2003
for the U.S. Customs Service, the Office of the U.S. Trade
Representative, and the International Trade Commission. The
authorizations for the Customs Service would include funds for salaries
and expenses, its Automated Commercial Environment (ACE) computer
system, air and marine interdiction, reestablishment of Customs
operations in New York City, and a program to prevent child pornography.
This legislation would increase the personal duty exemption for
travelers entering the United States. The bill also would make several
changes to the current laws relating to overtime and premium pay for
Customs officers. Finally, H.R. 3129 would direct the General Accounting
Office (GAO) to prepare three reports on various Customs issues.
Because an appropriation for fiscal year 2002 for the Customs Service
has already been enacted, H.R. 3129 would have a relatively small effect
on spending in that year. CBO estimates that implementing H.R. 3129
would cost about $2.9 billion over the 2002 2006 period, assuming
appropriation of the authorized and estimated amounts. (About $2.8
billion of this total would be spending for the Customs Service.) We
estimate that enacting H.R. 3129 also would decrease revenues by about
$4 million annually because of the increased personal duty exemption.
Finally, the bill could have a negligible net impact on direct spending
for overtime and premium pay for Customs officers. Because the bill
would affect revenues and direct spending, pay-as-you-go procedures
would apply.
H.R. 3129 would impose private-sector mandates, as defined by the
Unfunded Mandates Reform Act (UMRA), on certain land, air, and vessel
carriers. CBO estimates that the total direct cost of those mandates
would fall below the annual threshold established by UMRA for
private-sector mandates ($113 million in 2001, adjusted annually for
inflation). The bill contains no intergovernmental mandates as defined
in UMRA and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated budgetary
impact of H.R. 3129 is shown the following table. The costs of this
legislation fall within budget functions 150 (international affairs),
750 (administration of justice), and 800 (general government).
By fiscal year, in millions of dollars--
2002 2003 2004 2005 2006
SPENDING SUBJECT TO APPROPRIATION
Spending under current law: 2,767 0 0 0 0
Proposed changes: 107 2,825 0 0 0
Spending under H.R. 3129: 2,874 2,825 0 0 0
CHANGES IN REVENUES
Increased personal duty exemption: Estimated revenues -4 -4 -4 -4 -4
Notes: 1. The 2002 level is the amount appropriated for that year for the Customs Service, the Office of the United States Trade Representative, and the International Trade Commission. 2. For fiscal year 2002, most of the increased funding provided by H.R. 3129 would be for reestablishment of customs operations in New York City. 3. H.R. 3129 could also affect direct spending, but CBO estimates that any such effects would be less than $500,000 annually.
Basis of estimate
Assuming appropriation of the necessary amounts, CBO estimates that
implementing the bill would cost about $2.9 billion over the 2002 2006
period. (About $2.8 billion of this total would be for spending by the
Customs Service.) We estimate that enacting H.R. 3129 also would
decrease revenues by about $4 million annually because of the increased
personal duty exemption for travelers entering the United States.
Enacting the bill could affect direct spending, but we estimate that any
effects would be less than $500,000 annually.
Spending subject to appropriation
For this estimate, CBO assumes that the amounts authorized by the
bill will be appropriated near the start of each fiscal year and that
outlays generally will follow historical spending rates for the
authorized activities or for similar programs.
Based on information from the Customs Service, CBO estimates that it
would cost roughly $100 million over the 2002 2004 period to reestablish
its operations in New York City. The agency's main facility in lower
Manhattan, which housed 800 employees and contained several
laboratories, was destroyed by the terrorist attacks on September 11,
2001. Funds would be used mostly to equip new office space for Customs
employees and to replace the materials testing and crime investigation
laboratories that were destroyed. Based on information from GAO, we
estimate that the three reports required by the bill would cost about $1
million in 2002.
Revenues
H.R. 3129 would increase the personal-duty exemption for persons
entering the United States from $400 to $800. This provision would
increase the amount of goods that travelers from abroad could bring in
free of duty. Based on information from the Customs Service, CBO
estimates that this provision would decrease revenues by about $4
million each year.
Direct spending
The provisions of H.R. 3129 that modify overtime and premium pay for
Customs officers could affect direct spending since such costs are paid
from funds not subject to annual appropriation. Some of the bill's
provisions could increase these personnel costs, while other provisions
would probably yield savings. CBO estimates that the net effect of H.R.
3129 on direct spending for overtime and premium pay would be less than
$500,000 a year.
Pay-as-you-go considerations: The Balanced Budget and Emergency
Deficit Control Act sets up pay-as-you-go procedures for legislation
affecting direct spending or receipts. The changes in outlays and
revenues that would be subject to pay-as-you-go procedures are shown in
the following table. For the purposes of pay-as-you-go procedures, only
the effects in the budget year and the succeeding four years are
counted.
