33 U.S.C. § 2251 — Inland Waterways Users Board

Page 742 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2251 ‘‘(c) IMPLEMENTATION.— ‘‘(1) IN GENERAL.—In carrying out the pilot program under this section, the Secretary may— ‘‘(A) accept and expend funds provided by a non- Federal interest to carry out, for an authorized project (or a separable element of an authorized project), modernization activities for such project; or ‘‘(B) coordinate with the non-Federal interest in order to allow the non-Federal interest to carry out, for an authorized project (or a separable ele- ment of an authorized project), such modernization activities. ‘‘(2) NUMBER.—The Secretary shall select not more than 2 authorized projects to participate in the pilot program under paragraph (1). ‘‘(3) CONDITIONS.—Before carrying out moderniza- tion activities pursuant to paragraph (1)(B), a non- Federal interest shall— ‘‘(A) obtain any permit or approval required in connection with such activities under Federal or State law that would be required if the Secretary were to carry out such activities; and ‘‘(B) ensure that a final environmental impact statement or environmental assessment, as appro- priate, for such activities has been filed pursuant to the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.]. ‘‘(4) MONITORING.—For any modernization activities carried out by the non-Federal interest pursuant to this section, the Secretary shall regularly monitor and audit such activities to ensure that— ‘‘(A) the modernization activities are carried out in accordance with this section; and ‘‘(B) the cost of the modernization activities is reasonable. ‘‘(5) REQUIREMENTS.—The requirements of section 3142 of title 40, United States Code[,] shall apply to any modernization activities undertaken under or pursuant to this section, either by the Secretary or the non-Federal interest. ‘‘(d) AGREEMENTS.— ‘‘(1) ACTIVITIES CARRIED OUT BY NON-FEDERAL INTER- EST.— ‘‘(A) IN GENERAL.— ‘‘(i) WRITTEN AGREEMENT.—Before a non-Federal interest initiates modernization activities for an authorized project pursuant to this subsection (c)(1)(B), the non-Federal interest shall enter into a written agreement with the Secretary, under section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b), that requires the modernization activities to be carried out in accordance with— ‘‘(I) a plan approved by the Secretary; and ‘‘(II) any other terms and conditions specified by the Secretary in the agreement. ‘‘(ii) REQUIREMENTS.—A written agreement under clause (i) shall provide that the non-Fed- eral interest shall comply with the same legal and technical requirements that would apply if the modernization activities were carried out by the Secretary, including all mitigation required to offset environmental impacts of the activities, as determined by the Secretary. ‘‘(B) ALIGNMENT WITH ONGOING ACTIVITIES.—A written agreement under subparagraph (A) shall in- clude provisions that, to the maximum extent prac- ticable, align modernization activities under this section with ongoing operations and maintenance activities for the applicable authorized project. ‘‘(C) INDEMNIFICATION.—As part of a written agreement under subparagraph (A), the non-Federal interest shall agree to hold and save the United States free from liability for any and all damage that arises from the modernization activities car- ried out by the non-Federal interest pursuant to this section. ‘‘(2) ACTIVITIES CARRIED OUT BY SECRETARY.—For modernization activities to be carried out by the Sec- retary pursuant to subsection (c)(1)(A), the non-Fed- eral interest shall enter into a written agreement with the Secretary, containing such terms and condi- tions as the Secretary determines appropriate. ‘‘(e) REIMBURSEMENT.— ‘‘(1) AUTHORIZATION.—Subject to the availability of appropriations, the Secretary may reimburse a non- Federal interest for the costs of modernization ac- tivities carried out by the non-Federal interest pur- suant to an agreement entered into under subsection (d), or for funds provided to the Secretary under sub- section (c)(1)(A), if— ‘‘(A) the non-Federal interest complies with the agreement entered into under subsection (d); and ‘‘(B) with respect to modernization activities car- ried out by the non-Federal interest pursuant to the agreement, the Secretary determines that the non-Federal interest complied with all applicable Federal requirements in carrying out the mod- ernization activities. ‘‘(2) LIMITATION.—The Secretary may only reim- burse a non-Federal interest under paragraph (1) for costs of construction that would otherwise be paid from amounts appropriated from the general fund of the Treasury pursuant to section 102 of the Water Re- sources Development Act of 1986 (33 U.S.C. 2212). ‘‘(f) RULE OF CONSTRUCTION.—Nothing in this sec- tion— ‘‘(1) affects the responsibility of the Secretary for the operations and maintenance of the inland water- way system, as of the day before the date of enact- ment of this Act [Dec. 27, 2020], including the respon- sibility of the Secretary for the operations and main- tenance costs for any covered project after the mod- ernization activities are completed pursuant to this section; ‘‘(2) prohibits or prevents the use of Federal funds for operations and maintenance of the inland water- way system or any authorized project within the in- land waterway system; or ‘‘(3) prohibits or prevents the use of Federal funds for construction or major rehabilitation activities within the inland waterway system or for any author- ized project within the inland waterway system. ‘‘(g) NOTIFICATION.—If a non-Federal interest notifies the Secretary that the non-Federal interest intends to carry out modernization activities for an authorized project, or separable element thereof, pursuant to this section, the Secretary shall provide written notice to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives con- cerning the intent of the non-Federal interest. ‘‘(h) SUNSET.