Port of entry donation authority

Source Credit

(a) Personal property donation authority
(1) In general
The Commissioner of U.S. Customs and Border Protection, in consultation with the Administrator of General Services, may enter into an agreement with any entity to accept a donation of personal property, money, or nonpersonal services for the uses described in paragraph (3) only with respect to the following locations at which U.S. Customs and Border Protection performs or will be performing inspection services:
(A) A new or existing sea or air port of entry.
(B) An existing Federal Government-owned or -leased land port of entry.
(C) A new Federal Government-owned or -leased land port of entry if—
(i) the fair market value of the donation is $75,000,000 or less; and
(ii) the fair market value of donations with respect to the land port of entry total $75,000,000 or less over the preceding five years.
(2) Limitation on monetary donations
Any monetary donation accepted pursuant to this subsection may not be used to pay the salaries of U.S. Customs and Border Protection employees performing inspection services.
(3) Uses
Donations accepted pursuant to this subsection may be used for activities of the Office of Field Operations set forth in subparagraphs (A) through (F) of section 211(g)(3) of this title, which are related to a new or existing sea or air port of entry or a new or existing Federal Government-owned or -leased land port of entry described in paragraph (1), including expenses related to—
(A) furniture, fixtures, equipment, or technology, including the installation or deployment of such items; and
(B) the operation and maintenance of such furniture, fixtures, equipment, or technology.
(b) Real property donation authority
(1) In general
Subject to paragraph (3), the Commissioner of U.S. Customs and Border Protection, and the Administrator of General Services, as applicable, may enter into an agreement with any entity to accept a donation of real property or money for uses described in paragraph (2) only with respect to the following locations at which U.S. Customs and Border Protection performs or will be performing inspection services:
(A) A new or existing sea or air port of entry.
(B) An existing Federal Government-owned land port of entry.
(C) A new Federal Government-owned land port of entry if—
(i) the fair market value of the donation is $75,000,000 or less; and
(ii) the fair market value of donations with respect to the land port of entry total $75,000,000 or less over the preceding five years.
(2) Use
Donations accepted pursuant to this subsection may be used for activities of the Office of Field Operations set forth in section 211(g) of this title, which are related to the construction, alteration, operation, or maintenance of a new or existing sea or air port of entry or a new or existing a 1 Federal Government-owned land port of entry described in paragraph (1), including expenses related to—
(A) land acquisition, design, construction, repair, or alteration; and
(B) operation and maintenance of such port of entry facility.
(3) Limitation on real property donations
A donation of real property under this subsection at an existing land port of entry owned by the General Services Administration may only be accepted by the Administrator of General Services.
(4) Sunset
(A) In general
The authority to enter into an agreement under this subsection shall terminate on December 31, 2026.
(B) Rule of construction
The termination date referred to in subparagraph (A) shall not apply to a proposal accepted for consideration by U.S. Customs and Border Protection or the General Services Administration pursuant to this section or a prior pilot program prior to such termination date.
(c) General provisions
(1) Duration
An agreement entered into under subsection (a) or (b) (and, in the case of such subsection (b), in accordance with paragraph (4) of such subsection) may last as long as required to meet the terms of such agreement.
(2) Criteria
In carrying out an agreement entered into under subsection (a) or (b), the Commissioner of U.S. Customs and Border Protection, in consultation with the Administrator of General Services, shall establish criteria regarding—
(A) the selection and evaluation of donors;
(B) the identification of roles and responsibilities between U.S. Customs and Border Protection, the General Services Administration, and donors;
(C) the identification, allocation, and management of explicit and implicit risks of partnering between the Federal Government and donors;
(D) decision-making and dispute resolution processes; and
(E) processes for U.S. Customs and Border Protection, and the General Services Administration, as applicable, to terminate agreements if selected donors are not meeting the terms of any such agreement, including the security standards established by U.S. Customs and Border Protection.
(3) Evaluation procedures
(A) In general
The Commissioner of U.S. Customs and Border Protection, in consultation with the Administrator of General Services, as applicable, shall—
(i) establish criteria for evaluating a proposal to enter into an agreement under subsection (a) or (b); and
(ii) make such criteria publicly available.
(B) Considerations
Criteria established pursuant to subparagraph (A) shall consider—
(i) the impact of a proposal referred to in such subparagraph on the land, sea, or air port of entry at issue and other ports of entry or similar facilities or other infrastructure near the location of the proposed donation;
(ii) such proposal's potential to increase trade and travel efficiency through added capacity;
(iii) such proposal's potential to enhance the security of the port of entry at issue;
