Sabine Neches Navigation District User Fee Notice, 7369-7372 [2021-01828]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Army, Corps of Engineers

[Federal Register Volume 86, Number 17 (Thursday, January 28, 2021)]
[Notices]
[Pages 7369-7372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01828]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Sabine Neches Navigation District User Fee Notice

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Notice.

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SUMMARY: The Water Resources Reform and Development Act (WRRDA) of 2014 
authorizes a non-federal interest to levy port or harbor dues in the 
form of tonnage duties or fees in conjunction with a harbor navigation 
project whose usable increment of the project is complete to finance 
the cost, construction or maintenance of the project. The Sabine-Neches 
Navigation District (SNND) is a political subdivision of the State of 
Texas and the non-federal sponsor of the Sabine-Neches Waterway Channel 
Improvement Project (SNWW CIP). The SNND anticipates completion of the 
first usable increment of the SNWW CIP in early 2021. Upon completion 
of the first usable increment, SNND intends to levy port or harbor dues 
pursuant to 33 U.S.C. 2236. Notification in the Federal Register prior 
to an initial levy of port or harbor dues is required by the statute.

DATES: A public hearing on the proposed user fee ordinance will be held 
at 3:30 p.m. on March 15, 2021, in the manner and location specified in 
the ADDRESSES section of this Notice.
    The public comment period will end upon the close of business at 5 
p.m. (CST), March 29, 2021. Written comments must be received by the 
District on or before that date to be considered before the user fee 
ordinance becomes effective.

ADDRESSES: The public hearing will be held at 8180 Anchor Drive, Port 
Arthur, TX 77642. Pursuant to orders issued by the Governor of Texas 
related to combatting the spread of Covid-19, arrangements will be made 
for attendance at the public meeting by electronic means. Details 
regarding participation by electronic means will be posted on SNND's 
website: www.navigationdistrict.org.
    Public comments concerning the proposed users' fee ordinance should 
be directed in writing to Mr. Randall Reese, Executive Director and CEO 
Sabine-Neches Navigation District, 8180 Anchor Drive, Port Arthur, TX 
77642, with a copy to Ms. Franchelle Nealy, Galveston District, U.S. 
Army Corps of Engineers, 2000 Fort Point Road, Galveston, TX 77550.

FOR FURTHER INFORMATION CONTACT: All comments and requests for further 
information on the proposal must be directed in writing to the 
Executive Director and CEO of SNND. His contact information follows: 
Mr. Randall Reese, Executive Director and CEO Sabine-Neches Navigation 
District, 8180 Anchor Drive, Port Arthur, TX 77642; Telephone: 409-729-
4588; email: [email protected]. Alternatively, contact Ms. 
Franchelle Nealy, in writing at the Galveston District, U.S. Army Corps 
of Engineers, ATTN: Ms. Franchelle Nealy, 2000 Fort Point Road, 
Galveston, TX 77550; Telephone: 409-766-3817; and by email at 
[email protected].

SUPPLEMENTARY INFORMATION: The U.S. Army Corps of Engineers (USACE) 
Galveston District published the Final Feasibility Report/Final 
Environmental Impact Statement for SNWW CIP (USACE, 2011) in March 
2011, the Chief of Engineers Report (Chief's Report) was signed in July 
2011, and the Record of Decision was signed in February 2012. The 
Congressional approval of the construction of the SNWW CIP 
(authorization for construction) was provided in Section 7002(1)1 of 
the Water Resources Reform and Development Act (WRRDA) of 2014, Public 
Law 113-121. The SNWW CIP's new start construction was funded in Fiscal 
Year (FY) 2019 by the Army Civil Works Program FY 2019 Work Plan. The 
SNND and the USACE signed the Project Partnership Agreement for SNWW 
CIP on or about July 27, 2019. Additional funding for construction of 
the SNWW CIP was provided in the FY 2020 Work Plan.
    Construction of the first usable increment of SNWW CIP, an 
anchorage basin, has begun. Upon completion of this anchorage basin, 
SNND intends to

[[Page 7370]]

begin to levy port or harbor dues pursuant to 33 U.S.C. 2236. 33 U.S.C. 
2236(a)(5)(A) requires that SNND, as the non-federal sponsor, transmit 
to the Secretary of the Army for public notice the proposed ordinance 
before the initial levy of port or harbor dues. A previous notice was 
published on June 23, 2020 (85 FR 37634) with a draft user fee 
ordinance for public comment on which several comments were received. 
The comments resulted in the SNND modifying the proposed levy of port 
or harbor dues. The revised proposed levy is stated below for public 
comment.