By fiscal year in millions of dollars--
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Changes in outlays 0 0 0 0 0 0 0 0 0 0
Changes in receipts -4 -4 -4 -4 -4 -4 -4 -4 -4 -4
Estimated impact on State, local, and tribal governments: H.R. 3129
contains no intergovernmental mandates as defined in UMRA and would
impose no costs on state, local, or tribal governments.
Estimated impact on the private sector: H.R. 3129 would impose
private-sector mandates, as defined by UMRA, on certain land, air, and
vessel carriers seeking approval from the U.S. Customs Service for entry
into the United States or for clearance to proceed from a port or place
in the United States. The bill would require each land, air, or vessel
carrier to provide by electronic transmission cargo manifest information
in advance of such entry or clearance. The bill also would require such
carriers with passengers arriving or departing the United States to
provide by electronic transmission certain passenger and crew member
manifest information in advance of such entry or clearance. According to
the U.S. Customs Service, all U.S. air carriers and many cargo vessels
currently provide such information on a voluntary basis. Based on
information from representatives of the transportation industry, CBO
estimates that the total direct cost to comply with mandates in the bill
would fall below the annual threshold established by UMRA for
private-sector mandates ($113 million in 2001, adjusted annually for
inflation).
Estimate prepared by: Federal spending: Mark Grabowicz; Federal
revenues: Erin Whitaker; impact on State, local, and tribal governments:
Victoria Heid Hall; impact on the private sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant Director
for Budget Analysis; G. Thomas Woodward, Assistant Director for Tax
Analysis.
V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE
A. COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
With respect to clause 3(c)(1) of rule XIII of the Rules of the House
of Representatives (relating to oversight findings), the Committee,
based on public hearing testimony and information from the
Administration, concluded that it is appropriate and timely to consider
the resolution as reported.
B. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee advises that the Administration has in
place program goals and objectives, which have been reviewed by the
Committee. H.R. 3129 addresses several items by way of studies and
reports for the purpose of evaluating whether Customs is meetings its
goals and objectives.
C. CONSTITUTIONAL AUTHORITY STATEMENT
With respect to clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, relating to Constitutional Authority, the Committee
states that the Committee's action in reporting the bill is derived from
Article 1 of the Constitution, Section 8 (``The Congress shall have
power to lay and collect taxes, duties, imposts and excises, to pay the
debts and to provide for * * * the general Welfare of the United
States.'')
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3(e) of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as
reported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman):
SECTION 301 OF THE CUSTOMS PROCEDURAL REFORM AND SIMPLIFICATION ACT OF
1978
Sec. 301. (a)(1) * * *
* * * * * * *
(3) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the Commissioner of Customs shall submit to the Committee on Ways and
Means of the House of Representatives and the Committee on Finance of
the Senate the projected amount of funds for the succeeding fiscal year
that will be necessary for the operations of the Customs Service as
provided for in subsection (b).
(b) Authorization of Appropriations.--
(1) For noncommercial operations.--There are authorized to be
appropriated for the salaries and expenses of the Customs Service that
are incurred in noncommercial operations not to exceed the following:
(A) $516,217,000 for fiscal year 1991.
(B) $542,091,000 for fiscal year 1992.
(A) $886,513,000 for fiscal year 2002.
(B) $909,471,000 for fiscal year 2003.
(2) For commercial operations.--(A) There are authorized to be
appropriated for the salaries and expenses of the Customs Service that
are incurred in commercial operations not less than the following:
(i) $672,021,000 for fiscal year 1991.
(ii) $705,793,000 for fiscal year 1992.
(i) $1,603,482,000 for fiscal year 2002.
(ii) $1,645,009,000 for fiscal year 2003.
* * * * * * *
(3) For air interdiction.--There are authorized to be appropriated
for the operation (including salaries and expenses) and maintenance of
the air interdiction program of the Customs Service not to exceed the
following:
(A) $143,047,000 for fiscal year 1991.
(B) $150,199,000 for fiscal year 1992.
(A) $181,860,000 for fiscal year 2002.
(B) $186,570,000 for fiscal year 2003.
SECTION 5 OF THE ACT OF FEBRUARY 13, 1911
AN ACT To diminish the expense of proceedings on appeal and
writ of error or of certiorari
SEC. 5. OVERTIME AND PREMIUM PAY FOR CUSTOMS OFFICERS.
