Collapse to view only § 2231. Study of water resources development projects by non-Federal interests
- § 2231. Study of water resources development projects by non-Federal interests
- § 2232. Construction of water resources development projects by non-Federal interests
- § 2233. Coordination and scheduling of Federal, State, and local actions
- § 2234. Nonapplicability to Saint Lawrence Seaway
- § 2235. Construction in usable increments
- § 2236. Port or harbor dues
- § 2237. Information for national security
- § 2238. Authorization of appropriations
- § 2238a. Estimate of harbor maintenance needs
- § 2238b. Funding for harbor maintenance programs
- § 2238b-1. Budgetary treatment expansion and adjustment for the Harbor Maintenance Trust Fund
- § 2238c. Additional measures at donor ports and energy transfer ports
- § 2238d. Maintenance of harbors of refuge
- § 2238e. Additional projects for underserved community harbors
- § 2239. Repealed.
- § 2240. Emergency response services
- § 2241. Definitions
- § 2242. Remote and subsistence harbors
- § 2243. Arctic deep draft port development partnerships
§ 2231. Study of water resources development projects by non-Federal interests
(a) Submission to Secretary
(1) In general
(2) Guidelines
To assist non-Federal interests, the Secretary, as soon as practicable, shall issue guidelines for the formulation of feasibility studies of water resources development projects undertaken by non-Federal interests to—
(A) ensure that any feasibility study with respect to which the Secretary submits an assessment to Congress under subsection (c) complies with all of the requirements that would apply to a feasibility study undertaken by the Secretary; and
(B) provide sufficient information for the formulation of the studies, including processes and procedures related to reviews and assistance under subsection (e).
(b) Review by Secretary
(1) In general
(2) Timing
The Secretary may not submit to Congress an assessment of a feasibility study under this section until such time as the Secretary—
(A) determines that the feasibility study complies with all of the requirements that would apply to a feasibility study undertaken by the Secretary; and
(B) completes all of the Federal analyses, reviews, and compliance processes under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), that would be required with respect to the proposed project if the Secretary had undertaken the feasibility study.
(3) Initiation of review
(A) Request
(i) Submission
(ii) Effect
(B) Deadline
(4) Notification
(5) Status updates
(c) Submission to Congress
(1) Review and submission of studies to Congress
Not later than 180 days after the completion of review of a feasibility study under subsection (b), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an assessment that describes—
(A) the results of the Secretary’s review of the study under subsection (b), including a determination of whether the project is feasible;
(B) any recommendations the Secretary may have concerning the plan or design of the project; and
(C) any conditions the Secretary may require for construction of the project.
(2) Limitation
(d) Credit
(e) Review and technical assistance
(1) Review
(2) Technical assistance
(3) Limitation
(4) Impartial decisionmaking
(5) Savings provision
The provision of technical assistance by the Secretary under paragraph (2)—
(A) shall not be considered to be an approval or endorsement of the feasibility study; and
(B) shall not affect the responsibilities of the Secretary under subsections (b) and (c).
(Pub. L. 99–662, title II, § 203, Nov. 17, 1986, 100 Stat. 4098; Pub. L. 113–121, title I, § 1014(a), June 10, 2014, 128 Stat. 1219; Pub. L. 114–322, title I, § 1126, Dec. 16, 2016, 130 Stat. 1648; Pub. L. 115–270, title I, § 1152, Oct. 23, 2018, 132 Stat. 3788; Pub. L. 116–260, div. AA, title I, § 161(a), Dec. 27, 2020, 134 Stat. 2665.)
§ 2232. Construction of water resources development projects by non-Federal interests
(a) Water resources development project definedIn this section, the term “water resources development project” means a project recommendation that results from—
(1) a feasibility report, as such term is defined in section 2282d(f) 1
1 See References in Text note below.
of this title;(2) a completed feasibility study developed under section 2231 of this title; or
(3) a final feasibility study for water resources development and conservation and other purposes that is specifically authorized by Congress to be carried out by the Secretary.
(b) Authority
(1) In generalA non-Federal interest may carry out a federally authorized water resources development project, or separable element thereof—
(A) in accordance with a plan approved by the Secretary for the project or separable element; and
(B) subject to any conditions that the Secretary may require, including any conditions specified under section 2231(c)(3) of this title.
