33 U.S.C. § 2236 — Port or harbor dues

Page 725 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2236 (g) Progress reports Six months before the final date of the sched- ule, the Secretary shall provide to Congress a written progress report for each navigation project for a harbor or inland harbor subject to this section. The Secretary shall transmit the report to the Committee on Public Works and Transportation of the House of Representatives and the Committee on Environment and Public Works of the Senate. The report shall summa- rize all work completed under the agreement and shall include a detailed work program that will assure completion of all remaining work under the agreement. (h) Final decision Not later than the final day of the schedule, the Secretary shall notify the non-Federal inter- est of the final decision on the project and whether the permit or permits have been issued. (i) Report on timesavings methods Not later than one year after November 17, 1986, the Secretary shall prepare and transmit to Congress a report estimating the time required for the issuance of all Federal, State, and local permits for the construction of navigation projects for harbors or inland harbors and asso- ciated activities. The Secretary shall include in that report recommendations for further reduc- ing the amount of time required for the issuance of those permits, including any proposed changes in existing law. (Pub. L. 99–662, title II, § 205, Nov. 17, 1986, 100 Stat. 4101.) Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Public Works and Transportation of House of Representatives treated as referring to Com- mittee on Transportation and Infrastructure of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Con- gress. § 2234. Nonapplicability to Saint Lawrence Sea- way Sections 2231, 2232, and 2233 of this title do not apply to any harbor or inland harbor project for that portion of the Saint Lawrence Seaway ad- ministered by the Great Lakes St. Lawrence Seaway Development Corporation. (Pub. L. 99–662, title II, § 206, Nov. 17, 1986, 100 Stat. 4102; Pub. L. 116–260, div. AA, title V, § 512(c)(5)(A), Dec. 27, 2020, 134 Stat. 2756.) Editorial Notes AMENDMENTS 2020—Pub. L. 116–260 substituted ‘‘Great Lakes St. Lawrence Seaway Development Corporation’’ for ‘‘Saint Lawrence Seaway Development Corporation’’. § 2235. Construction in usable increments Any navigation project for a harbor or inland harbor authorized by this subchapter or any other provision of law enacted before, on, or after November 17, 1986, may be constructed in usable increments. (Pub. L. 99–662, title II, § 207, Nov. 17, 1986, 100 Stat. 4102.) § 2236. Port or harbor dues (a) Consent of Congress Subject to the following conditions, a non- Federal interest may levy port or harbor dues (in the form of tonnage duties or fees) on a ves- sel engaged in trade entering or departing from a harbor and on cargo loaded on or unloaded from that vessel under clauses 2 and 3 of section 10, and under clause 3 of section 8, of Article 1 of the Constitution: (1) Purposes Port or harbor dues may be levied only in conjunction with a harbor navigation project whose construction is complete (including a usable increment of the project) and for the following purposes and in amounts not to ex- ceed those necessary to carry out those pur- poses: (A)(i) to finance the non-Federal share of construction and operation and maintenance costs of a navigation project for a harbor under the requirements of section 2211 of this title; or (ii) to finance the cost of construction and operation and maintenance of a navigation project for a harbor under section 2232 or 2233 of this title; and (B) provide emergency response services in the harbor, including contingency planning, necessary personnel training, and the pro- curement of equipment and facilities. (2) Limitation on port or harbor dues for emer- gency service Port or harbor dues may not be levied for the purposes described in paragraph (1)(B) of this subsection after the dues cease to be lev- ied for the purposes described in paragraph (1)(A) of this subsection. (3) General limitations (A) Port or harbor dues may not be levied under this section in conjunction with a deep- ening feature of a navigation improvement project on any vessel if that vessel, based on its design draft, could have utilized the project at mean low water before construction. In the case of project features which solely— (i) widen channels or harbors, (ii) create or enlarge bend easings, turning basins or anchorage areas, or provide pro- tected areas, or (iii) remove obstructions to navigation, only vessels at least comparable in size to those used to justify these features may be charged under this section. (B) In developing port or harbor dues that may be charged under this section on vessels for project features constructed under this subchapter, the non-Federal interest may con- sider such criteria as: elapsed time of passage, safety of passage, vessel economy of scale, under keel clearance, vessel draft, vessel squat, vessel speed, sinkage, and trim. (C) Port or harbor dues authorized by this section shall not be imposed on— (i) vessels owned and operated by the United States Government, a foreign coun- try, a State, or a political subdivision of a country or State, unless engaged in commer- cial services; Page 726 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2236 1 See References in Text note below. 