(a) Overtime Pay.--
(1) In general.--Subject to paragraph (2) and subsection (c), a
customs officer who is officially assigned to perform work in excess of
40 hours in the administrative workweek of the officer or in excess of 8
hours in a day shall be compensated for that work at an hourly rate of
pay that is equal to 2 times the hourly rate of the basic pay of the
officer. Overtime pay provided under this subsection shall not be paid
to any customs officer unless such officer actually performed work
during the time corresponding to such overtime pay. The preceding
sentence shall not apply with respect to the payment of an award or
settlement to a customs officer who was unable to perform overtime work
as a result of a personnel action in violation of section 5596 of title
5, United States Code, section 6(d) of the Fair Labor Standards Act of
1938, or title VII of the Civil Rights Act of 1964. For purposes of this
paragraph, the hourly rate of basic pay for a customs officer does not
include any premium pay provided for under subsection (b).
* * * * * * *
(b) Premium Pay for Customs Officers.--
(1) Night work differential.--
(A) 3 p.m. to midnight shiftwork.--If the majority of the hours of
regularly scheduled work of a customs officer occurs during the period
beginning at 3 p.m. and ending at 12 a.m., the officer is entitled to
pay for work during such period (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of basic pay plus premium
pay amounting to 15 percent of that basic rate.
(B) 11 p.m. to 8 a.m. shiftwork.--If the majority of the hours of
regularly scheduled work of a customs officer occurs during the period
beginning at 11 p.m. and ending at 8 a.m., the officer is entitled to
pay for work during such period (except for work to which paragraph (2)
or (3) applies) at the officer's hourly rate of basic pay plus premium
pay amounting to 20 percent of that basic rate.
(C) 7:30 p.m. to 3:30 a.m. shiftwork.--If the regularly scheduled
work assignment of a customs officer is 7:30 p.m. to 3:30 a.m., the
officer is entitled to pay for work during such period (except for work
to which paragraph (2) or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 15 percent of that basic rate
for the period from 7:30 p.m. to 11:30 p.m. and at the officer's hourly
rate of basic pay plus premium pay amounting to 20 percent of that basic
rate for the period from 11:30 p.m. to 3:30 a.m.
(1) Night work differential.--
(A) 5 p.m. to midnight.--(i) If any hours of regularly scheduled
work of a customs officer occur during the hours
of 5 p.m. and 12 a.m., the officer is entitled to pay for such
hours of work (except for work to which paragraph (2) or (3) applies) at
the officer's hourly rate of basic pay plus premium pay amounting to not
less than 18 percent of that basic rate.
(ii) If the regularly scheduled work of a customs officer is 4 p.m.
to 12:00 a.m., the officer is entitled to pay for work during such
period (except for work to which paragraph (2) or (3) applies) at the
officer's hourly rate of basic pay plus premium pay amounting to not
less than 18 percent of that basic rate.
(B) Midnight to 6 a.m.--(i) If any hours of regularly scheduled work
of a customs officer occur during the hours of 12 a.m. and 6 a.m., the
officer is entitled to pay for such hours of work (except for work to
which paragraph (2) or (3) applies) at the officer's hourly rate of
basic pay plus premium pay amounting to 25 percent of that basic rate.
(ii) If the regularly scheduled work of a customs officer is 12 a.m.
to 8:00 a.m., the officer is entitled to pay for work during such period
(except for work to which paragraph (2) or (3) applies) at the officer's
hourly rate of basic pay plus premium pay amounting to 25 percent of
that basic rate.
* * * * * * *
(4) Treatment of premium pay.--Premium pay provided for under this
subsection may not be treated as being overtime pay or compensation for
any purpose. Premium pay provided under this subsection shall not be
paid to any customs officer unless such officer actually performed work
during the time corresponding to such premium pay. The preceding
sentence shall not apply with respect to the payment of an award or
settlement to a customs officer who was unable to perform work during
the time described in the preceding sentence as a result of a personnel
action in violation of section 5596 of title 5, United States Code,
section 6(d) of the Fair Labor Standards Act of 1938, or title VII of
the Civil Rights Act of 1964.
(c) Limitations.--
(1) Fiscal year cap.--The aggregate of overtime pay under subsection
(a) (including commuting compensation under subsection (a)(2)(B)) and
premium pay under subsection (b) that a customs officer may be paid in
any fiscal year may not exceed $25,000; except that the Commissioner of
Customs or his designee may waive this limitation in individual cases in
order to prevent excessive costs or to meet emergency requirements of
the Customs Service.
(1) Fiscal year cap.--The aggregate of overtime pay under subsection
(a) (including commuting compensation under subsection (a)(2)(B)) that a
customs officer may be paid in any fiscal year may not exceed $30,000,
except that--
(A) the Commissioner of Customs or his or her designee may waive
this limitation in individual cases in order to prevent excessive costs
or to meet emergency requirements of the Customs Service; and
(B) upon certification by the Commissioner of Customs to the
Chairmen of the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate that the
Customs Service has in operation a system that provides accurate and
reliable data on a daily basis on overtime and premium pay that is being
paid to customs officers, the Commissioner is authorized to pay any
customs officer for one work assignment that would result in the
overtime pay of that officer exceeding the $30,000 limitation imposed by
this paragraph, in addition to any overtime pay that may be received
pursuant to a waiver under subparagraph (A).