(2) ConditionsBefore carrying out a water resources development project, or separable element thereof, under this section, a non-Federal interest shall—
(A) obtain any permit or approval required in connection with the project or separable element under Federal or State law, except as provided in paragraph (3); and
(B) ensure that a final environmental impact statement or environmental assessment, as appropriate, for the project or separable element has been filed.
(3) Permit exception
(A) In general
(B) Written agreement
(C) Certifications
(4) Data sharing
(A) In general
(B) Deadline
(C) Limitation
(c) Studies and engineering
(1) In general
(2) No waiver
(3) Limitation
(4) Impartial decisionmaking
(d) Credit or reimbursement
(1) General ruleSubject to paragraph (3), a project or separable element of a project carried out by a non-Federal interest under this section shall be eligible for credit or reimbursement for the Federal share of work carried out on a project or separable element of a project if—
(A) before initiation of construction of the project or separable element—
(i) the Secretary approves the plans for construction of the project or separable element of the project by the non-Federal interest;
(ii) the Secretary determines, before approval of the plans, that the project or separable element of the project is feasible; and
(iii) the non-Federal interest enters into a written agreement with the Secretary under section 1962d–5b of title 42, including an agreement to pay the non-Federal share, if any, of the cost of operation and maintenance of the project; and
(B) the Secretary determines that all Federal laws and regulations applicable to the construction of a water resources development project, and any conditions identified under subsection (b)(1)(B), were complied with by the non-Federal interest during construction of the project or separable element of the project.
(2) Application of creditThe Secretary may apply credit toward—
(A) the non-Federal share of authorized separable elements of the same project; or
(B) subject to the requirements of this section and section 2223 of this title, at the request of the non-Federal interest, the non-Federal share of a different water resources development project.
(3) RequirementsThe Secretary may only apply credit or provide reimbursement under paragraph (1) if—
(A) Congress has authorized construction of the project or separable element of the project;
(B) the Secretary certifies that the project has been constructed in accordance with—
(i) all applicable permits or approvals; and
(ii) this section; and
(C) in the case of reimbursement, appropriations are provided by Congress for such purpose.
(4) MonitoringThe Secretary shall regularly monitor and audit any water resources development project, or separable element of a water resources development project, constructed by a non-Federal interest under this section to ensure that—
(A) the construction is carried out in compliance with the requirements of this section; and
(B) the costs of the construction are reasonable.
(5) Discrete segments
(A) In generalThe Secretary may authorize credit or reimbursement under this subsection for carrying out a discrete segment of a federally authorized water resources development project, or separable element thereof, before final completion of the project or separable element if—
(i) except as provided in clause (ii), the Secretary determines that the discrete segment satisfies the requirements of paragraphs (1) through (4) in the same manner as the project or separable element; and
(ii) notwithstanding paragraph (1)(A)(ii), the Secretary determines, before the approval of the plans under paragraph (1)(A)(i), that the discrete segment is technically feasible and environmentally acceptable.
(B) DeterminationCredit or reimbursement may not be made available to a non-Federal interest pursuant to this paragraph until the Secretary determines that—
(i) the construction of the discrete segment for which credit or reimbursement is requested is complete; and
(ii) the construction is consistent with the authorization of the applicable water resources development project, or separable element thereof, and the plans approved under paragraph (1)(A)(i).
(C) Written agreement
(i) In generalAs part of the written agreement required under paragraph (1)(A)(iii), a non-Federal interest to be eligible for credit or reimbursement under this paragraph shall—(I) identify any discrete segment that the non-Federal interest may carry out; and(II) agree to the completion of the water resources development project, or separable element thereof, with respect to which the discrete segment is a part and establish a timeframe for such completion.
(ii) Remittance
(D) Discrete segment definedIn this paragraph, the term “discrete segment” means a physical portion of a water resources development project to be carried out, or separable element thereof—
(i) described by a non-Federal interest in a written agreement required under paragraph (1)(A)(iii); and
(ii) that the non-Federal interest can operate and maintain, independently and without creating a hazard, in advance of final completion of the water resources development project, or separable element thereof.
