Page 18: of Marine News Magazine (November 2023)

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Column

Legal Beat

Bringing the Capital Construction Fund Program Ashore

By James Kearns, Special Council, Jones Walker LLP

On May 5, 2023, base amount, providing a total of more than $662 million the White House announced that the Environmental Pro- for FY 2023. The NOFOs that have been issued for this tection Agency (EPA) was “taking the next step to invest $3 increased funding have emphasized the importance of dem- billion in its Clean Ports Program to fund zero-emission port onstrating that a project for which funding is requested will equipment and technology and to help ports develop climate mitigate the emission of greenhouse gases, including the action plans to reduce air pollutants, improve air quality and cargo handling equipment to be purchased for the project.

public health in neighboring communities, and advance en- While funding programs such as those of EPA and MARAD vironmental justice.” That “next step” was the issuance of a are important in furthering the policy goals they are intended

Request for Information to inform EPA of the availability to support, history has shown that the continued and regu- of zero-emission technologies in the heavy-duty vehicle and lar authorization and appropriation of funds by Congress for port sectors in the agency’s development of funding pro- such programs cannot be relied on, with recent developments grams under the Infation Reduction Act of 2022. EPA has on Capitol Hill being only the latest example of this. At the announced that it anticipates this new funding opportunity same time, it is reasonable to expect that the pressure on ports will become available for application through a notice of and marine terminals to achieve the policy objectives that gave funding opportunity (NOFO) released in late winter 2024. rise to these programs will continue and even increase, even if

The Infrastructure Investment and Jobs Act (IIJA), also the funding of grant programs does not keep pace.

known as the Bipartisan Infrastructure Law, substantially To help address this situation and other funding needs of increased funding for the Ports Infrastructure Development ports and marine terminals, in late July of this year, Repre-

Program (PIDP) that is administered by the U.S. Depart- sentatives Mike Ezell (R-Miss.) and Troy Carter (D-La.) in- ment of Transportation through its Maritime Administra- troduced in the U.S. House of Representatives H.R. 4993, tion (MARAD). Through the IIJA, $450 million was pro- a bill to extend the Capital Construction Fund (CCF) pro- vided to the PIDP for each of fve consecutive fscal years gram administered by MARAD to landside marine facilities.

(FYs) beginning with FY 2022. The Consolidated Appro- For those not already familiar with the CCF program, priations Act, 2022, added more than $230 million to this since its creation in the Merchant Marine Act of 1936, it amount for that fscal year, and the Consolidated Appro- has allowed owners and operators of eligible U.S.-fag vessels priations Act, 2023, added more than $212 million to the to defer federal taxes on income from vessel operations and © William A. Morgan / Adobe Stock 18 | MN November 2023