* * * * * * *
(e) Use of Savings From Payment of Premium Pay.--
(1) Use of amounts.--For fiscal year 2002, the Secretary of the
Treasury--
(A) shall determine under paragraph (2) the amount of savings from
the payment of premium pay to customs officers; and
(B) shall use an amount from the Customs User Fee Account equal to
such amount determined under paragraph (2) for additional premium pay
described in clauses (i) and (ii) of subsection (b)(1)(A).
(2) Determination of savings amount.--The Secretary shall calculate
an amount equal to the difference between--
(A) the estimated cost for premium pay that would have been incurred
during fiscal year 2002 if this section, as in effect on the day before
the date of the enactment of section 123 of the Customs Border Security
Act of 2001, had governed such costs; and
(B) the actual cost for premium pay that is incurred during fiscal
year 2002 under this section, as amended by section 123 of the Customs
Border Security Act of 2001.
(e) (f) Definitions.--As used in this section:
(1) * * *
* * * * * * *
SECTION 3061 OF THE REVISED STATUTES OF THE UNITED STATES
Sec. 3061. (a) Any of the officers or persons authorized to board or
search vessels may stop, search, and examine, as well without as within
their respective districts, any vehicle, beast, or person, on which or
whom he or they shall suspect there is merchandise which is subject to
duty, or shall have been introduced into the United States in any manner
contrary to law, whether by the person in possession or charge, or by,
in, or upon such vehicle or beast, or otherwise, and to search any trunk
or envelope, wherever found, in which he may have a reasonable cause to
suspect there is merchandise which was imported contrary to law; and if
any such officer or other person so authorized shall find any
merchandise on or about any such vehicle, beast, or person, or in any
such trunk or envelope, which he shall have reasonable cause
to believe is subject to duty, or to have been unlawfully introduced
into the United States, whether by the person in possession or charge,
or by, in, or upon such vehicle, beast, or otherwise, he shall seize and
secure the same for trial.
(b) Any officer or employee of the United States conducting a search
of a person pursuant to subsection (a) shall not be held liable for any
civil damages as a result of such search if the officer or employee
performed the search in good faith.
TARIFF ACT OF 1930
* * * * * * *
TITLE III--SPECIAL PROVISIONS
* * * * * * *
PART II--UNITED STATES TARIFF COMMISSION
* * * * * * *
SEC. 318. EMERGENCIES.
(a) Whenever the President shall by proclamation declare an emergency
to exist by reason of a state of war, or otherwise, he may authorize the
Secretary of the Treasury to extend during the continuance of such
emergency the time herein prescribed for the performance of any act, and
may authorize the Secretary of the Treasury to permit, under such
regulations as the Secretary of the Treasury may prescribe, the
importation free of duty of food, clothing, and medical, surgical, and
other supplies for use in emergency relief work. The Secretary of the
Treasury shall report to the Congress any action taken under the
provisions of this section.
(b)(1) Notwithstanding any other provision of law, the Secretary of
the Treasury, when necessary to respond to a national emergency declared
under the National Emergencies Act (50 U.S.C. 1601 et seq.) or to a
specific threat to human life or national interests, is authorized to
take the following actions on a temporary basis:
(A) Eliminate, consolidate, or relocate any office or port of entry
of the Customs Service.
(B) Modify hours of service, alter services rendered at any
location, or reduce the number of employees at any location.
(C) Take any other action that may be necessary to directly respond
to the national emergency or specific threat.
(2) Notwithstanding any other provision of law, the Commissioner of
Customs, when necessary to respond to a specific threat to human life or
national interests, is authorized to close temporarily any Customs
office or port of entry or take any other lesser action that may be
necessary to respond to the specific threat.
(3) The Secretary of the Treasury or the Commissioner of Customs, as
the case may be, shall notify the Committee on Ways and Means of the
House of Representatives and the Committee on Finance of the Senate not
later than 72 hours after taking any action under paragraph (1) or (2).
* * * * * * *
SEC. 330. ORGANIZATION OF THE COMMISSION.
(a) * * *
* * * * * * *
(e) Authorization of Appropriations.--(1) * * *
(2)(A) There are authorized to be appropriated to the Commission for
necessary expenses (including the rental of conference rooms in the
District of Columbia and elsewhere) not to exceed the following:
(i) $41,170,000 for fiscal year 1991.
(ii) $44,052,000 for fiscal year 1992.
(i) $51,400,000 for fiscal year 2002.
(ii) $53,400,000 for fiscal year 2003.