(e) Notification of committees
(f) Operation and maintenance
(1) Assumption of maintenanceWhenever a non-Federal interest carries out improvements to a federally authorized harbor or inland harbor, the Secretary shall be responsible for operation and maintenance in accordance with section 2211(b) of this title if—
(A) before construction of the improvements—
(i) the Secretary determines that the improvements are feasible and consistent with the purposes of this subchapter; and
(ii) the Secretary and the non-Federal interest execute a written agreement relating to operation and maintenance of the improvements;
(B) the Secretary certifies that the project or separable element of the project is constructed in accordance with applicable permits and appropriate engineering and design standards; and
(C) the Secretary does not find that the project or separable element is no longer feasible.
(2) Federal financial participation in the costs of a locally preferred plan.
(Pub. L. 99–662, title II, § 204, Nov. 17, 1986, 100 Stat. 4099; Pub. L. 101–640, title III, § 303, Nov. 28, 1990, 104 Stat. 4634; Pub. L. 113–121, title I, § 1014(b)(1), June 10, 2014, 128 Stat. 1220; Pub. L. 114–322, title I, § 1127, Dec. 16, 2016, 130 Stat. 1648; Pub. L. 115–270, title I, § 1153, Oct. 23, 2018, 132 Stat. 3789; Pub. L. 116–260, div. AA, title I, § 105(a), (b), Dec. 27, 2020, 134 Stat. 2622.)
§ 2233. Coordination and scheduling of Federal, State, and local actions
(a) Notice of intent
(b) Procedural requirements
(c) Scheduling agreement
(d) Contents of agreement
(e) Preliminary decision
(f) Revision of agreement
(g) Progress reports
(h) Final decision
(i) Report on timesavings methods
(Pub. L. 99–662, title II, § 205, Nov. 17, 1986, 100 Stat. 4101.)
§ 2234. Nonapplicability to Saint Lawrence Seaway
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 administered 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.)
§ 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 CongressSubject to the following conditions, a non-Federal interest may levy port or harbor dues (in the form of tonnage duties or fees) on a vessel 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) PurposesPort 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 exceed those necessary to carry out those purposes:
(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 procurement of equipment and facilities.
(2) Limitation on port or harbor dues for emergency service
(3) General limitations
(A) Port or harbor dues may not be levied under this section in conjunction with a deepening 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 protected 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 consider 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 country, a State, or a political subdivision of a country or State, unless engaged in commercial services;
(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 duesPort 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 formulating port and harbor dues, the non-Federal interest shall consider—
(A) the direct and indirect cost of construction, operations, and maintenance, and providing the facilities and services under paragraph (1) of this subsection;
(B) the value of those facilities and services 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 number of an official to whom comments on and requests for further information on the proposal 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 interested party may present a statement; however, the non-Federal interest may not set a hearing date earlier than 45 days after the date of publication of the notice in the Federal Register required by subparagraph (B) of this paragraph or set a deadline for receipt of comments earlier than 60 days after the date of publication; and
(iv) a written statement signed by an appropriate official that the non-Federal interest 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 transmit the material required by clauses (i) through (iii) of subparagraph (A) of this paragraph 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 interestA 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 Commission, which the Commission shall make available for public inspection;
(B) provide to the Comptroller General of the United States on request of the Comptroller General any records or other evidence that the Comptroller General considers to be necessary and appropriate to enable the Comptroller General to carry out the audit required under subsection (b) 1
1 See References in Text note below.
of this section;(C) designate an officer or authorized representative, 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, consignors, and terminal operators, and such other documents as the non-Federal interest may by law, regulation, or ordinance require for the imposition, computation, and collection of port or harbor dues; and
(D) consent expressly to the exclusive exercise of Federal jurisdiction under subsection (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 interest 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 enforcement of port or harbor dues by a non-Federal interest under this section.
(2) Any person who suffers legal wrong or is adversely affected or aggrieved by the imposition 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 restrain an action by that non-Federal interest violating the conditions of consent in subsection (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
2 So in original. No par. (2) has been enacted.
Delivery of certificate and manifest(A) Upon arrival of vessel
(B) Before departure of vessel
(d) EnforcementAt 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 section 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 comply with the provisions of this section including any non-Federal law, regulation or ordinance 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, consignor, 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
(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.)
§ 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 information 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 fundThere 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 maintained by the Great Lakes St. Lawrence Seaway Development Corporation for such fiscal year; and
(2) up to 100 percent of the eligible operations and maintenance costs assigned to commercial navigation of all harbors and inland harbors within the United States.