Proposed Ordinance

Sabine Neches Navigtion District User Fee Ordinance. An Ordinance 
Setting Out the Need for and Levying of a User Service Fee on Vessels 
and Owners of Cargo, Placing Responsibility for Providing Required 
Documentation and Providing Penalties

    Whereas the Sabine Neches Navigation District (``Navigation 
District'') is the designated non-federal sponsor (``sponsor'') for the 
Sabine Neches Waterway Channel Improvement Project for the Sabine 
Neches Waterway authorized in the Water Resources Reform and 
Development Act of 2014 (``Project''); and
    Whereas the Texas Legislature implemented Senate Bill 1137 
authorizing the Navigation District to serve as the sponsor for the 
Project and perform all necessary duties as the sponsor to satisfy its 
obligations as the local sponsor; and
    Whereas the Project is projected to generate an additional $57 
billion in gross product and 465,000 US jobs; and
    Whereas the Navigation District will be responsible for funding its 
required cost share of the total Project as set out in the Project 
Partnership Agreement between the United States Army Corps of Engineers 
and the Navigation District, including payment of the Navigation 
District's 40 percent share of the construction cost; and
    Whereas 33 U.S.C. 2236 authorizes a non-federal interest to levy 
port or harbor dues on vessels and the owner of the cargo in the form 
of tonnage duties or fees in conjunction with a port or harbor 
navigation project whose usable increment of the project is complete to 
finance the cost, construction or maintenance of the Project; and
    Whereas the first usable increment of the Project, a new anchorage 
basin, located on the Neches River and referenced in section VI page 16 
of the March 11, 2011, Final Feasibility has been completed and 
benefits all vessels whose design draft exceed 20 feet; and
    Whereas the levy of port or harbor dues authorized by 33 U.S.C. 
2236 may be applied to all vessels comparable in size to those vessels 
used to justify the completed construction of a usable increment of the 
Project; and
    Whereas the Board of Commissioners of the Navigation District has 
considered matters such as elapsed time of passage, safety of 
passengers and cargo, vessel economy of scale, under keel clearance, 
vessel draft, vessel squat, speed, sinkage and the cost of 
construction, operations, the value of the services of the vessel and 
cargo; and
    Whereas all vessels comparable in size to those vessels used to 
justify the completed construction of the useable increment anchorage 
basin benefit from the anchorage basin as a usable increment of the 
Project, a User Fee as set out below reflects the benefits provided by 
the Project to vessels whose design draft exceeds 20 feet.

Now Be It Ordained by the Navigation and Canal Commissioners of the 
Sabine Neches Navigation District

Authority and Jurisdiction

    The geographical boundaries of the Navigation District include an 
area that is co-extensive with Jefferson County, Texas, and the 
Navigation District exercises jurisdiction over the adjacent waterways, 
the nonpublic terminals and all vessels using the Sabine Neches 
Waterway Channel (``Waterway'').
    The Navigation District has the power and authority to regulate and 
fix charges for the use of the Waterway. The Navigation District is 
authorized to make and enforce rules and regulations to facilitate 
navigation and commerce, to every User. All vessels whose design draft 
exceeds 20 feet using the Waterway shall conform to this User Fee 
Ordinance (``Ordinance''), which establishes a user fee for the 
financing of the improvement Project (``User Fee''). All Users of the 
Waterway, by their use, consent to be bound by this Ordinance including 
these rules and regulations as they exist or may be amended from time 
to time.
    The Board of Commissioners of the Sabine Neches Navigation District 
is authorized by Article 16, Section 59, of the Constitution of the 
State of Texas, Chapter 60 of the Texas Water Code, and the Acts of the 
83rd Legislature Regular Session HB 1137 to act as the local sponsor 
for the Project.
    Refusal or failure to comply with these rules and regulations may 
result in any action deemed appropriate or advisable by the Navigation 
District in consultation with the United States Coast Guard Captain of 
the Port of Port Arthur and other relevant authorities, if any. The 
Navigation District may employ all legal means within its power to 
impose penalties and collect fees including the use and recovery of 
liens as permitted by 33 U.S.C. 2236.