(iv) the impact of the proposal on reducing wait times at that port of entry or facility and other ports of entry on the same border;
(v) for a donation under subsection (b)—
(I) whether such donation satisfies the requirements of such proposal, or whether additional real property would be required; and
(II) how such donation was acquired, including if eminent domain was used;
(vi) the funding available to complete the intended use of such donation;
(vii) the costs of maintaining and operating such donation;
(viii) the impact of such proposal on U.S. Customs and Border Protection staffing requirements; and
(ix) other factors that the Commissioner or Administrator determines to be relevant.
(C) Determination and notification
(i) Incomplete proposals
(I) In general
Not later than 60 days after receiving the proposals for a donation agreement from an entity, the Commissioner of U.S. Customs and Border Protection shall notify such entity as to whether such proposal is complete or incomplete.
(II) Resubmission
If the Commissioner of U.S. Customs and Border Protection determines that a proposal is incomplete, the Commissioner shall—
(aa) notify the appropriate entity and provide such entity with a description of all information or material that is needed to complete review of the proposal; and
(bb) allow the entity to resubmit the proposal with additional information and material described in item (aa) to complete the proposal.
(ii) Complete proposals
Not later than 180 days after receiving a completed proposal to enter into an agreement under subsection (a) or (b), the Commissioner of U.S. Customs and Border Protection, with the concurrence of the Administrator of General Services, as applicable, shall—
(I) determine whether to approve or deny such proposal; and
(II) notify the entity that submitted such proposal of such determination.
(4) Supplemental funding
Except as required under section 3307 of title 40, real property donations to the Administrator of General Services made pursuant to subsection 1 (a) and 1 (b) at a GSA-owned land port of entry may be used in addition to any other funding for such purpose, including appropriated funds, property, or services.
(5) Return of donations
The Commissioner of U.S. Customs and Border Protection, or the Administrator of General Services, as applicable, may return any donation made pursuant to subsection (a) or (b). No interest shall be owed to the donor with respect to any donation provided under such subsections that is returned pursuant to this subsection.
(6) Prohibition on certain funding
(A) In general
Except as provided in subsections (a) and (b) regarding the acceptance of donations, the Commissioner of U.S. Customs and Border Protection and the Administrator of General Services, as applicable, may not, with respect to an agreement entered into under either of such subsections, obligate or expend amounts in excess of amounts that have been appropriated pursuant to any appropriations Act for purposes specified in either of such subsections or otherwise made available for any of such purposes.
(B) Certification requirement
Before accepting any donations pursuant to an agreement under subsection (a) or (b), the Commissioner of U.S. Customs and Border Protection shall certify to the congressional committees set forth in paragraph (7) that 2
(i) the donation will not be used for the construction of a detention facility or a border fence or wall; and
(ii) the donor will be notified in the Donations Acceptance Agreement that the donor shall be financially responsible for all costs and operating expenses related to the operation, maintenance, and repair of the donated real property until such time as U.S. Customs and Border Protection provides the donor written notice otherwise.
(7) Annual reports
The Commissioner of U.S. Customs and Border Protection, in collaboration with the Administrator of General Services, as applicable, shall submit an annual report identifying the activities undertaken and agreements entered into pursuant to subsections (a) and (b) to—
(A) the Committee on Appropriations of the Senate;
(B) the Committee on Environment and Public Works of the Senate;
(C) the Committee on Finance of the Senate;
(D) the Committee on Homeland Security and Governmental Affairs of the Senate;
(E) the Committee on the Judiciary of the Senate;
(F) the Committee on Appropriations of the House of Representatives;
(G) the Committee on Homeland Security of the House of Representatives;
(H) the Committee on the Judiciary of the House of Representatives;
(I) the Committee on Transportation and Infrastructure of the House of Representatives; and
(J) the Committee on Ways and Means of the House of Representatives.
(d) GAO report
The Comptroller General of the United States shall submit an 3 biennial report to the congressional committees referred to in subsection (c)(7) that evaluates—
(1) fee agreements entered into pursuant to section 301 of this title;
(2) donation agreements entered into pursuant to subsections (a) and (b); and
(3) the fees and donations received by U.S. Customs and Border Protection pursuant to such agreements.
(e) Judicial review
Decisions of the Commissioner of U.S. Customs and Border Protection and the Administrator of General Services under this section regarding the acceptance of real or personal property are in the discretion of the Commissioner and the Administrator and are not subject to judicial review.
(f) Rule of construction
Except as otherwise provided in this section, nothing in this section may be construed as affecting in any manner the responsibilities, duties, or authorities of U.S. Customs and Border Protection or the General Services Administration.