* * * * * * *
(4) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the Commission shall submit to the Committee on Ways and Means of the
House of Representatives and the Committee on Finance of the Senate the
projected amount of funds for the succeeding fiscal year that will be
necessary for the Commission to carry out its functions.
* * * * * * *
TITLE IV--ADMINISTRATIVE PROVISIONS
PART I--DEFINITIONS AND NATIONAL CUSTOMS AUTOMATION PROGRAM
SUBPART A--DEFINITIONS
* * * * * * *
SEC. 401. MISCELLANEOUS.
When used in this title or in Part I of Title III--
(a) * * *
* * * * * * *
(t) The term ``land, air, or vessel carrier'' means a land, air, or
vessel carrier, as the case may be, that transports goods or passengers
for payment or other consideration, including money or services
rendered.
* * * * * * *
PART II--REPORT, ENTRY, AND UNLADING OF VESSELS AND VEHICLES
SEC. 431. MANIFEST--REQUIREMENT, FORM, AND CONTENTS.
(a) * * *
(b) Production of Manifest.-- (1) Any manifest required by the
Customs Service shall be signed, produced, delivered or electronically
transmitted by the master or person in charge of the
vessel, aircraft, or vehicle, or by any other authorized agent
of the owner or operator of the vessel, aircraft, or vehicle in
accordance with the requirements prescribed under subsection (d). A
manifest may be supplemented by bill of lading data supplied by the
issuer of such bill. If any irregularity of omission or commission
occurs in any way in respect to any manifest or bill of lading data, the
owner or operator of the vessel, aircraft or vehicle, or any party
responsible for such irregularity, shall be liable for any fine or
penalty prescribed by law with respect to such irregularity. The Customs
Service may take appropriate action against any of the parties.
(2) In addition to any other requirement under this section, for each
land, air, or vessel carrier required to make entry or obtain clearance
under the customs laws of the United States, the pilot, the master,
operator, or owner of such carrier (or the authorized agent of such
operator or owner) shall provide by electronic transmission cargo
manifest information in advance of such entry or clearance in such
manner, time, and form as prescribed under regulations by the Secretary.
The Secretary may exclude any class of land, air, or vessel carrier for
which the Secretary concludes the requirements of this subparagraph are
not necessary.
* * * * * * *
(d) Regulations.--
(1) In general.--The Secretary shall by regulation--
(A) specify the form for, and the information and data that must be
contained in, the manifest required by subsection (a) or subsection
(b)(2) ;
* * * * * * *
(C) prescribe the manner of production for, and the delivery or
electronic transmittal of the manifest required by subsection (a) or
subsection (b)(2) ; and
* * * * * * *
SEC. 432. PASSENGER AND CREW MANIFEST INFORMATION REQUIRED FOR
LAND, AIR, OR VESSEL CARRIERS.
(a) In General.--For every person arriving or departing on a land,
air, or vessel carrier required to make entry or obtain clearance under
the customs laws of the United States, the pilot, the master, operator,
or owner of such carrier (or the authorized agent of such operator or
owner) shall provide by electronic transmission manifest information
described in subsection (b) in advance of such entry or clearance in
such manner, time, and form as prescribed under regulations by the
Secretary.
(b) Information Described.--The information described in this
subsection shall include for each person described in subsection (a),
the person's--
(1) full name;
(2) date of birth and citizenship;
(3) gender;
(4) passport number and country of issuance;
(5) United States visa number or resident alien card number, as
applicable;
(6) passenger name record; and
(7) such additional information that the Secretary, by regulation,
determines is reasonably necessary to ensure aviation and maritime
safety pursuant to the laws enforced or administered by the Customs
Service.
* * * * * * *
SEC. 509. EXAMINATION OF BOOKS AND WITNESSES.
(a) * * *
(b) Regulatory Audit Procedures.--
(1) * * *
* * * * * * *
(6)(A) If during the course of any audit concluded under this
subsection, the Customs Service identifies overpayments of duties or
fees or over-declarations of quantities or values that are within the
time period and scope of the audit that the Customs Service has defined,
then in calculating the loss of revenue or monetary penalties under
section 592, the Customs Service shall treat the overpayments or
over-declarations on finally liquidated entries as an offset to any
underpayments or underdeclarations also identified on finally liquidated
entries if such overpayments or over-declarations were not made by the
person being audited for the purpose of violating any provision of law.
(B) Nothing in this paragraph shall be construed to authorize a
refund not otherwise authorized under section 520.
* * * * * * *
SEC. 583. EXAMINATION OF OUTBOUND MAIL.