2 So in original. No par. (2) has been enacted. (ii) towing vessels, vessels engaged in dredging activities, or vessels engaged in intraport movements; or (iii) vessels with design drafts of 20 feet or less when utilizing general cargo and deep- draft navigation projects. (4) Formulation of port or harbor dues Port or harbor dues may be levied only on a vessel entering or departing from a harbor and its cargo on a fair and equitable basis. In for- mulating port and harbor dues, the non-Fed- eral interest shall consider— (A) the direct and indirect cost of con- struction, operations, and maintenance, and providing the facilities and services under paragraph (1) of this subsection; (B) the value of those facilities and serv- ices to the vessel and cargo; (C) the public policy or interest served; and (D) any other pertinent factors. (5) Notice and hearing (A) Before the initial levy of or subsequent modification to port or harbor dues under this section, a non-Federal interest shall transmit to the Secretary— (i) the text of the proposed law, regulation, or ordinance that would establish the port or harbor dues, including provisions for their administration, collection, and enforcement; (ii) the name, address, and telephone num- ber of an official to whom comments on and requests for further information on the pro- posal are to be directed; (iii) the date by which comments on the proposal are due and a date for a public hearing on the proposal at which any inter- ested party may present a statement; how- ever, the non-Federal interest may not set a hearing date earlier than 45 days after the date of publication of the notice in the Fed- eral Register required by subparagraph (B) of this paragraph or set a deadline for re- ceipt of comments earlier than 60 days after the date of publication; and (iv) a written statement signed by an ap- propriate official that the non-Federal inter- est agrees to be governed by the provisions of this section. (B) On receiving from a non-Federal interest the information required by subparagraph (A) of this paragraph, the Secretary shall trans- mit the material required by clauses (i) through (iii) of subparagraph (A) of this para- graph to the Federal Register for publication. (C) Port or harbor dues may be imposed by a non-Federal interest only after meeting the conditions of this paragraph. (6) Requirements on non-Federal interest A non-Federal interest shall— (A) file a schedule of any port or harbor dues levied under this subsection with the Secretary and the Federal Maritime Com- mission, which the Commission shall make available for public inspection; (B) provide to the Comptroller General of the United States on request of the Comp- troller General any records or other evi- dence that the Comptroller General con- siders to be necessary and appropriate to en- able the Comptroller General to carry out the audit required under subsection (b) 1 of this section; (C) designate an officer or authorized rep- resentative, including the Secretary of the Treasury acting on a cost-reimbursable basis, to receive tonnage certificates and cargo manifests from vessels which may be subject to the levy of port or harbor dues, export declarations from shippers, con- signors, and terminal operators, and such other documents as the non-Federal interest may by law, regulation, or ordinance require for the imposition, computation, and collec- tion of port or harbor dues; and (D) consent expressly to the exclusive ex- ercise of Federal jurisdiction under sub- section (c) 1 of this section. (b) Jurisdiction (1) The district court of the United States for the district in which is located a non-Federal in- terest that levies port or harbor dues under this section has original and exclusive jurisdiction over any matter arising out of or concerning, the imposition, computation, collection, and en- forcement of port or harbor dues by a non-Fed- eral interest under this section. (2) Any person who suffers legal wrong or is adversely affected or aggrieved by the imposi- tion by a non-Federal interest of a proposed scheme or schedule of port or harbor dues under this section may, not later than 180 days after the date of hearing under subsection (a)(5)(A)(iii) of this section, commence an action to seek judicial review of that proposed scheme or schedule in the appropriate district court under paragraph (1). (3) On petition of the Attorney General or any other party, that district court may— (A) grant appropriate injunctive relief to re- strain an action by that non-Federal interest violating the conditions of consent in sub- section (a) of this section; (B) order the refund of any port or harbor dues not lawfully collected; and (C) grant other appropriate relief or remedy. (c) Collection of duties (1) 2 Delivery of certificate and manifest (A) Upon arrival of vessel Upon the arrival of a vessel in a harbor in which the vessel may be subject to the levy of port or harbor dues under this section, the master of that vessel shall, within forty- eight hours after arrival and before any cargo is unloaded from that vessel, deliver to the appropriate authorized representative appointed under subsection (a)(6)(C) of this section a tonnage certificate for the vessel and a manifest of the cargo aboard that ves- sel or, if the vessel is in ballast, a declara- tion to that effect. (B) Before departure of vessel The shipper, consignor, or terminal oper- ator having custody of any cargo to be load- Page 727 