### §2238c. Additional measures at donor ports and energy transfer ports

#### (a) Definitions

In this section:

#### (1) Cargo container

The term "cargo container" means a cargo container that is 1 Twenty-foot Equivalent Unit.

#### (2) Discretionary cargo

The term "discretionary cargo" means maritime cargo for which the United States port of unlading is different than the United States port of entry.

#### (3) Donor port

#### (A) In general

The term "donor port" means a port—

(i) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);

(ii) at which the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) comprise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund on an average annual basis for the previous 3 fiscal years;

(iii) that received less than 25 percent of the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) at that port in the previous 3 fiscal years; and

(iv) that is located in a State in which more than 2,000,000 cargo containers were unloaded from or loaded on to vessels on an average annual basis for the previous 3 fiscal years.

#### (B) Calculation

For the purpose of calculating the percentage described in subparagraph (A)(iii), payments described under subsection (c)(1) shall not be included.

#### (4) Energy commodity

The term "energy commodity" includes—

(A) petroleum products;

(B) natural gas;

(C) coal;

(D) wind and solar energy components; and

(E) biofuels.

#### (5) Energy transfer port

The term "energy transfer port" means a port—

(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or any successor regulation); and

(B)(i) at which energy commodities comprised greater than 25 percent of all commercial activity by tonnage on an average annual basis for the previous 3 fiscal years; and

(ii) through which more than 40,000,000 tons of cargo were transported on an average annual basis for the previous 3 fiscal years.

#### (6) Expanded uses

The term "expanded uses" has the meaning given the term in section 2238(f) of this title.

#### (7) Harbor maintenance tax

The term "harbor maintenance tax" has the meaning given the term in section 2238(f) of this title.

#### (8) Harbor maintenance trust fund

The term "Harbor Maintenance Trust Fund" means the Harbor Maintenance Trust Fund established by section 9505 of title 26.

#### (9) Medium-sized donor port

The term "medium-sized donor port" means a port—

(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);

(B) at which the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) comprise annually more than $5,000,000 but less than $15,000,000 of the total funding of the Harbor Maintenance Trust Fund on an average annual basis for the previous 3 fiscal years;

(C) that received less than 25 percent of the total amount of harbor maintenance taxes collected (including the estimated taxes related to domestic cargo and cruise passengers) at that port in the previous 3 fiscal years; and

(D) that is located in a State in which more than 2,000,000 cargo containers were unloaded from or loaded onto vessels on an average annual basis for the previous 3 fiscal years.

#### (b) Authority

#### (1) In general

Subject to the availability of appropriations, the Secretary may provide to donor ports, medium-sized donor ports, and energy transfer ports amounts in accordance with this section.

#### (2) Limitations

Amounts provided under this section—

(A) for energy transfer ports shall be divided equally among all States with an energy transfer port;

(B) shall be made available to a port as either a donor port, medium-sized donor port, or an energy transfer port, and no port may receive amounts from more than 1 designation; and

(C) for donor ports and medium-sized donor ports—

(i) 50 percent of the funds shall be equally divided between the eligible donor ports as authorized by this section; and

(ii) 50 percent of the funds shall be divided between the eligible donor ports and eligible medium-sized donor ports based on the percentage of the total harbor maintenance tax revenues generated at each eligible donor port and medium-sized donor port.

#### (c) Use of funds

Amounts provided under this section may be used by a donor port, a medium-sized donor port, or an energy transfer port—

(1) to provide payments to importers entering cargo through that port, as calculated by the Secretary according to the value of discretionary cargo;

(2) for expanded uses; or

(3) for environmental remediation related to dredging berths and Federal navigation channels.

#### (d) Administration of payments

#### (1) In general

If a donor port, a medium-sized donor port, or an energy transfer port elects to provide payments to importers under subsection (c), the Secretary shall transfer to the Commissioner of U.S. Customs and Border Protection an amount equal to those payments that would otherwise be provided to the port under this section to provide the payments to the importers of the discretionary cargo that is—

(A) shipped through the port; and

(B) most at risk of diversion to seaports outside of the United States.