(a) Examination.--
(1) In general.--For purposes of ensuring compliance with the
Customs laws of the United States and other laws enforced by the Customs
Service, including the provisions of law described in paragraph (2), a
Customs officer may, subject to the provisions of this section, stop and
search at the border, without a search warrant, mail of domestic origin
transmitted for export by the United States Postal Service and foreign
mail transiting the United States that is being imported or exported by
the United States Postal Service.
(2) Provisions of law described.--The provisions of law described in
this paragraph are the following:
(A) Section 5316 of title 31, United States Code (relating to
reports on exporting and importing monetary instruments).
(B) Sections 1461, 1463, 1465, and 1466 and chapter 110 of title 18,
United States Code (relating to obscenity and child pornography).
(C) Section 1003 of the Controlled Substances Import and Export Act
(21 U.S.C. 953; relating to exportation of controlled substances).
(D) The Export Administration Act of 1979 (50 U.S.C. app. 2401 et
seq.).
(E) Section 38 of the Arms Export Control Act (22 U.S.C. 2778).
(F) The International Emergency Economic Powers Act (50 U.S.C. 1701
et seq.).
(b) Search of Mail Not Sealed Against Inspection and Other
Mail.--Mail not sealed against inspection under the postal laws and
regulations of the United States, mail which bears a customs
declaration, and mail with respect to which the sender or addressee has
consented in writing to search, may be searched by a Customs officer.
(c) Search of Mail Sealed Against Inspection.--(1) Mail sealed
against inspection under the postal laws and regulations of the United
States may be searched by a Customs officer, subject to paragraph (2),
upon reasonable cause to suspect that such mail contains one or more of
the following:
(A) Monetary instruments, as defined in section 1956 of title 18,
United States Code.
(B) A weapon of mass destruction, as defined in section 2332a(b) of
title 18, United States Code.
(C) A drug or other substance listed in schedule I, II, III, or IV
in section 202 of the Controlled Substances Act (21 U.S.C. 812).
(D) National defense and related information transmitted in
violation of any of sections 793 through 798 of title 18, United States
Code.
(E) Merchandise mailed in violation of section 1715 or 1716 of title
18, United States Code.
(F) Merchandise mailed in violation of any provision of chapter 71
(relating to obscenity) or chapter 110 (relating to sexual exploitation
and other abuse of children) of title 18, United States Code.
(G) Merchandise mailed in violation of the Export Administration Act
of 1979 (50 U.S.C. app. 2401 et seq.).
(H) Merchandise mailed in violation of section 38 of the Arms Export
Control Act (22 U.S.C. 2778).
(I) Merchandise mailed in violation of the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.).
(J) Merchandise mailed in violation of the Trading with the Enemy
Act (50 U.S.C. app. 1 et seq.).
(K) Merchandise subject to any other law enforced by the Customs
Service.
(2) No person acting under authority of paragraph (1) shall read, or
authorize any other person to read, any correspondence contained in mail
sealed against inspection unless prior to so reading--
(A) a search warrant has been issued pursuant to Rule 41, Federal
Rules of Criminal Procedure; or
(B) the sender or addressee has given written authorization for such
reading.
* * * * * * *
SECTION 141 OF THE TRADE ACT OF 1974
SEC. 141. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE.
(a) * * *
* * * * * * *
(g)(1)(A) There are authorized to be appropriated to the Office for
the purposes of carrying out its functions not to exceed the following:
(i) $23,250,000 for fiscal year 1991.
(ii) $21,077,000 for fiscal year 1992.
(i) $30,000,000 for fiscal year 2002.
(ii) $31,000,000 for fiscal year 2003.
(B) Of the amounts authorized to be appropriated under subparagraph
(A) for any fiscal year--
(i) not to exceed $98,000 may be used for entertainment and
representation expenses of the Office; and
(ii) not to exceed $2,050,000 may be used to pay the United States
share of the expenses of binational panels and extraordinary challenge
committees convened pursuant to chapter 19 of the United States-Canada
Free-Trade Agreement; and
(iii) (ii) not to exceed $1,000,000 shall remain available until
expended.
* * * * * * *
(3) By not later than the date on which the President submits to
Congress the budget of the United States Government for a fiscal year,
the United States Trade Representative shall submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate the projected amount of funds for the succeeding
fiscal year that will be necessary for the Office to carry out its
functions.
HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES
* * * * * * *
CHAPTER 98--SPECIAL CLASSIFICATION PROVISIONS
* * * * * * *
SUBCHAPTER IV--PERSONAL EXEMPTIONS EXTENDED TO RESIDENTS AND
NONRESIDENTS
* * * * * * *
Heading/Subheading Article Description Rates of Duty
1 2
General Special
9804.00.65 lArticles, accompanying a person, not over $400 $800 in aggregate fair retail value in the country of acquisition, including (but only in the case of an individual who has attained the age of 21) not more than 1 liter of alcoholic beverages and including not more than 200 cigarettes and 100 cigars Free Free
* * * * * * *
VII. DISSENTING VIEWS
We reluctantly express our opposition to H.R. 3129.
