# Petition for Writ of Certiorari — United States v. United States Shoe Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0118%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 360 ## Text yer 4 * No. G 7 — 3 1 In the Supreme Court of the United States OCTOBER TERM, 1996 UNITED STATES OF AMERICA, PETITIONER UNITED STATES SHOE CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General KENT L. JONES Assistant to the Solicitor \ E C E \ * E D General DAVID M. COHEN wD JEANNE E. DAVIDSON AUG 29 1997 Topp M. HUGHES Attorneys CLERK off ct Of — US. Department of Justice | SUPREME coun’: — Washington, D.C. 20530 — (202) 514-2217 QUESTION PRESENTED Whether application of the Harbor Maintenance Tax (26 U.S.C. 4461(a)) to goods loaded at ports of the United States for export shipment violates the Export Clause of the Constitution. (I) TABLE OF CONTENTS Page IIE cctetnneccentccndnsssenstiscinnsiiienenssensnsnenntnaesenssecunss 1 TK 2 Constitutional and statutory provisions involved .......... 2 ET 4 Reasons for granting the petition ................................. 12 % 26 ee la 11———— —̃ ¶¶⁰ — da TABLE OF AUTHORITIES Cases: Alamo Rent-A-Car, Inc. v. City of Palm Springs, ... •fTññͤ 22 Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Air- port Authority, 906 F. 2d 516 (11th Cir. 1990), cert. denied, 498 U.S. 1120 (1991) 15-16, 20 Armour Packing Co. v. United States, 209 U.S. 56 Ee 13 Board of Trustees of University of Illinois v. United States, 280 US. 48 (19GB) .......................0000...000000e- 13 Capitol Greyhound Lines v. Brice, 339 U.S. 542 — — — 20-21 Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U.S. 707 (1972) .......... 9, 16, 18, 20, 21, 22 Fairbank v. United States, 181 U.S. 283 (1901) . 12, 14, 23-24 Florida Power & Light Co. v. United States, 846 F. 2d 765 (D.C. Cir. 1988), cert. denied, 490 U.S. 111111 ———— 18 Glickman v. Wileman Bros. & Elliott, 117 S. Ct. — ——— 14 Head Money Cases, 112 U.S. 580 (1884) .................. 10, 21 (III) Cases—Continued: Page Constitution, statutes and regulation: Page International Harvester Co. v. Evatt, 329 U.S. 416 38 — c 21 e 2. 6, 12 Maine v. Department of Navy, 973 F.2d 1007 (ist Export Clause . 8. 10, 13, 14, 18 2303 — — — 18. 24 Import-Export Clauss 18 Massachusetts v. United States, 435 U.S. 444 Omnibus Budget Reconciliation Act of 1990, Pub. L. . 5, 9, 11, 13, 15, 16, 18, 20, 22, 23 No. 101-508, § 11214, 104 Stat. 1388-436.................... 5 National Cable Television Ass'n v. United States, Water Resources Development Act of 1986, Pub. L. r ... 17 XJ . 4 New Hampshire Motor Transport Association v. . 5 Flynn, 751 F.2d 43 (Ist Cir. 1984) 17 4461. 100 Stat. 688 5 New Orleans Steamship Ass'n v. Plaquemines Port, Water Resources Developement Act of 1990, Pub. L. 1 Harbor and Terminal Dist., 690 F. Supp. 1515 No. — 1 ä — - (E.D. La. 1988), aff’d, 874 F.2d 1018 (5th Cir. 1989), — — — — — Ea 2999 ——— — Z —Tʃ 2,4 A. ee 8. 12, 14, 23 ha a 4, 7,8, 14 Co. . Keokuk, 96 US 80 (1877) ............... 13 E —— 4 Richfield Oil Corp. v. State Board of Equalization, une 17 329 U.S. 69 (1946) ..........—.C —. 13 a uuimemnenen 5 San Juan Cellular Telephone Co. v. Public Service r ⁊ 5 Commission of Puerto Rico, 967 F 2d 683 (ist Cir. EE —. 7 3 — ² ˙hQ—Q— ] —'———— as 18 r 7 Union Pacific Railroad v. Public Utility Comm n, Se 7 114. K ˙ 18 I I en 6 ö Seen R ²˙ LÄ r 1 99.1111 5, 15, 16 United States v. American Bar Endowment, 477 26 U.S.C. 9505(c) ..... — . 12 292828 —— ——ʒ—Z—ä ——.... . 8. 25 mn 4 ——— 7 FO Ee a 12 e — - United States v. Hill, 506 U.S. 546 (1998) ............. 12, 25 . 7 United States v. Sperry Corp. 493 U.S. 52 (1989 — 16, 111313 — —— 6 18, 20, 22 Miscellaneous: H.R. Rep. No. 881, 101 Cong., 2d Sess. (1990) ........... 16 S. Rep. No. 126, 99th Cong., 2d Sess. (1989) .. 5, 6, 15, 19 S. Rep. No. 228, 99th Cong., Ist Sess. (1986) ............. 5, 7, * In the Supreme Court ol the United States Miscellaneous Continued: * OcTOBER TERM, 1997 Water Resource Conservation, Development, and In- frastructure Improvement Act of 1985: Hearing —— the House Comm. on Ways and Means, eans, 99th — —— —— . 