#### (2) Requirement

The Secretary, in consultation with a port electing to provide payments under subsection (c), shall determine the top importers at the port, as ranked by the value of discretionary cargo, and payments shall be limited to those top importers.

#### (e) Authorization of appropriations

#### (1) In general

There are authorized to be appropriated to carry out this section—

(A) $56,000,000 for fiscal year 2023;

(B) $58,000,000 for fiscal year 2024;

(C) $60,000,000 for fiscal year 2025;

(D) $62,000,000 for fiscal year 2026;

(E) $64,000,000 for fiscal year 2027;

(F) $66,000,000 for fiscal year 2028;

(G) $68,000,000 for fiscal year 2029; and

(H) $70,000,000 for fiscal year 2030.

#### (2) Division between donor ports, medium-sized donor ports, and energy transfer ports

For each fiscal year, amounts made available to carry out this section shall be provided in equal amounts to—

(A) donor ports and medium-sized donor ports; and

(B) energy transfer ports.

#### (f) Savings clause

Nothing in this section waives any statutory requirement related to the transportation of merchandise as authorized under chapter 551 of title 46.

(Pub. L. 113–121, title II, §2106, June 10, 2014, 128 Stat. 1280; Pub. L. 114–322, title I, §1110, Dec. 16, 2016, 130 Stat. 1634; Pub. L. 116–260, div. AA, title I, §104(a)–(b)(2), Dec. 27, 2020, 134 Stat. 2621, 2622.)

#### **Editorial Notes**

#### Codification

Section was enacted as part of the Water Resources Reform and Development Act of 2014, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

#### Amendments

2020—Subsec. (a)(3)(A)(ii). Pub. L. 116–260, §104(b)(1)(A)(i), amended cl. (ii) generally. Prior to amendment, text read as follows: "at which the total amount of harbor maintenance taxes collected comprise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund established under section 9505 of title 26;".

Subsec. (a)(3)(A)(iii). Pub. L. 116–260, §104(b)(1)(A)(ii), inserted "(including the estimated taxes related to domestic cargo and cruise passengers)" after "taxes collected" and substituted "3 fiscal years" for "5 fiscal years".

Subsec. (a)(3)(A)(iv). Pub. L. 116–260, §104(b)(1)(A)(iii), substituted "on an average annual basis for the previous 3 fiscal years" for "in fiscal year 2012".

Subsec. (a)(5)(B). Pub. L. 116–260, §104(b)(1)(B), substituted "on an average annual basis for the previous 3 fiscal years" for "in fiscal year 2012" in two places.

Subsec. (a)(8), (9). Pub. L. 116–260, §104(b)(1)(C), added par. (8) and redesignated former par. (8) as (9).

Subsec. (a)(9)(B). Pub. L. 116–260, §104(b)(1)(D)(i), amended subpar. (B) generally. Prior to amendment, text read as follows: "at which the total amount of harbor maintenance taxes collected comprise annually more than $5,000,000 but less than $15,000,000 of the total funding of the Harbor Maintenance Trust Fund established under section 9505 of title 26;".

Subsec. (a)(9)(C). Pub. L. 116–260, §104(b)(1)(D)(ii), inserted "(including the estimated taxes related to domestic cargo and cruise passengers)" after "taxes collected" and substituted "3 fiscal years" for "5 fiscal years".

Subsec. (a)(9)(D). Pub. L. 116–260, §104(b)(1)(D)(iii), substituted "on an average annual basis for the previous 3 fiscal years" for "in fiscal year 2012".

Subsec. (e). Pub. L. 116–260, §104(b)(2)(A), redesignated subsec. (f) as (e) and struck out former subsec. (e) which related to report to Congress.

Subsec. (e)(1). Pub. L. 116–260, §104(b)(2)(B), amended par. (1) generally. Prior to amendment, text read as follows: "There is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2015 through 2020."