In the aftermath of September 11th, we had hoped that Democrats and
Republicans could work together to produce a Customs authorization bill
that provides Customs with the tools necessary to protect our borders,
and that shows support for the men and women performing that function.
Regrettably, Republicans on the Committee did not share this view. With
respect to providing Customs with the appropriate tools, this bill is
based on the Customs' budget request and House Appropriations bill, both
of which pre-date September 11th. Moreover, the Majority includes in
this bill the same authorization priorities included in the bill they
drafted three years ago. Authorizations for equipment were not updated
to reflect needs that have clearly presented themselves in recent weeks.
In fact, rather than bolstering Customs' efforts to combat terrorism,
one element of the bill will undermine it by penalizing one-third of the
Customs inspector workforce.
Section 123 of this bill amends existing law governing the payment of
night shift differential pay for Customs inspectors. According to
Customs officials' testimony before the Committee, over 2,000
hardworking men and women will lose money under the Majority's proposal.
The Majority does not offer any legitimate justification for making the
proposed changes. They do not contend that Customs inspectors are
overpaid. They do not contend that there is abuse in the existing
system. The Majority, in fact, offers no explanation for the change
other than they disagree with what hours qualify for premium pay. In a
vacuum, that rationale might be sufficient. But in the real world, where
a change such as the one the Majority is proposing will result in real
people losing real money, that rationale is insufficient, particularly
when the people affected are the very ones that serve as our front line
of defense against terrorism.
The existing provision governing night shift differential pay takes a
balanced approach toward compensating Customs officers for working odd
hour shifts. The current law governing night shift differential pay was
passed by Congress in 1993, as part of a comprehensive package of
Customs compensation reforms, the Customs Officers' Pay Reform
Amendments (``COPRA''), (P.L. 103 66, 107 Stat. 670). The purpose of the
reforms was to rationalize the method of paying Customs officers for
overtime, while also ensuring that Customs officers received pay
commensurate with the important work they perform. To achieve this
balance, Congress, on a bipartisan basis, altered Customs officers'
entire compensation structure, including the amendment to the hours
eligible for and the wage rate applied to night shift differential pay.
By considering and amending compensation on an aggregate basis, Congress
ensured that the correction of certain payment abuses did not result in
Customs officers receiving an unwarranted cut in pay.
On night shift differential pay, the 1993 reforms provided that
--if a majority of hours worked by a Customs officer in a shift fell
between 3 p.m. and midnight, all hours in the shift were paid at the
hourly rate + 15%;
--if a majority of hours worked by a Customs officer in a shift fell
between 11 p.m. and 8 a.m., all hours in the shift were paid at the
hourly rate + 20%;
--however, if a majority of the hours worked by a Customs officer in
a shift did not fall within the 3 p.m. to 8 a.m. period, the employee
was paid at the hourly rate only.
The purpose of this premium is to compensate Customs officers for
working shifts that begin or end outside a normal work day (i.e., 3 p.m.
to 11 p.m., midnight to 8 a.m.). As stated in the 1993 Committee report,
the Committee found that these odd hour shifts, which were assigned by
management (and not the employee), had ``an adverse impact on the
quality of life of Customs officials who are required to work regularly
scheduled shifts at night or on Sundays and holidays.'' H. Rep. No. 103
11, at 573, 574 (May 25, 1993). Recognizing this problem, the Committee
amended the hours eligible for and the wage rate applied to the night
shift differential specifically to provide for ``shift differential
compensation at levels substantially greater than applied generally to
other Federal employees for such regularly scheduled work.'' H. Rep. No.
103 11, at 573, 574 (May 25, 1993).
Section 123 of the bill alters the balanced approach crafted in 1993
in two ways. First, the provision restricts the hours that qualify for
the night shift differential to hours between 5 p.m. and 6 a.m. Second,
the provision compensates Customs officers at the differential rate only
for those hours that occur between 5 p.m. and 6 a.m. (with two limited
exceptions), and not the entire shift. These changes will mean that a
Grade 9 Customs officer who works a shift starting at 3 a.m. and ending
at 11 a.m. will receive the shift differential for only 3 hours of that
shift, resulting in a loss to that Customs officer of $75 per week.
The shifts most adversely affected under the Majority's proposal
include four heavily worked shifts at major airports. At New York's JFK
airport, for example, there are 200 inspectors who work the 1 p.m. 9
p.m. shift. Sixty-six of those inspectors are grade 9 (earning a base
pay of $37,000 $49,000), and would lose $2,220 per year under the
Majority's proposal.
