§ 2236. — Port or harbor dues.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC2236]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 36--WATER RESOURCES DEVELOPMENT
SUBCHAPTER II--HARBOR DEVELOPMENT
Sec. 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 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) 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 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
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
levied 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 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 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 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 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
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\ of this section;
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\1\ See References in Text note below.
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(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\ Delivery of certificate and manifest
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\2\ So in original. No par. (2) has been enacted.
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(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 vessel or, if the vessel is in ballast, a declaration to
that effect.
(B) Before departure of vessel
The shipper, consignor, or terminal operator having custody
of any cargo to be loaded 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
appropriate authorized representative appointed under subsection
(a)(6)(C) of this section 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 section 91 of title 46,
Appendix 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
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 district court of the United States for
the district in which the vessel or cargo is found.
(Pub. L. 99-662, title II, Sec. 208, Nov. 17, 1986, 100 Stat. 4102; Pub.
L. 104-66, title I, Sec. 1021(g), Dec. 21, 1995, 109 Stat. 713.)
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 subsec. (b).
Subsection (c) of this section, referred to in subsec. (a)(6)(D),
which related to jurisdiction, was redesignated 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, as amended, which is classified
generally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties.
For complete classification of this Act to the Code, see section 1654 of
Title 19 and Tables.
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 harbor dues under this section
to determine if the conditions of subsection (a) of this section are
being complied 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 Comptroller General
considers appropriate regarding the compliance of those non-Federal
interests with the requirements of this section.''
Section Referred to in Other Sections
This section is referred to in section 5 of this title.