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2238 ed on board a vessel while the vessel is in a harbor in which the vessel may be subject to the levy of port or harbor dues under this section shall, within forty-eight hours before departure of that vessel, deliver to the ap- propriate authorized representative ap- pointed under subsection (a)(6)(C) of this sec- tion an export declaration specifying the cargo to be loaded on board that vessel. (d) Enforcement At the request of an authorized representative referred to in subsection (a)(6)(C) of this section, the Secretary of the Treasury may: (1) withhold the clearance required by sec- tion 60105 of title 46 for a vessel if the master, owner, or operator of a vessel subject to port or harbor dues under this section fails to com- ply with the provisions of this section includ- ing any non-Federal law, regulation or ordi- nance issued hereunder; and (2) assess a penalty or initiate a forfeiture of the cargo in the same manner and under the same procedures as are applicable for failure to pay customs duties under the Tariff Act of 1930 (19 U.S.C. 1202 et seq.) if the shipper, con- signor, consignee, or terminal operator having title to or custody of cargo subject to port or harbor dues under this section fails to comply with the provisions of this section including any non-Federal law, regulation, or ordinance issued hereunder. (e) Maritime Lien Port or harbor dues levied under this section against a vessel constitute a maritime lien against the vessel and port or harbor dues levied against cargo constitute a lien against the cargo that may be recovered in an action in the dis- trict court of the United States for the district in which the vessel or cargo is found. (Pub. L. 99–662, title II, § 208, Nov. 17, 1986, 100 Stat. 4102; Pub. L. 104–66, title I, § 1021(g), Dec. 21, 1995, 109 Stat. 713.) Editorial Notes REFERENCES IN TEXT Subsection (b) of this section, referred to in subsec. (a)(6)(B), which related to audits, was struck out by Pub. L. 104–66 and subsec. (c) was redesignated as sub- sec. (b). Subsection (c) of this section, referred to in subsec. (a)(6)(D), which related to jurisdiction, was redesig- nated as subsec. (b) by Pub. L. 104–66. The Tariff Act of 1930, referred to in subsec. (d)(2), is act June 17, 1930, ch. 497, 46 Stat. 590, which is classified generally to chapter 4 (§ 1202 et seq.) of Title 19, Cus- toms Duties. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. CODIFICATION In subsec. (d)(1), ‘‘section 60105 of title 46’’ substituted for ‘‘section 4197 of the Revised Statutes of the United States (46 U.S.C. App. 91)’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act en- acted section 60105 of Title 46, Shipping. AMENDMENTS 1995—Subsecs. (b) to (f). Pub. L. 104–66 redesignated subsecs. (c) to (f) as (b) to (e), respectively, and struck out heading and text of former subsec. (b). Text read as follows: ‘‘The Comptroller General of the United States shall— ‘‘(1) carry out periodic audits of the operations of non-Federal interests that elect to levy port or har- bor dues under this section to determine if the condi- tions of subsection (a) of this section are being com- plied with; ‘‘(2) submit to each House of the Congress a written report containing the findings resulting from each audit; and ‘‘(3) make any recommendations that the Comp- troller General considers appropriate regarding the compliance of those non-Federal interests with the requirements of this section.’’ § 2237. Information for national security Any non-Federal interest shall provide the United States the information necessary for military readiness planning and harbor, inland harbor, and national security, including infor- mation necessary to obtain national security clearances for individuals employed in critical harbor and inland harbor positions. (Pub. L. 99–662, title II, § 209, Nov. 17, 1986, 100 Stat. 4106.) § 2238. Authorization of appropriations (a) Trust fund There are authorized to be appropriated out of the Harbor Maintenance Trust Fund, established by section 9505 of title 26, for each fiscal year such sums as may be necessary to pay— (1) 100 percent of the eligible operations and maintenance costs of those portions of the Saint Lawrence Seaway operated and main- tained by the Great Lakes St. Lawrence Sea- way Development Corporation for such fiscal year; and (2) up to 100 percent of the eligible oper- ations and maintenance costs assigned to com- mercial navigation of all harbors and inland harbors within the United States. (b) General fund There are authorized to be appropriated out of the general fund of the Treasury of the United States for each fiscal year such sums as may be necessary to pay the balance of all eligible oper- ations and maintenance costs not provided by payments from the Harbor Maintenance Trust Fund under this section. (c) Operation and maintenance of harbor projects (1) In general To the maximum extent practicable, the Secretary shall make expenditures to pay for operation and maintenance costs of the har- bors and inland harbors referred to in sub- section (a)(2), including expenditures of funds appropriated from the Harbor Maintenance Trust Fund, based on an equitable allocation of funds among all such harbors and inland harbors. (2) Criteria (A) In general In determining an equitable allocation of funds under paragraph (1), the Secretary shall— (i) consider the information obtained in the assessment conducted under sub- section (e);