(b) General fund
(c) Operation and maintenance of harbor projects
(1) In general
(2) Criteria
(A) In generalIn determining an equitable allocation of funds under paragraph (1), the Secretary shall—
(i) consider the information obtained in the assessment conducted under subsection (e);
(ii) consider the national and regional significance of harbor operations and maintenance; and
(iii) as appropriate, consider national security and military readiness needs.
(B) Limitation
(3) Emerging harbor projects
(A) Allocation
(B) Additional uses at emerging harbors
(i) Uses
(ii) Eligible emerging harborsThe Secretary may use funds as authorized under clause (i) at an emerging harbor that—(I) supports commercial activities, including commercial fishing operations, commercial fish processing operations, recreational and sport fishing, and commercial boat yards; or(II) supports activities of the Secretary of the department in which the Coast Guard is operating.
(iii) Cost-sharing requirements
(4) Management of Great Lakes Navigation System
(d) Prioritization
(1) Priority
(A) In general
(B) Additional considerationsFor each fiscal year, of the priority funds available, the Secretary shall use—
(i) not less than 5 percent of such funds for underserved harbor projects; and
(ii) not less than 10 percent of such funds for projects that are located within the Great Lakes Navigation System.
(C) Underserved harborsIn determining which underserved harbor projects shall receive funds under this paragraph, the Secretary shall consider—
(i) the total quantity of commerce supported by the water body on which the project is located; and
(ii) the minimum width and depth that—(I) would be necessary at the underserved harbor project to provide sufficient clearance for fully loaded commercial vessels using the underserved harbor project to maneuver safely; and(II) does not exceed the constructed width and depth of the authorized navigation project.
(2) Expanded uses
(A) Definition of eligible harbor or inland harbor defined
(B) Use of expanded uses funds
(i) Fiscal years 2015 through 2024
(ii) Subsequent fiscal years
(C) PrioritizationIn allocating funds under this paragraph, the Secretary shall give priority to projects at eligible harbors or inland harbors for which the difference, calculated in dollars, is greatest between—
(i) the total amount of funding made available for projects at that eligible harbor or inland harbor from the Harbor Maintenance Trust Fund in the immediately preceding 3 fiscal years; and
(ii) the total amount of harbor maintenance taxes collected at that harbor or inland harbor in the immediately preceding 3 fiscal years.
(3) Remaining funds
(A) In general
(B) CriteriaIn determining an equitable allocation of funds under subparagraph (A), the Secretary shall—
(i) use the criteria specified in subsection (c)(2)(A); and
(ii) make amounts available in accordance with the requirements of paragraph (1)(A).
(4) Emergency expendituresNothing in this subsection prohibits the Secretary from making an expenditure to pay for the operation and maintenance costs of a specific harbor or inland harbor, including the transfer of funding from the operation and maintenance of a separate project, if—
(A) the Secretary determines that the action is necessary to address the navigation needs of a harbor or inland harbor where safe navigation has been severely restricted due to an unforeseen event; and
(B) the Secretary provides within 90 days of the action notice and information on the need for the action to the Committee on Environment and Public Works and the Committee on Appropriations of the Senate and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives.
(e) Assessment of harbors and inland harbors
(1) In general
(2) Assessment of harbor needs and activities
(A) Total operation and maintenance needs of harborsIn carrying out paragraph (1), the Secretary shall identify—
(i) the total future costs required to achieve and maintain the constructed width and depth for the harbors and inland harbors referred to in subsection (a)(2); and
(ii) the total expected costs for uses described in subsection (c)(3)(B) and expanded uses at eligible harbors or inland harbors referred to in subsection (d)(2).
(B) Uses of harbors and inland harborsIn carrying out paragraph (1), the Secretary shall identify current uses (and, to the extent practicable, assess the national, regional, and local benefits of such uses) of harbors and inland harbors referred to in subsection (a)(2), including the use of those harbors for—
(i) commercial navigation, including the movement of goods;
(ii) domestic trade;
(iii) international trade;
(iv) commercial fishing;
(v) subsistence, including use by Indian tribes (as defined in section 5304 of title 25) for subsistence and ceremonial purposes;
(vi) use as a harbor of refuge;
(vii) transportation of persons;
(viii) purposes relating to domestic energy production, including the fabrication, servicing, or supply of domestic offshore energy production facilities;
(ix) activities of the Secretary of the department in which the Coast Guard is operating;
(x) activities of the Secretary of the Navy;
(xi) public health and safety related equipment for responding to coastal and inland emergencies;
(xii) recreation purposes; and
(xiii) other authorized purposes.