To offset some of the loss in pay likely to occur, section 121 of the
bill adjusts the overtime cap that, under current law, restricts the
amount of overtime pay a Customs officer may earn in one year. In
effect, this adjustment would allow Customs officers to work more
overtime to compensate for lost wages, or put another way, Customs
officers will have to work more to get the same pay. Such a result is
unfair. It is not even clear that it will be possible for the officers
whose pay is reduced to work the additional hours to make up for the
loss in pay. Moreover, only a small percentage of officers currently
reach the overtime cap, and therefore would even benefit from the new
provision.
We are not opposed to considering amendments to Customs officers pay,
if a credible study evaluates and recommends that legislative changes be
made. We have indicated that we would support a study, as the Majority
has decided to do on two other Customs employee issues. However, we are
opposed to cutting someone's wages because a few Members of this
Committee
are fixated on nomenclature (``night pay'') rather than the
practical realities of the total Customs pay package. The men and women
of the U.S. Customs Service perform vital functions with respect to both
law enforcement--serving as a primary defense against terrorism--and
preserving the integrity of U.S. trade with foreign nations. Their
current compensation structure was designed to take account of the
unusual stresses of their job--both the on-the-job safety risks and the
irregular hours. Those aspects of a Customs officer's job have only
become more acute since September 11. Now is not the time to
unilaterally cut these officers' pay, which is precisely what the
Customs Service stated that H.R. 3129 will do to one third of these
inspectors.
In addition, we have serious concerns about two other provisions in
the bill. Section 141 would provide any officer conducting a personal
search at a border immunity from civil damages if the officer performed
the search in ``good faith.'' Section 144 would allow the U.S. Customs
Service to open outbound international mail without a warrant.
Personal Search
Section 141 is characterized as a ``procedural'' device to allow
civil cases against individual customs agents to be dismissed in the
early stages of litigation concerning their official duties. However, a
plain reading of Section 141 evidences an intent to carve out a broader
standard of immunity than that existing under current law. The existing
doctrine of qualified immunity shields public officials performing
discretionary functions from civil damages if their conduct does not
violate clearly established statutory or constitutional rights of which
a reasonable person should have known. The Supreme Court has repeatedly
held that the objective reasonableness of an officer's behavior, not a
subjective ``good faith'' standard, is the proper test for liability.
This provision could weaken protections against racial profiling and
other illegal and unconstitutional searches by the Customs Service.
Despite the Administration's stated intent, section 141 appears to be a
substantive, and not a procedural change.
Civil lawsuits against government officials and agencies are an
important deterrent to racial profiling and unconstitutional and
unlawful searches. Without the possibility of a lawsuit, individuals who
have been treated in an unconstitutional manner by a government agency
would have no redress, and the government agents would have less
incentive to comply with the Constitution. Providing Customs officers
with expanded immunity is not likely to have any impact on decreasing
terrorism, but it will increase the likelihood that innocent passengers
will have their constitutional rights violated.
Outbound Mail
Under current law, the Customs Service is empowered to search,
without a warrant, inbound mail handled by the United States Postal
Service and packages and letters handled by private carriers such as
Federal Express and the United Parcel Service. This ``border exception''
to the Fourth Amendment derives from the traditional authority of the
sovereign to protect its borders against inbound contraband and to
collect duties on inbound freight.
Section 144 would allow Customs officials to open ``sealed'' mail
with ``reasonable cause,'' a lower standard than probable cause, and
would eliminate the need for judicial review. Moreover, section 144
would allow Customs officials to open ``unsealed'' mail, and any mail
bearing a Customs declaration for no cause whatsoever. People in the
United States have an expectation of privacy in the mail they send to
friends, family, or business associates abroad. The Customs Service's
interest in confiscating illegal weapons' shipments, drugs or other
contraband is adequately protected by its ability to secure a search
warrant when it has probable cause. Short of an emergency, postal
officials can always hold a package while they wait for a court to issue
a warrant.
We are not opposed per se to the policy underlying these amendments.
For example, on the good faith immunity provision we did seek language
prior to the mark-up that might clarify what was meant by ``good
faith.'' The change we sought would have made the provision procedural,
rather than substantive. Our suggestion was not incorporated into the
bill, however. We hope that the courts will incorporate the definition
of ``good faith'' included in the Committee report, as the
Administration has assured the Committee. Notwithstanding, we remain
concerned, and absent clarification and more information as to why these
provisions are necessary, we believe the current language is unnecessary
and potentially damaging to constitutional rights.
Charles B. Rangel.
Xavier Becerra.
Jerry Kleczka.
Pete Stark.
Lloyd Doggett.
Richard E. Neal.
Sander Levin.
Jim McDermott.
Robert T. Matsui.
William J. Coyne.
John Lewis.
Earl Pomeroy.
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Source: U.S. Government Website |