33 U.S.C. § 2238c (NAVIGATION AND NAVIGABLE WATERS)
§ 2238c. Additional measures at donor ports and energy transfer ports
(a) Definitions
In this section:
(1) Cargo container
The term “cargo container” means a cargo container that is 1 Twenty-foot Equivalent Unit.
(2) Discretionary cargo
The term “discretionary cargo” means maritime cargo for which the United States port of unlading is different than the United States port of entry.
(3) Donor port
(A) In general
The term “donor port” means a port—
(i) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);
(ii) at which the total amount of harbor maintenance taxes collected comprise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund established under section 9505 of title 26;
(iii) that received less than 25 percent of the total amount of harbor maintenance taxes collected at that port in the previous 5 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 in fiscal year 2012.
(B) Calculation
For the purpose of calculating the percentage described in subparagraph (A)(iii), payments described under subsection (c)(1) shall not be included.
(4) Energy commodity
The term “energy commodity” includes—
(A) petroleum products;
(B) natural gas;
(C) coal;
(D) wind and solar energy components; and
(E) biofuels.
(5) Energy transfer port
The term “energy transfer port” means a port—
(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or any successor regulation); and
(B)
(i) at which energy commodities comprised greater than 25 percent of all commercial activity by tonnage in fiscal year 2012; and
(ii) through which more than 40,000,000 tons of cargo were transported in fiscal year 2012.
(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) Medium-sized donor port
The term “medium-sized donor port” means a port—
(A) that is subject to the harbor maintenance fee under section 24.24 of title 19, Code of Federal Regulations (or a successor regulation);
(B) at which the total amount of harbor maintenance taxes collected comprise annually more than $5,000,000 but less than $15,000,000 of the total funding of the Harbor Maintenance Trust Fund established under section 9505 of title 26;
(C) that received less than 25 percent of the total amount of harbor maintenance taxes collected at that port in the previous 5 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 in fiscal year 2012.
(b) Authority
(1) In general
Subject to the availability of appropriations, the Secretary may provide to donor ports, medium-sized donor ports, and energy transfer ports amounts in accordance with this section.
(2) Limitations
Amounts provided under this section—
(A) for energy transfer ports shall be divided equally among all States with an energy transfer port;
(B) shall be made available to a port as either a donor port, medium-sized donor port, or an energy transfer port, and no port may receive amounts from more than 1 designation; and
(C) for donor ports and medium-sized donor ports—
(i) 50 percent of the funds shall be equally divided between the eligible donor ports as authorized by this section; and
(ii) 50 percent of the funds shall be divided between the eligible donor ports and eligible medium-sized donor ports based on the percentage of the total harbor maintenance tax revenues generated at each eligible donor port and medium-sized donor port.
(c) Use of funds
Amounts provided under this section may be used by a donor port, a medium-sized donor port, or an energy transfer port—
(1) to provide payments to importers entering cargo through that port, as calculated by the Secretary according to the value of discretionary cargo;
(2) for expanded uses; or
(3) for environmental remediation related to dredging berths and Federal navigation channels.
(d) Administration of payments
(1) In general
If a donor port, a medium-sized donor port, or an energy transfer port elects to provide payments to importers under subsection (c), the Secretary shall transfer to the Commissioner of U.S. Customs and Border Protection an amount equal to those payments that would otherwise be provided to the port under this section to provide the payments to the importers of the discretionary cargo that is—
(A) shipped through the port; and
(B) most at risk of diversion to seaports outside of the United States.
(2) Requirement
The Secretary, in consultation with a port electing to provide payments under subsection (c), shall determine the top importers at the port, as ranked by the value of discretionary cargo, and payments shall be limited to those top importers.
(e) Report to Congress
(1) In general
Not later than 18 months after June 10, 2014, the Secretary shall assess the impact of the authority provided by this section and submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report on the results of that assessment, including any recommendations for amending or reauthorizing the authority.
(2) Factors
In carrying out the assessment under paragraph (1), the Secretary shall assess—
(A) the impact of the amounts provided and used under this section on those ports that received funds under this section; and
(B) any impact on domestic harbors and ports that did not receive funds under this section.
(f) Authorization of appropriations
(1) In general
There is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2015 through 2022.