23 UNITED STATES OF AMERICA, PETITIONER the Senate Comm. on Finance, 99th Cong., Ist Sess. (1985) No. v. UNITED STATES SHOE CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Acting Solicitor General, on behalf of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit in this case. OPINIONS BELOW The decision of the court of appeals (App., infra, la- 45a) is reported at 114 F.3d 1564. The decision of the United States Court of International Trade (App., infra, 46a-89a) is reported at 907 F. Supp. 408. (1) 2 JURISDICTION The judgment of the court of appeals was entered on June 3, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. Article I, Section 9, Clause 5 of the Constitution of the United States provides: No Tax or Duty shall be laid on Articles ex- ported from any State. 2. 26 U.S.C. 4461 provides: (a) General rule.— There is hereby imposed a tax on any port use. (b) Amount of tax.—The amount of the tax imposed by subsection (a) on any port use shall be an amount equal to 0.125 percent of the value of the commercial cargo involved. (e) Liability and time of imposition of tax.— () Liability—The tax imposed by sub- section (a) shall be paid by — (A) in the case of cargo entering the United States, the importer, (B) in the case of cargo to be exported from the United States, the exporter, or C) in any other case, the shipper. (2) Time of imposition.— Except as pro- vided by regulations, the tax imposed by sub- section (a) shall be imposed (A) in the case of cargo to be exported from the United States, at the time of loading, and (B) in any other case, at the time of unloading. 3. 26 U.S.C. 4462 provides, in relevant part: (a) Definitions.—For purposes of this sub- chapter— Port Use.—The term “port use” means — (A) the loading of commercial cargo on, or (B) the unloading of commercial cargo from, a commercial vessel at a port. (2) Port.— (A) In general—The term “port” means any channel or harbor (or component thereof) in the United States, which— (i) is not an inland waterway, and (ii) is open to publie navigation. * e+ „ ** (3) Commercial cargo.— (A) In general—The term “commercial cargo” means any cargo transported on a commercial vessel, including passengers transported for compensation or hire. (B) Certain items not included.—The term “commercial cargo” does not include— 1 (i) bunker fuel, ship's stores, sea stores, or the legitimate equipment necessary to the operation of a vessel, or (ii) fish or other aquatic animal life caught and not previously landed on shore. XR * X X * STATEMENT Approximately 4000 cases have been filed in the United States Court of International Trade to chal- lenge the constitutionality of the Harbor Mainte- nance Tax, 26 U.S.C. 4461. Approximately 90 similar challenges to the tax are pending in the Court of Federal Claims. The present case was selected by the Court of International Trade as a test case for this litigation. The other similar suits have been held in abeyance pending the final disposition of this case. I. a. The Harbor Maintenance Tax imposes a port use charge of 0.125 percent of the value of any commercial cargo that is loaded or unloaded from a commercial vessel in any port of the United States. 26 U.S.C. 4461(a). The tax applies without differentia- tion as to the origin or destination of the cargo. The incidence of the tax is simply upon “any port use” (26 U.S.C. 4461(b). The Harbor Maintenance Tax was enacted as part of the Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082. That Act was enacted by Congress to provide funds for the neces- sary costs of maintaining and expanding channel and harbor facilities by “impos[ing] Federal user fees or 5 s on the beneficiaries of these expenditures.” 22 No. 228, 99th Cong., Ist Sess. 5 (1986). Be- cause the United States has an obvious interest in making those who specifically benefit from its services pay the cost” (Massachusetts v. United States, 435 U.S. 444, 462 (1978)), Congress determined to impose a nationally-uniform fee on the “value of the cargo passing” through harbors (S. Rep. No. 126, 99th Cong., 2d Sess. 9 (1985)). The Senate Report on the Act explains that (S. Rep. No. 228, supra, at 5-6): (T]he ad valorem basis of the charges is the only acceptable basis on which to impose such charges. This national, uniform basis minimizes any possi- ble competitive disadvantage among cargo types and U.S. ports which otherwise might result from user charges. The Harbor Maintenance Tax is er from the exporter or other shipper whose cargo is — 1 — me Mo in a port of the United States. 