(C) Opportunities for beneficial use of dredged materials
(3) Report to Congress
(A) In generalFor fiscal year 2016, and biennially thereafter, in conjunction with the President’s annual budget submission to Congress under section 1105(a) of title 31, the Secretary shall submit to the Committee on Environment and Public Works and the Committee on Appropriations of the Senate and the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives a report that, with respect to harbors and inland harbors referred to in subsection (a)(2)—
(i) identifies the operation and maintenance costs associated with the harbors and inland harbors, including those costs required to achieve and maintain the constructed width and depth for the harbors and inland harbors and the costs for expanded uses at eligible harbors and inland harbors, on a project-by-project basis;
(ii) identifies the amount of funding requested in the President’s budget for the operation and maintenance costs associated with the harbors and inland harbors, on a project-by-project basis;
(iii) identifies the unmet operation and maintenance needs associated with the harbors and inland harbors, on a project-by-project basis; and
(iv) identifies the harbors and inland harbors for which the President will allocate funding over the subsequent 5 fiscal years for operation and maintenance activities, on a project-by-project basis, including the amounts to be allocated for such purposes.
(B) Additional requirement
(C) Public availability
(f) DefinitionsIn this section:
(1) Constructed width and depth
(2) Emerging harbor
(3) Emerging harbor project
(4) Expanded usesThe term “expanded uses” means the following activities:
(A) The maintenance dredging of a berth in a harbor that is accessible to a Federal navigation project and that benefits commercial navigation at the harbor.
(B) The maintenance dredging and disposal of legacy-contaminated sediment, and sediment unsuitable for open water disposal, if—
(i) such dredging and disposal benefits commercial navigation at the harbor; and
(ii) such sediment is located in and affects the maintenance of a Federal navigation project or is located in a berth that is accessible to a Federal navigation project.
(C) An in-water improvement, if the improvement—
(i) is for the seismic reinforcement of a wharf or other berthing structure, or the repair or replacement of a deteriorating wharf or other berthing structure, at a port facility;
(ii) benefits commercial navigation at the harbor; and
(iii) is located in, or adjacent to, a berth that is accessible to a Federal navigation project.
(D) An activity to maintain slope stability at a berth in a harbor that is accessible to a Federal navigation project if such activity benefits commercial navigation at the harbor.
(5) Great Lakes Navigation SystemThe term “Great Lakes Navigation System” includes—
(A)
(i) Lake Superior;
(ii) Lake Huron;
(iii) Lake Michigan;
(iv) Lake Erie; and
(v) Lake Ontario;
(B) all connecting waters between the lakes referred to in subparagraph (A) used for commercial navigation;
(C) any navigation features in the lakes referred to in subparagraph (A) or waters described in subparagraph (B) that are a Federal operation or maintenance responsibility; and
(D) areas of the Saint Lawrence River that are operated or maintained by the Federal Government for commercial navigation.
(6) Harbor maintenance tax
(7) Moderate-use harbor projectThe term “moderate-use harbor project” means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2) that transits annually—
(A) more than 1,000,000 tons of cargo; but
(B) less than 10,000,000 tons of cargo.
(8) Priority fundsThe term “priority funds” means the difference between—
(A) the total funds that are made available under this section to pay the costs described in subsection (a)(2) for a fiscal year; and
(B) the total funds made available under this section to pay the costs described in subsection (a)(2) in fiscal year 2012.
(9) Underserved harbor project
(A) In generalThe term “underserved harbor project” means a project that is assigned to a harbor or inland harbor referred to in subsection (a)(2)—
(i) that is a moderate-use harbor project or an emerging harbor project;
(ii) that has been maintained at less than the constructed width and depth of the project during each of the preceding 6 fiscal years; and
(iii) for which State and local investments in infrastructure have been made at those projects during the preceding 6 fiscal years.