(2) Division between donor ports, medium-sized donor ports, and energy transfer ports
For each fiscal year, amounts made available to carry out this section shall be provided in equal amounts to—
(A) donor ports and medium-sized donor ports; and
(B) energy transfer ports.
(g) 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.)
heading: Amendment of Section
text: Pub. L. 116–260, div. AA, title I, § 104(b), Dec. 27, 2020, 134 Stat. 2621, provided that, effective Oct. 1, 2022, this section is amended as follows:
(1) Subsection (a) is amended—
(A) in paragraph (3)(A)—
(i) by amending clause (ii) to read as follows:
“(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;”;
(ii) in clause (iii)—
(I) by inserting “(including the estimated taxes related to domestic cargo and cruise passengers)” after “taxes collected”; and
(II) by striking “5 fiscal years” and inserting “3 fiscal years”; and
(iii) in clause (iv), by striking “in fiscal year 2012” and inserting “on an average annual basis for the previous 3 fiscal years”;
(B) in paragraph (5)(B), by striking “in fiscal year 2012” each place it appears and inserting “on an average annual basis for the previous 3 fiscal years”;
(C) by redesignating paragraph (8) as paragraph (9) and inserting after paragraph (7) the following:
“(8) Harbor maintenance trust fund
“The term ‘Harbor Maintenance Trust Fund’ means the Harbor Maintenance Trust Fund established by section 9505 of title 26.”;
(D) in paragraph (9), as so redesignated—
(i) by amending subparagraph (B) to read as follows:
“(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;”;
(ii) in subparagraph (C)—
(I) by inserting “(including the estimated taxes related to domestic cargo and cruise passengers)” after “taxes collected”; and
(II) by striking “5 fiscal years” and inserting “3 fiscal years”; and
(iii) in subparagraph (D), by striking “in fiscal year 2012” and inserting “on an average annual basis for the previous 3 fiscal years”.
(2)(A) By striking subsection (e) and redesignating subsections (f) and (g) as subsections (e) and (f), respectively; and
(B) in subsection (e), as so redesignated, by amending paragraph (1) to read as follows:
“(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.”
See 2020 Amendment notes below.
heading: Editorial Notes
heading: Codification
text: 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.
heading: Amendments
text: 2020—Subsec. (a)(3)(A)(ii). Pub. L. 116–260, § 104(b)(1)(A)(i), amended cl. (ii) generally. Prior to amendment, text read as follows: “at which the total amount of harbor maintenance taxes collected comprise not less than $15,000,000 annually of the total funding of the Harbor Maintenance Trust Fund established under section 9505 of title 26;”.
Subsec. (a)(3)(A)(iii). Pub. L. 116–260, § 104(b)(1)(A)(ii), inserted “(including the estimated taxes related to domestic cargo and cruise passengers)” after “taxes collected” and substituted “3 fiscal years” for “5 fiscal years”.
Subsec. (a)(3)(A)(iv). Pub. L. 116–260, § 104(b)(1)(A)(iii), substituted “on an average annual basis for the previous 3 fiscal years” for “in fiscal year 2012”.
Subsec. (a)(5)(B). Pub. L. 116–260, § 104(b)(1)(B), substituted “on an average annual basis for the previous 3 fiscal years” for “in fiscal year 2012” in two places.
Subsec. (a)(8), (9). Pub. L. 116–260, § 104(b)(1)(C), added par. (8) and redesignated former par. (8) as (9).
Subsec. (a)(9)(B). Pub. L. 116–260, § 104(b)(1)(D)(i), amended subpar. (B) generally. Prior to amendment, text read as follows: “at which the total amount of harbor maintenance taxes collected comprise annually more than $5,000,000 but less than $15,000,000 of the total funding of the Harbor Maintenance Trust Fund established under section 9505 of title 26;”.
Subsec. (a)(9)(C). Pub. L. 116–260, § 104(b)(1)(D)(ii), inserted “(including the estimated taxes related to domestic cargo and cruise passengers)” after “taxes collected” and substituted “3 fiscal years” for “5 fiscal years”.
Subsec. (a)(9)(D). Pub. L. 116–260, § 104(b)(1)(D)(iii), substituted “on an average annual basis for the previous 3 fiscal years” for “in fiscal year 2012”.