History

(Pub. L. 107–296, title IV, §482, as added Pub. L. 114–279, §2(a), Dec. 16, 2016, 130 Stat. 1417; amended Pub. L. 116–260, div. O, title III, §301, Dec. 27, 2020, 134 Stat. 2149; Pub. L. 117–81, div. F, title LXIV, §6410, Dec. 27, 2021, 135 Stat. 2408.)

Editorial Notes

Editorial Notes

Amendments
2021—Subsec. (a)(1)(B), (C). Pub. L. 117–81, §6410(1)(A)(i), (ii)(I), inserted "or -leased" before "land".
Subsec. (a)(1)(C)(i). Pub. L. 117–81, §6410(1)(A)(ii)(II), substituted "$75,000,000" for "$50,000,000".
Subsec. (a)(1)(C)(ii). Pub. L. 117–81, §6410(1)(A)(ii)(III), amended cl. (ii) generally. Prior to amendment, text read as follows: "the fair market value, including any personal and real property donations in total, of such port of entry when completed, is $50,000,000 or less.".
Subsec. (a)(3). Pub. L. 117–81, §6410(1)(B), inserted "or -leased" before "land" in introductory provisions.
Subsec. (b)(1). Pub. L. 117–81, §6410(2)(A), which directed substitution of "Administrator of General Services" for "Administrator of the General Services Administration" in the matter preceding par. (1), was executed in par. (1) to reflect the probable intent of Congress.
Subsec. (b)(1)(C)(i). Pub. L. 117–81, §6410(2)(B)(i), substituted "$75,000,000" for "$50,000,000".
Subsec. (b)(1)(C)(ii). Pub. L. 117–81, §6410(2)(b)(ii), amended cl. (ii) genrally. Prior to amendment, text read as follows: "the fair market value, including any personal and real property donations in total, of such port of entry when completed, is $50,000,000 or less.".
Subsec. (b)(4)(A). Pub. L. 117–81, §6410(2)(C)(i), substituted "terminate on December 31, 2026." for "terminate on the date that is December 16, 2021.".
Subsec. (b)(4)(B). Pub. L. 117–81, §6410(2)(C)(ii), substituted "a proposal accepted for consideration by U.S. Customs and Border Protection or the General Services Administration pursuant to this section or a prior pilot program prior to such termination date" for "carrying out the terms of an agreement under this subsection if such agreement is entered into before such termination date".
Subsec. (c)(6)(B). Pub. L. 117–81, §6410(3), substituted cls. (i) and (ii) for "the donation will not be used for the construction of a detention facility or a border fence or wall."
Subsec. (d). Pub. L. 117–81, §6401(4), substituted "biennial" for "annual" in introductory provisions.
Subsec. (e). Pub. L. 117–81, §6410(d), substituted "Administrator of General Services" for "Administrator of the General Services Administration".
2020—Subsec. (b)(4)(A). Pub. L. 116–260, which directed substitution of "December 16, 2021" for "4 years after December 16, 2016", was executed by making the substitution for original text reading "4 years after the date of the enactment of this section", which had been translated as "4 years after December 16, 2016", to reflect the probable intent of Congress.