(B) Administration
(Pub. L. 99–662, title II, § 210, Nov. 17, 1986, 100 Stat. 4106; Pub. L. 101–640, title III, § 316, Nov. 28, 1990, 104 Stat. 4641; Pub. L. 113–121, title II, § 2102(a), June 10, 2014, 128 Stat. 1273; Pub. L. 114–322, title I, §§ 1103, 1107, 1114, Dec. 16, 2016, 130 Stat. 1633, 1634, 1638; Pub. L. 115–270, title I, § 1216, Oct. 23, 2018, 132 Stat. 3810; Pub. L. 116–260, div. AA, title I, § 102(b), title V, § 512(c)(5)(B), Dec. 27, 2020, 134 Stat. 2619, 2756.)
§ 2238a. Estimate of harbor maintenance needs
For fiscal year 2014 and each fiscal year thereafter, the President’s budget request submitted pursuant to section 1105 of title 31, United States Code, shall include—
(1) an estimate of the nationwide average availability, expressed as a percentage, of the authorized depth and authorized width of all navigation channels authorized to be maintained using appropriations from the Harbor Maintenance Trust Fund that would result from harbor maintenance activities to be funded by the budget request; and
(2) an estimate of the average annual amount of appropriations from the Harbor Maintenance Trust Fund that would be required to increase that average availability to 95 percent over a 3-year period.
(Pub. L. 112–141, div. A, title I, § 1537, July 6, 2012, 126 Stat. 585.)
§ 2238b. Funding for harbor maintenance programs
(a) Definitions
In this section:
(1) Total amount of harbor maintenance taxes received
(2) Total budget resources
(b) Target appropriations
(1) In general
Except as provided in subsection (c), the target total budget resources made available to the Secretary from the Harbor Maintenance Trust Fund for a fiscal year shall be not less than the following:
(A) For fiscal year 2015, 67 percent of the total amount of harbor maintenance taxes received in fiscal year 2014.
(B) For fiscal year 2016, 69 percent of the total amount of harbor maintenance taxes received in fiscal year 2015.
(C) For fiscal year 2017, 71 percent of the total amount of harbor maintenance taxes received in fiscal year 2016.
(D) For fiscal year 2018, 74 percent of the total amount of harbor maintenance taxes received in fiscal year 2017.
(E) For fiscal year 2019, 77 percent of the total amount of harbor maintenance taxes received in fiscal year 2018.
(F) For fiscal year 2020, 80 percent of the total amount of harbor maintenance taxes received in fiscal year 2019.
(G) For fiscal year 2021, 83 percent of the total amount of harbor maintenance taxes received in fiscal year 2020.
(H) For fiscal year 2022, 87 percent of the total amount of harbor maintenance taxes received in fiscal year 2021.
(I) For fiscal year 2023, 91 percent of the total amount of harbor maintenance taxes received in fiscal year 2022.
(J) For fiscal year 2024, 95 percent of the total amount of harbor maintenance taxes received in fiscal year 2023.
(K) For fiscal year 2025, and each fiscal year thereafter, 100 percent of the total amount of harbor maintenance taxes received in the previous fiscal year.
(2) Use of amounts
(c) Exception
If the target total budget resources for a fiscal year described in subparagraphs (A) through (J) of subsection (b)(1) is lower than the target total budget resources for the previous fiscal year, the target total budget resources shall be adjusted to be equal to the lesser of—
(1) 103 percent of the total budget resources appropriated for the previous fiscal year; or
(2) 100 percent of the total amount of harbor maintenance taxes received in the previous fiscal year.
(d) Impact on other funds
(1) Sense of Congress
(2) Application
(Pub. L. 113–121, title II, § 2101, June 10, 2014, 128 Stat. 1272; Pub. L. 114–322, title I, § 1108, Dec. 16, 2016, 130 Stat. 1634.)