Subsec. (f). Pub. L. 116–260, §104(b)(2)(A), redesignated subsec. (g) as (f). Former subsec. (f) redesignated (e).

Subsec. (f)(1). Pub. L. 116–260, §104(a)(1), substituted "2022" for "2020".

Subsec. (f)(3). Pub. L. 116–260, §104(a)(2), struck out par. (3). Prior to amendment, text read as follows: "If the target total budget resources under subparagraphs (A) through (D) of section 2238b(b)(1) of this title are met for each of fiscal years 2016 through 2020, there is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2021 through 2025."

Subsec. (g). Pub. L. 116–260, §104(b)(2)(A), redesignated subsec. (g) as (f).

2016—Subsec. (a)(2). Pub. L. 114–322, §1110(1)(B), added par. (2). Former par. (2) redesignated (3).

Subsec. (a)(3). Pub. L. 114–322, §1110(1)(C), designated existing provisions as subpar. (A) and inserted heading, redesignated former subpars. (A) to (D) as cls. (i) to (iv), respectively, of subpar. (A), and added subpar. (B).

Pub. L. 114–322, §1110(1)(A), redesignated par. (2) as (3). Former par. (3) redesignated (4).

Subsec. (a)(4). Pub. L. 114–322, §1110(1)(A), redesignated par. (3) as (4). Former par. (4) redesignated (5).

Subsec. (a)(5). Pub. L. 114–322, §1110(1)(A), redesignated par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (a)(5)(A). Pub. L. 114–322, §1110(1)(D), substituted "Code of Federal Regulations" for "Code of Federal Regulation".

Subsec. (a)(6), (7). Pub. L. 114–322, §1110(1)(A), redesignated pars. (5) and (6) as (6) and (7), respectively.

Subsec. (a)(8). Pub. L. 114–322, §1110(1)(E), added par. (8).

Subsec. (b)(1). Pub. L. 114–322, §1110(2)(A), substituted "donor ports, medium-sized donor ports," for "donor ports".

Subsec. (b)(2)(B), (C). Pub. L. 114–322, §1110(2)(B), added subpars. (B) and (C) and struck out former subpar. (B) which read as follows: "shall be made available to a port as either a donor port or an energy transfer port and no port may receive amounts as both a donor port and an energy transfer port."

Subsec. (c). Pub. L. 114–322, §1110(3)(A), substituted "donor port, a medium-sized donor port," for "donor port" in introductory provisions.

Subsec. (c)(1). Pub. L. 114–322, §1110(3)(B), struck out "or shippers transporting cargo" after "entering cargo" and substituted "the Secretary" for "U.S. Customs and Border Protection" and "value of discretionary cargo" for "amount of harbor maintenance taxes collected".

Subsec. (d). Pub. L. 114–322, §1110(4), added subsec. (d) and struck out former subsec. (d). Prior to amendment, text read as follows: "If a donor port or an energy transfer port elects to provide payments to importers or shippers under subsection (c), the Secretary shall transfer the amount that would otherwise be provided to the port under this section that is equal to those payments to the Commissioner of U.S. Customs and Border Protection to provide the payments to the importers or shippers."

Subsec. (f)(1). Pub. L. 114–322, §1110(5)(A), substituted "2020" for "2018".

Subsec. (f)(2). Pub. L. 114–322, §1110(5)(B), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "For each fiscal year, amounts made available to carry out this section shall be provided in equal amounts to donor ports and energy transfer ports."

Subsec. (f)(3). Pub. L. 114–322, §1110(5)(C), substituted "2016 through 2020" for "2015 through 2018" and "2021 through 2025" for "2019 through 2022".

Subsec. (g). Pub. L. 114–322, §1110(6), added subsec. (g).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2020 Amendment

Pub. L. 116–260, div. AA, title I, §104(b)(3), Dec. 27, 2020, 134 Stat. 2622, provided that: "The amendments made by this subsection [amending this section] shall take effect on October 1, 2022."

#### "Secretary" Defined

Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.