General Application

    The use of the Sabine Neches Waterway constitutes an acceptance by 
the User of all charges, rules, and regulations published in this 
Ordinance. The charges, rules, and regulations published in this 
Ordinance apply on all cargo moving to and from terminals on the 
Waterway in vessels with a design draft exceeding 20 feet and shall 
apply to cargos transferred at all facilities and terminals on the 
Waterway.

Waterway User Fee

    A User Fee will be assessed against vessels whose design draft 
exceeds 20 feet and owners of all cargos transiting on vessels whose 
design draft exceeds 20 feet and loading or discharging at terminals or 
facilities on the Sabine Neches Waterway, beginning on a date 15 
calendar days after final approval of this Ordinance by the Board of 
Commissioners of the Navigation District. The purpose of the User Fee 
is to finance construction costs associated with the Project. Although 
the User Fee is assessed against both subject vessels carrying the 
cargo and the owner of the cargo carried by subject vessels, the User 
Fee will be collected only once on each cargo loaded or unloaded onto a 
subject vessel but may be collected from either the subject vessel or 
the cargo owner. To avoid any confusion, ``subject vessel'' means a 
vessel whose design draft exceeds 20 feet.
    The User Fee authorized by this resolution does not apply to (i) 
vessels owned, chartered, or 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) vessels engaged in 
towing, dredging or channel maintenance activities, (iii) vessels 
engaged in intra-port movements; or (iv) vessels with design drafts of 
20 feet or less.
    For purposes of this Ordinance, ``hydrocarbon'' means oil, gas, 
ethanol, methanol, a commodity or thing made or manufactured-in whole 
or part-from oil or gas, and derivatives or by-products or fractions of 
oil or gas all regardless of their physical form and including mixtures 
of any or all of the above.
    The User Fee authorized by this ordinance will expire on January 1, 
2049, or upon final payment of all

[[Page 7371]]

construction and construction financing costs associated with the 
Project, whichever occurs first.
    The User Fee is assessed for services including, but not limited 
to, meeting the financial responsibility of acting as the local sponsor 
for the Project.
    The User Fee will be assessed as a tonnage fee on cargo loaded or 
discharged through a terminal. The User Fee will be assessed as 
follows:

Hydrocarbon Cargo

    The Initial User Fee on hydrocarbon cargo is set forth below and 
will be identical to the schedule to be filed with the Secretary of the 
Treasury and the Federal Maritime Commission. The amount of the User 
Fee will be reviewed by the Navigation District at 12-month intervals 
and adjusted up, down or remain unchanged as required by the 
construction cost financing requirements of the Project, provided that 
the User Fee will not exceed the Maximum User Fee set forth below. If 
any change is made to the User Fee a new schedule will be filed with 
the Secretary of the Treasury and the Federal Maritime Commission 
indicating the new User Fee rate and the effective date of the rate 
change:
    Break-bulk: Initial $0.20 per short ton; Maximum $0.35 per short 
ton.
    Bulk: Initial $0.20 per short ton; Maximum $0.35 per short ton.
    Liquid Bulk: Initial $0.20 per short ton; Maximum $0.35 per short 
ton.

Non-Hydrocarbon Cargo

    The Initial User Fee on non-hydrocarbon cargo is set forth below 
and will be identical to the schedule to be filed with the Secretary of 
the Treasury and the Federal Maritime Commission. The amount of the 
User Fee will be reviewed by the Navigation District at 12-month 
intervals and adjusted up, down or remain unchanged as required by the 
construction cost financing requirements of the Project, provided that 
the User Fee will not exceed the Maximum User Fee set forth below. If 
any change is made to the User Fee a new schedule will be filed with 
the Secretary of the Treasury and the Federal Maritime Commission 
indicating the new User Fee rate and the effective date of the rate 
change:
    Break-bulk: Initial $0.02 per short ton; Maximum $0.035 per short 
ton.
    Bulk: Initial $0.02 per short ton; Maximum $0.035 per short ton.
    Liquid Bulk: Initial $0.02 per short ton; Maximum $0.035 per short 
ton.