§ 2238b–1. Budgetary treatment expansion and adjustment for the Harbor Maintenance Trust FundAny discretionary appropriation for the Corps of Engineers—
(1) derived from the Harbor Maintenance Trust Fund, in this fiscal year and thereafter, not to exceed the sum of—
(A) the total amount deposited in the Harbor Maintenance Trust Fund in the fiscal year that is two years prior to the fiscal year for which the appropriation is being made; and
(B)
(i) $500,000,000 for fiscal year 2021;
(ii) $600,000,000 for fiscal year 2022;
(iii) $700,000,000 for fiscal year 2023;
(iv) $800,000,000 for fiscal year 2024;
(v) $900,000,000 for fiscal year 2025;
(vi) $1,000,000,000 for fiscal year 2026;
(vii) $1,200,000,000 for fiscal year 2027;
(viii) $1,300,000,000 for fiscal year 2028;
(ix) $1,400,000,000 for fiscal year 2029; and
(x) $1,500,000,000 for fiscal year 2030 and thereafter; and
(2) for the Operation and Maintenance account of the Corps of Engineers which is designated in statute as being to carry out subsection (c) of section 2238c of this title, not to exceed—
(A) $50,000,000 for fiscal year 2021;
(B) $50,000,000 for fiscal year 2022;
(C) $56,000,000 for fiscal year 2023;
(D) $58,000,000 for fiscal year 2024;
(E) $60,000,000 for fiscal year 2025;
(F) $62,000,000 for fiscal year 2026;
(G) $64,000,000 for fiscal year 2027;
(H) $66,000,000 for fiscal year 2028;
(I) $68,000,000 for fiscal year 2029; and
(J) $70,000,000 for fiscal year 2030;
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 Control Act of 1974 or the Balanced Budget and Emergency Deficit Control Act of 1985.
(Pub. L. 116–136, div. B, title IV, § 14003, Mar. 27, 2020, 134 Stat. 526; Pub. L. 116–260, div. AA, title I, § 101, Dec. 27, 2020, 134 Stat. 2618.)
§ 2238c. Additional measures at donor ports and energy transfer ports
(a) DefinitionsIn this section:
(1) Cargo container
(2) Discretionary cargo
(3) Donor port
(A) In generalThe 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
(4) Energy commodityThe term “energy commodity” includes—
(A) petroleum products;
(B) natural gas;
(C) coal;
(D) wind and solar energy components; and
(E) biofuels.
(5) Energy transfer portThe 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
(7) Harbor maintenance tax
(8) Harbor maintenance trust fund
(9) Medium-sized donor portThe 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
(2) LimitationsAmounts 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 fundsAmounts 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 generalIf 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
(e) Authorization of appropriations
(1) In generalThere 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 portsFor 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
(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.)
§ 2238d. Maintenance of harbors of refuge
The Secretary is authorized to maintain federally authorized harbors of refuge to restore and maintain the authorized dimensions of the harbors.
(Pub. L. 114–322, title I, § 1109, Dec. 16, 2016, 130 Stat. 1634.)
§ 2238e. Additional projects for underserved community harbors
(a) In general
(b) Beneficial use
(1) Justification
(2) Cost share
(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 environment to be derived from the creation of wetland and control of shoreline erosion; and
(3) other social effects of the project, including protection against loss of life and contributions to local or regional cultural heritage.
(d) Clarification
(e) Federal participation limit
(f) Statutory construction
(g) Definitions
In this section:
(1) Project
(2) Underserved community harbor
The term “underserved community harbor” means an emerging harbor (as defined in section 2238(f) of this title) for which—
(A) no Federal funds have been obligated for maintenance dredging in the current fiscal year or in any of the 4 preceding fiscal years; and
(B) State and local investments in infrastructure have been made during any of the 4 preceding fiscal years.
(h) Authorization of appropriations
(1) In general
(2) Special rule
(Pub. L. 117–263, div. H, title LXXXI, § 8132, Dec. 23, 2022, 136 Stat. 3719.)
§ 2239. Repealed. Pub. L. 101–640, title IV, § 412(f), Nov. 28, 1990, 104 Stat. 4650
§ 2240. Emergency response services
(a) Grants
(b) Authorization of appropriations
(Pub. L. 99–662, title II, § 212, Nov. 17, 1986, 100 Stat. 4107.)
§ 2241. Definitions
For purposes of this subchapter—
(1) Deep-draft harbor
(2) Eligible operations and maintenance
(A) Except as provided in subparagraph (B), the term “eligible operations and maintenance” means all Federal operations, maintenance, repair, and rehabilitation, including (i) maintenance dredging reasonably necessary to maintain the width and nominal depth of any harbor or inland harbor; (ii) the construction of dredged material disposal facilities that are necessary for the operation and maintenance of any harbor or inland harbor; (iii) dredging and disposing of contaminated sediments that are in or that affect the maintenance of Federal navigation channels; (iv) mitigating for impacts resulting from Federal navigation operation and maintenance activities; and (v) operating and maintaining dredged material disposal facilities.