— ‘‘(1) IN GENERAL.—The authority of the Secretary to enter into an agreement under this section shall ter- minate on the date that is 5 years after the date of enactment of this Act. ‘‘(2) REIMBURSEMENT ELIGIBILITY.—The termination of authority under paragraph (1) shall not extinguish the eligibility of a non-Federal interest to seek reim- bursement under subsection (e).’’ § 2251. Inland Waterways Users Board (a) Establishment of Users Board There is hereby established an Inland Water- way Users Board (hereinafter in this section re- ferred to as the ‘‘Users Board’’) composed of the eleven members selected by the Secretary, one of whom shall be designated by the Secretary as Chairman. The members shall be selected so as to represent various regions of the country and a spectrum of the primary users and shippers utilizing the inland and intracoastal waterways for commercial purposes. Due consideration shall be given to assure a balance among the members based on the ton-mile shipments of the various categories of commodities shipped on in- Page 743 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2251 land waterways. The Secretary of the Army shall designate, and the Secretaries of Agri- culture, Transportation, and Commerce may each designate, a representative to act as an ob- server of the Users Board. (b) Duties of Users Board (1) In general The Users Board shall meet not less fre- quently than semiannually to develop and make recommendations to the Secretary and Congress regarding the inland waterways and inland harbors of the United States. (2) Advice and recommendations For commercial navigation features and components of the inland waterways and in- land harbors of the United States, the Users Board shall provide— (A) prior to the development of the budget proposal of the President for a given fiscal year, advice and recommendations to the Secretary regarding construction and reha- bilitation priorities and spending levels; (B) advice and recommendations to Con- gress regarding any feasibility report for a project on the inland waterway system that has been submitted to Congress pursuant to section 2282d of this title; (C) advice and recommendations to Con- gress regarding an increase in the authorized cost of those features and components; (D) not later than 60 days after the date of the submission of the budget proposal of the President to Congress, advice and rec- ommendations to Congress regarding con- struction and rehabilitation priorities and spending levels; and (E) advice and recommendations on the de- velopment of a long-term capital investment program in accordance with subsection (d). (3) Project development teams The chairperson of the Users Board shall ap- point a representative of the Users Board to serve as an advisor to the project development team for a qualifying project or the study or design of a commercial navigation feature or component of the inland waterways and inland harbors of the United States. (4) Independent judgment Any advice or recommendation made by the Users Board to the Secretary shall reflect the independent judgment of the Users Board. (c) Duties of Secretary The Secretary shall— (1) communicate not less frequently than once each quarter to the Users Board the sta- tus of the study, design, or construction of all commercial navigation features or compo- nents of the inland waterways or inland har- bors of the United States; and (2) submit to the Users Board a courtesy copy of all completed feasibility reports relat- ing to a commercial navigation feature or component of the inland waterways or inland harbors of the United States. (d) Capital investment program (1) In general Not later than 1 year after June 10, 2014, the Secretary, in coordination with the Users Board, shall develop and submit to Congress a report describing a 20-year program for mak- ing capital investments on the inland and in- tracoastal waterways based on the application of objective, national project selection prioritization criteria. (2) Consideration In developing the program under paragraph (1), the Secretary shall take into consider- ation the 20-year capital investment strategy contained in the Inland Marine Transpor- tation System (IMTS) Capital Projects Busi- ness Model, Final Report published on April 13, 2010, as approved by the Users Board. (3) Criteria In developing the plan and prioritization cri- teria under paragraph (1), the Secretary shall ensure, to the maximum extent practicable, that investments made under the 20-year pro- gram described in paragraph (1)— (A) are made in all geographical areas of the inland waterways system; and (B) ensure efficient funding of inland wa- terways projects. (4) Strategic review and update Not later than 5 years after June 10, 2014, and not less frequently than once every 5 years thereafter, the Secretary, in coordina- tion with the Users Board, shall— (A) submit to Congress and make publicly available a strategic review of the 20-year program in effect under this subsection, which shall identify and explain any changes to the project-specific recommendations contained in the previous 20-year program (including any changes to the prioritization criteria used to develop the updated rec- ommendations); and (B) make revisions to the program, as ap- propriate. (e) Project management plans The chairperson of the Users Board and the project development team member appointed by the chairperson under subsection (b)(3) may sign the project management plan for the qualifying project or the study or design of a commercial navigation feature or component of the inland waterways and inland harbors of the United States. (f) Administration (1) In general The Users Board shall be subject to chapter 10 of title 5, other than section 1013, and, with the consent of the appropriate agency head, the Users Board may use the facilities and services of any Federal agency. (2) Members