Subsec. (e). Pub. L. 116–260, § 104(b)(2)(A), redesignated subsec. (f) as (e) and struck out former subsec. (e) which related to report to Congress.
Subsec. (e)(1). Pub. L. 116–260, § 104(b)(2)(B), amended par. (1) generally. Prior to amendment, text read as follows: “There is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2015 through 2020.”
Subsec. (f). Pub. L. 116–260, § 104(b)(2)(A), redesignated subsec. (g) as (f). Former subsec. (f) redesignated (e).
Subsec. (f)(1). Pub. L. 116–260, § 104(a)(1), substituted “2022” for “2020”.
Subsec. (f)(3). Pub. L. 116–260, § 104(a)(2), struck out par. (3). Prior to amendment, text read as follows: “If the target total budget resources under subparagraphs (A) through (D) of section 2238b(b)(1) of this title are met for each of fiscal years 2016 through 2020, there is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2021 through 2025.”
Subsec. (g). Pub. L. 116–260, § 104(b)(2)(A), redesignated subsec. (g) as (f).
2016—Subsec. (a)(2). Pub. L. 114–322, § 1110(1)(B), added par. (2). Former par. (2) redesignated (3).
Subsec. (a)(3). Pub. L. 114–322, § 1110(1)(C), designated existing provisions as subpar. (A) and inserted heading, redesignated former subpars. (A) to (D) as cls. (i) to (iv), respectively, of subpar. (A), and added subpar. (B).
Pub. L. 114–322, § 1110(1)(A), redesignated par. (2) as (3). Former par. (3) redesignated (4).
Subsec. (a)(4). Pub. L. 114–322, § 1110(1)(A), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (a)(5). Pub. L. 114–322, § 1110(1)(A), redesignated par. (4) as (5). Former par. (5) redesignated (6).
Subsec. (a)(5)(A). Pub. L. 114–322, § 1110(1)(D), substituted “Code of Federal Regulations” for “Code of Federal Regulation”.
Subsec. (a)(6), (7). Pub. L. 114–322, § 1110(1)(A), redesignated pars. (5) and (6) as (6) and (7), respectively.
Subsec. (a)(8). Pub. L. 114–322, § 1110(1)(E), added par. (8).
Subsec. (b)(1). Pub. L. 114–322, § 1110(2)(A), substituted “donor ports, medium-sized donor ports,” for “donor ports”.
Subsec. (b)(2)(B), (C). Pub. L. 114–322, § 1110(2)(B), added subpars. (B) and (C) and struck out former subpar. (B) which read as follows: “shall be made available to a port as either a donor port or an energy transfer port and no port may receive amounts as both a donor port and an energy transfer port.”
Subsec. (c). Pub. L. 114–322, § 1110(3)(A), substituted “donor port, a medium-sized donor port,” for “donor port” in introductory provisions.
Subsec. (c)(1). Pub. L. 114–322, § 1110(3)(B), struck out “or shippers transporting cargo” after “entering cargo” and substituted “the Secretary” for “U.S. Customs and Border Protection” and “value of discretionary cargo” for “amount of harbor maintenance taxes collected”.
Subsec. (d). Pub. L. 114–322, § 1110(4), added subsec. (d) and struck out former subsec. (d). Prior to amendment, text read as follows: “If a donor port or an energy transfer port elects to provide payments to importers or shippers under subsection (c), the Secretary shall transfer the amount that would otherwise be provided to the port under this section that is equal to those payments to the Commissioner of U.S. Customs and Border Protection to provide the payments to the importers or shippers.”
Subsec. (f)(1). Pub. L. 114–322, § 1110(5)(A), substituted “2020” for “2018”.
Subsec. (f)(2). Pub. L. 114–322, § 1110(5)(B), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: “For each fiscal year, amounts made available to carry out this section shall be provided in equal amounts to donor ports and energy transfer ports.”
Subsec. (f)(3). Pub. L. 114–322, § 1110(5)(C), substituted “2016 through 2020” for “2015 through 2018” and “2021 through 2025” for “2019 through 2022”.
Subsec. (g). Pub. L. 114–322, § 1110(6), added subsec. (g).
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2020 Amendment
text: 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.”
heading: “Secretary” Defined
text: Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.