(B) As applied to the Saint Lawrence Seaway, the term “eligible operations and maintenance” means all operations, maintenance, repair, and rehabilitation, including maintenance dredging reasonably necessary to keep such Seaway or navigation improvements operated or maintained by the Great Lakes St. Lawrence Seaway Development Corporation in operation and reasonable state of repair.
(C) The term “eligible operations and maintenance” does not include providing any lands, easements, or rights-of-way, or performing relocations required for project operations and maintenance.
(3) General cargo harbor
(4) Harbor
The term “harbor” means any channel or harbor, or element thereof, in the United States, capable of being utilized in the transportation of commercial cargo in domestic or foreign waterborne commerce by commercial vessels. The term does not include—
(A) an inland harbor;
(B) the Saint Lawrence Seaway;
(C) local access or berthing channels;
(D) channels or harbors constructed or maintained by nonpublic interests; and
(E) any portion of the Columbia River other than the channels on the downstream side of Bonneville lock and dam.
(5) Inland harbor
The term “inland harbor” means a navigation project which is used principally for the accommodation of commercial vessels and the receipt and shipment of waterborne cargoes on inland waters. The term does not include—
(A) projects on the Great Lakes;
(B) projects that are subject to tidal influence;
(C) projects with authorized depths of greater than 20 feet;
(D) local access or berthing channels; and
(E) projects constructed or maintained by nonpublic interests.
(6) Nominal depth
(7) Non-Federal interest
(8) United States
(Pub. L. 99–662, title II, § 214, Nov. 17, 1986, 100 Stat. 4108; Pub. L. 104–303, title II, § 201(e), Oct. 12, 1996, 110 Stat. 3672; Pub. L. 116–260, div. AA, title V, § 512(c)(5)(C), Dec. 27, 2020, 134 Stat. 2756.)
§ 2242. Remote and subsistence harbors
(a) In general
In conducting a study of harbor and navigation improvements, the Secretary may recommend a project without the need to demonstrate that the project is justified solely by national economic development benefits if the Secretary determines that—
(1)
(A) the community to be served by the project is at least 70 miles from the nearest surface accessible commercial port and has no direct rail or highway link to another community served by a surface accessible port or harbor; or
(B) the project would be located in the State of Hawaii or Alaska, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, or American Samoa;
(2) the harbor is economically critical such that over 80 percent of the goods transported through the harbor would be consumed within the region served by the harbor and navigation improvement, as determined by the Secretary, including consideration of information provided by the non-Federal interest; and
(3) the long-term viability of the community in which the project is located, or the long-term viability of a community that is located in the region that is served by the project and that will rely on the project, would be threatened without the harbor and navigation improvement.
(b) Justification
In considering whether to recommend a project under subsection (a), the Secretary shall consider the benefits of the project to—
(1) public health and safety of the local community and communities that are located in the region to be served by the project and that will rely on the project, including access to facilities designed to protect public health and safety;
(2) access to natural resources for subsistence purposes;
(3) local and regional economic opportunities;
(4) welfare of the regional population to be served by the project; and
(5) social and cultural value to the local community and communities that are located in the region to be served by the project and that will rely on the project.
(c) Prioritization
(d) Disposition
(1) In general
(2) Non-Federal interests
(e) Annual report
(Pub. L. 110–114, title II, § 2006, Nov. 8, 2007, 121 Stat. 1073; Pub. L. 113–121, title II, § 2104, June 10, 2014, 128 Stat. 1279; Pub. L. 114–322, title I, § 1105, Dec. 16, 2016, 130 Stat. 1633.)
§ 2243. Arctic deep draft port development partnerships
(a) In general
(b) Acceptance of funds
(c) Limitation
(d) Prioritization
(e) Consideration of national security interests
In carrying out a study of the feasibility of an Arctic deep draft port, the Secretary—
(1) shall consult with the Secretary of the department in which the Coast Guard is operating to identify benefits in carrying out the missions specified in section 468 of title 6 associated with an Arctic deep draft port;
(2) shall consult with the Secretary of Defense to identify national security benefits associated with an Arctic deep draft port; and
(3) may consider such benefits in determining whether an Arctic deep draft port is feasible.
(Pub. L. 113–121, title II, § 2105, June 10, 2014, 128 Stat. 1279; Pub. L. 114–322, title I, § 1202(c), Dec. 16, 2016, 130 Stat. 1684.)