not considered special Govern- ment employees For the purposes of complying with chapter 10 of title 5, the members of the Users Board shall not be considered special Government employees (as defined in section 202 of title 18). (3) Travel expenses Non-Federal members of the Users Board while engaged in the performance of their du- Page 744 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2252 ties away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5. (Pub. L. 99–662, title III, § 302, Nov. 17, 1986, 100 Stat. 4111; Pub. L. 106–109, § 8(a), Nov. 24, 1999, 113 Stat. 1495; Pub. L. 113–121, title II, § 2002(d), June 10, 2014, 128 Stat. 1262; Pub. L. 117–286, § 4(a)(202), Dec. 27, 2022, 136 Stat. 4328.) Editorial Notes AMENDMENTS 2022—Subsec. (f)(1). Pub. L. 117–286, § 4(a)(202)(A), sub- stituted ‘‘chapter 10 of title 5, other than section 1013,’’ for ‘‘the Federal Advisory Committee Act (5 U.S.C. App.), other than section 14,’’. Subsec. (f)(2). Pub. L. 117–286, § 4(a)(202)(B), sub- stituted ‘‘chapter 10 of title 5,’’ for ‘‘the Federal Advi- sory Committee Act (5 U.S.C. App.),’’. 2014—Subsec. (b). Pub. L. 113–121, § 2002(d)(1), added subsec. (b) and struck out former subsec. (b). Prior to amendment, text read as follows: ‘‘The Users Board shall meet at least semi-annually to develop and make recommendations to the Secretary regarding construc- tion and rehabilitation priorities and spending levels on the commercial navigational features and compo- nents of the inland waterways and inland harbors of the United States for the following fiscal years. Any advice or recommendation made by the Users Board to the Secretary shall reflect the independent judgment of the Users Board. Notwithstanding section 3003 of Public Law 104–66 (31 U.S.C. 1113 note; 109 Stat. 734), the Users Board shall, by December 31, 1987, and annually there- after file such recommendations with the Secretary and with the Congress.’’ Subsecs. (c) to (f). Pub. L. 113–121, § 2002(d)(2), added subsecs. (c) to (f) and struck out former subsec. (c). Prior to amendment, text read as follows: ‘‘The Users Board shall be subject to the Federal Advisory Com- mittee Act, other than section 14, and, with the consent of the appropriate agency head, the Users Board may use the facilities and services of any Federal agency. Non-Federal members of the Users Board while engaged in the performance of their duties away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsist- ence, as authorized by section 5703 of title 5.’’ 1999—Subsec. (b). Pub. L. 106–109, in last sentence, substituted ‘‘Notwithstanding section 3003 of Public Law 104–66 (31 U.S.C. 1113 note; 109 Stat. 734), the’’ for ‘‘The’’. § 2252. Project delivery process reforms (a) Requirements for qualifying projects With respect to each qualifying project, the Secretary shall require— (1) for each project manager, that— (A) the project manager have formal project management training and certifi- cation; and (B) the project manager be assigned from among personnel certified by the Chief of Engineers; and (2) for an applicable cost estimation, that— (A) the Secretary utilize a risk-based cost estimate with a confidence level of at least 80 percent; and (B) the cost estimate be developed— (i) for a qualifying project that requires an increase in the authorized amount in accordance with section 2280 of this title, during the preparation of a post-authoriza- tion change report or other similar deci- sion document; (ii) for a qualifying project for which the first construction contract has not been awarded, prior to the award of the first construction contract; (iii) for a qualifying project without a completed feasibility report in accordance with section 2282 of this title, prior to the completion of such a report; and (iv) for a qualifying project with a com- pleted feasibility report in accordance with section 2282 of this title that has not yet been authorized, during design for the qualifying project. (b) Additional project delivery process reforms Not later than 18 months after June 10, 2014, the Secretary shall— (1) establish a system to identify and apply on a continuing basis best management prac- tices from prior or ongoing qualifying projects to improve the likelihood of on-time and on- budget completion of qualifying projects; (2) evaluate early contractor involvement acquisition procedures to improve on-time and on-budget project delivery performance; and (3) implement any additional measures that the Secretary determines will achieve the pur- poses of this subtitle, including— (A) the implementation of applicable prac- tices and procedures developed pursuant to management by the Secretary of an applica- ble military construction program; (B) the development and use of a portfolio of standard designs for inland navigation locks, incorporating the use of a center of expertise for the design and review of quali- fying projects; (C) the use of full-funding contracts or for- mulation of a revised continuing contracts clause; and (D) the establishment of procedures for recommending new project construction starts using a capital projects business model. (c) Pilot projects (1) In general Subject to paragraph (2), the Secretary may carry out pilot projects to evaluate processes and procedures for the study, design, and con- struction of qualifying projects. (2) Inclusions At a minimum, the Secretary shall carry out pilot projects under this subsection to evalu- ate— (A) early contractor involvement in the development of features and components; (B) an appropriate use of continuing con- tracts for the construction of features and components; and (C) applicable principles, procedures, and processes used for military construction projects. (Pub. L. 113–121, title II, § 2002, June 10, 2014, 128 Stat. 1261.) Editorial Notes REFERENCES IN TEXT This subtitle, referred to in subsec. (b)(3), is subtitle A (§§ 2001–2013) of title II of Pub. L. 113–121, which en-