33 U.S.C. § 2238c — Additional measures at donor ports and

Page 734 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2238c AMENDMENTS 2020—Pub. L. 116–260 amended section generally. Prior to amendment, text read as follows: ‘‘Any discretionary appropriation for the Corps of Engineers derived from the Harbor Maintenance Trust Fund (not to exceed the total amount deposited in the Harbor Maintenance Trust Fund in the prior fiscal year) shall be subtracted from the estimate of discretionary budget authority and outlays for any estimate of an appropriations Act under the Congressional Budget and Impoundment Con- trol Act of 1974 or the Balanced Budget and Emergency Deficit Control Act of 1985: Provided, That the modifica- tions described in this section shall not take effect until the earlier of January 1, 2021 or the date of enact- ment of legislation authorizing the development of water resources and shall remain in effect thereafter.’’ § 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 mari- time 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 mainte- nance fee under section 24.24 of title 19, Code of Federal Regulations (or a suc- cessor 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 fund- ing of the Harbor Maintenance Trust Fund on an average annual basis for the pre- vious 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 percent- age described in subparagraph (A)(iii), pay- ments 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 mainte- nance fee under section 24.24 of title 19, Code of Federal Regulations (or any successor regulation); and (B)(i) at which energy commodities com- prised greater than 25 percent of all commer- cial activity by tonnage on an average an- nual 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 es- tablished 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 mainte- nance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regu- lation); (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 Mainte- nance 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 fis- cal 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, me- dium-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 di- vided equally among all States with an en- ergy transfer port; (B) shall be made available to a port as ei- ther a donor port, medium-sized donor port, or an energy transfer port, and no port may receive amounts from more than 1 designa- tion; and Page 735 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2238c (C) for donor ports and medium-sized donor ports— (i) 50 percent of the funds shall be equal- ly divided between the eligible donor ports as authorized by this section; and (ii) 50 percent of the funds shall be di- vided between the eligible donor ports and eligible medium-sized donor ports based on the percentage of the total harbor mainte- nance tax revenues generated at each eli- gible 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 enter- ing cargo through that port, as calculated by the Secretary according to the value of discre- tionary cargo; (2) for expanded uses; or (3) for environmental remediation related to dredging berths and Federal navigation chan- nels. (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 Commis- sioner 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 avail- able 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 com- prise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund estab- lished 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 do- mestic cargo and cruise passengers)’’ after ‘‘taxes col- lected’’ 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 pre- vious 3 fiscal years’’ for ‘‘in fiscal year 2012’’. Subsec. (a)(5)(B). Pub. L. 116–260, § 104(b)(1)(B), sub- stituted ‘‘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 har- bor 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 estab- lished under section 9505 of title 26;’’. Subsec. (a)(9)(C). Pub. L. 116–260, § 104(b)(1)(D)(ii), in- serted ‘‘(including the estimated taxes related to do- mestic cargo and cruise passengers)’’ after ‘‘taxes col- lected’’ 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 pre- vious 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 fol- lows: ‘‘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). Page 736 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2238d 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), redesig- nated par. (3) as (4). Former par. (4) redesignated (5). Subsec. (a)(5). Pub. L. 114–322, § 1110(1)(A), redesig- nated par. (4) as (5). Former par. (5) redesignated (6). Subsec. (a)(5)(A). Pub. L. 114–322, § 1110(1)(D), sub- stituted ‘‘Code of Federal Regulations’’ for ‘‘Code of Federal Regulation’’. Subsec. (a)(6), (7). Pub. L. 114–322, § 1110(1)(A), redesig- nated 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 sub- par. (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. Cus- toms and Border Protection’’ and ‘‘value of discre- tionary 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 im- porters 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 pro- vided 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 sec- tion 2 of Pub. L. 113–121, set out as a note under section 2201 of this title. § 2238d. Maintenance of harbors of refuge The Secretary is authorized to maintain feder- ally authorized harbors of refuge to restore and maintain the authorized dimensions of the har- bors. (Pub. L. 114–322, title I, § 1109, Dec. 16, 2016, 130 Stat. 1634.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Development Act of 2016, and also as part of the Water Infrastructure Improvements for the Nation Act, also known as the WIIN Act, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 1002 of Pub. L. 114–322, set out as a note under sec- tion 2201 of this title. § 2238e. Additional projects for underserved com- munity harbors (a) In general Subject to the availability of appropriations designated by statute as being for the purpose of carrying out this section, the Secretary may carry out projects for underserved community harbors for purposes of sustaining water-depend- ent commercial and recreational activities at such harbors and for purposes of contributing to ecosystem restoration. (b) Beneficial use (1) Justification The Secretary may carry out a project under this section involving a disposal option for the beneficial use of dredged material that is not the least cost disposal option if the Secretary determines that the incremental cost of the disposal option is reasonable pursuant to the standard described in section 2326(d)(1) of this title. (2) Cost share The non-Federal share of the incremental cost of a project carried out under this section involving a disposal option for the beneficial use of dredged material that is not the least cost disposal option shall be determined as provided under subsections (a) through (d) of section 2213 of this title. (c) Prioritization The Secretary shall prioritize carrying out projects using funds made available under this section based on an assessment of— (1) the local or regional economic benefits of the project; (2) the environmental benefits of the project, including the benefits to the aquatic environ- ment to be derived from the creation of wet- land and control of shoreline erosion; and (3) other social effects of the project, includ- ing protection against loss of life and con- tributions to local or regional cultural herit- age. (d) Clarification The Secretary shall not require the non-Fed- eral interest for a project carried out under this section to perform additional operation and maintenance activities at the beneficial use placement site or the disposal site for such project as a condition of receiving assistance under this section. (e) Federal participation limit The Federal share of the cost of a project under this section shall not exceed $10,000,000. (f) Statutory construction Projects carried out under this section shall be in addition to operation and maintenance ac-