Provision of Records

    The Navigation District will designate an officer or authorized 
representative to receive tonnage certificates and cargo manifests from 
vessels which may be subject to the levy of port or harbor dues, export 
declarations from 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. 
Terminal operators having custody of any cargo to be loaded on board a 
vessel while the vessel is on the Waterway shall, within forty-eight 
hours before departure of that vessel, deliver to the appropriate 
appointed authorized representative an export declaration specifying 
the cargo to be loaded on board each such vessel. Upon the arrival of a 
vessel on the Waterway, which the vessel may be subject to the levy of 
port or harbor dues under this Ordinance, 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 appointed 
authorized representative 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. The Navigation District may 
enter into memoranda of understanding with terminal operators or others 
individually or collectively to facilitate the efficacious provision of 
records and to modify these requirements as deemed appropriate by the 
Navigation District.

Responsibility for Payment of User Fee

    The vessel and owner of the cargo are each jointly responsible for 
payment of the entire User Fee to a representative authorized and 
designated by the Navigation District. Subject to procedures 
memorialized in memoranda of understanding, if applicable, invoices for 
payment of the User Fee will be delivered to vessels and cargo owners 
from whom User Fees are due or delivered to their respective agents. 
Those invoices will contain payment instructions. The Navigation 
District will not make any duplicate collection of the User Fee.

Payment Procedure

    On the 15th of the month following transfer of the cargo either to 
or from a terminal on the Waterway, the terminal involved will forward 
to the Navigation District any funds paid to the terminal by the vessel 
or the owner of the cargo toward the User Fees upon cargo that crossed 
the terminal's dock for the preceding month, along with a verified 
statement of the amount owed for the incurred User Fees for the 
preceding month. Any vessel or cargo owner who fails to pay the full 
User Fee shall be identified on the monthly verified statement. This 
verified statement will be submitted to the Navigation District on a 
form promulgated by the Navigation District and the accuracy of the 
information provided on the form shall be certified under penalties of 
perjury.
    Terminals shall keep records of the amounts owed and paid for the 
User Fee for a period of three years and make them available for audit 
by the Navigation District. The data and fees paid are subject to audit 
by the Navigation District or other authorities and the terminal will 
cooperate with the Navigation District's audit.
    All users and owners of private facilities and terminals shall be 
required to permit Navigation District representatives reasonable 
access to manifests of cargo, receiving reports and all other documents 
necessary to audit and ascertain the correctness of User Fees remitted 
or to be collected.
    The procedures outlined in the foregoing Provision of Records and 
Payment Procedure sections of the Ordinance may be modified by the 
terms of a Memorandum of Understanding (``MOU'') between an individual 
terminal operator and the Navigation District. In such case, the terms 
of the MOU shall control the obligations of the terminal operator under 
the Provisions of Records and Payment Procedure sections of this 
Ordinance.

Finance Charge

    All fees are due and payable upon the 15th of the month following 
the use of the Waterway. Any User Fee incurred, which is unpaid thirty 
(30) days from that date, shall be deemed to be delinquent.
    Any amount that is unpaid on or after thirty (30) days from the 
date due will be assessed an interest charge of twelve percent (12%) 
per annum of the amount of the fee due, and shall be due and owing from 
the date of delinquency until paid. Such interest charges shall be 
calculated on a per annum basis of three hundred sixty-five (365) days.

Venue and Attorney Fees

    Additionally, should it become necessary for the Navigation 
District to file suit to collect any delinquent User Fees or to enforce 
any provision of this Ordinance, the party obligated herein to pay such 
User Fees under this section or the party against whom enforcement of 
the User Fee is sought consents to such suit being filed in the 
appropriate Federal District Court in Jefferson County, Texas. The 
Navigation District shall be entitled to seek all relief permitted by 
33 U.S.C. 2236.

[[Page 7372]]

Severability

    If any provision of this Ordinance or its application to any person 
or circumstance is held invalid, the invalidity does not affect other 
provisions or applications of this Ordinance that can be given effect 
without the invalid provision or application, and to this end the 
provisions of this Ordinance are severable.

Notice

    Pursuant to Sec.  60.075(c) of the Texas Water Code, a descriptive 
caption stating the purpose of this Ordinance and penalty for its 
violation will be published for a ten (10) day period following the 
passage in every issue of the Beaumont Enterprise, a newspaper of 
general circulation in the Navigation District.
    This User Fee Ordinance was passed at a Regular Meeting of the 
Commissioners of the Sabine Neches Navigation District.

Vance F. Stewart, III,
Senior Official Performing the Duties of the Assistant Secretary of the 
Army (Civil Works).
[FR Doc. 2021-01828 Filed 1-27-21; 8:45 am]
BILLING CODE 3720-58-P