26 U.S.C. 4461(c)(1), (2). The charges thus collected are deposited in the Harbor Maintenance Trust Fund (26 U.S.C. 9505)) and “may only be expended for har- bor operations and maintenance” costs incurred on the shippers’ behalf (App., infra, 45a (Mayer, J bg dissenting)). See 26 U.S.C. 9505(c).' In enacting this 1 The Harbor Maintenance Tax was originally established at 0.040 percent of value. Pub. L. No. 99-662, § 4461, 100 Stat. 4266. In the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 11214, 104 Stat. 1388-436, it was increased to its current level of 0.125 percent. Before the rate of this port use charge was increased, the Harbor Maintenance Trust Fund provided approximately 40 percent of the necessary funds for the operation and maintenance of eligible channels and harbors. Pub. L. No. 99-662, § 210, 100 Stat. 4106. Since 1991, the Trust 6 fee, Congress determined that the commercial users who are the principal beneficiaries of the costs in- curred in developing and maintaining channels and —— nara general taxpaying public— 8 nance the upkeep of iliti * pkeep of these facilities. S. Rep. b. The Harbor Maintenance Tax is the United States Customs Service. 8 such payments to the Customs Service along with payments of customs duties. Exporters and domestic shippers, who pay no duties, remit the tax to the Customs Service on a quarterly basis pursuant to 19 C. F. R. 24.24. The monies collected by the Customs Service are then transferred to the Harbor Main- tenance Trust Fund pursuant to 26 U.S.C. 9505(b). . 2. Respondent loads goods for shipment as exports in ports of the United States and, along with import- ers and domestic shippers, is therefore subject to the Harbor Maintenance Tax. After making several pay- ments of this port user charge, respondent com- menced this refund suit in the United States Court of International Trade. Respondent claimed that appli- cation of the Harbor Maintenance Tax to cargo loaded in a port of the United States for export violates the Export Clause of the Constitution, which provides that Ino Tax or Duty shall be laid on Articles 8 from any State.“ U.S. Const. Art. I, § 9, Cl. The Court of International Trade agreed wi - spondent that the Harbor Maintenance Tax Ace Fund has provided approximatel y 100 percent of those funds Water Resources Development Act of 1990 : 640, § 316, 104 Stat. 4641. » Pub. L. No. 101- 7 prohibited tax on exports (App., infra, 46a-89a).” The court rejected the government’s contention that this statutory fee for “any port use” (26 U.S.C. 4461(a)) is a permissible charge for the use of port facilities. The court stated that “there is little indication that Congress intended to establish a user fee” (App., infra, 56a) and that the “primary purpose of the [Har- 2 In enacting the Harbor Maintenance Tax, Congress speci- fied that, f lor purposes of determining the jurisdiction of any court of the United States or any agency of the United States, the tax imposed by this subchapter shall be treated as if such tax were a customs duty.” 26 U.S.C. 4462(f)(2); see id. 4462(f)(1). The Senate Report explained that “the Court of International Trade is to have primary jurisdiction for actions involving the port user charge provisions.” S. Rep. No. 228, supra, at 10. Respondent seeks a refund of payments for which it made a timely administrative protest with the Cus- toms Service pursuant to the provisions applicable to customs duties (19 U.S.C. 1514, 1515). The government acknowledged that the Court of International Trade has jurisdiction in this case, for respondent’s claim “contest{s] the denial of a protest” (28 U.S.C. 1581(a)). The Court of Internacional Trade held, however, that, regardless of any protest, the court would have jurisdiction under 28 U.S.C. 1581(i) because respondent's claim was filed in that court within two years after the tax was paid. See App., infra, 75a-76a; 28 U.S.C. 2636(i). That holding was affirmed by the Federal Circuit. App., infra, 14a. We do not seek review of that holding in this petition. Whether the jurisdiction of the court rests upon 28 U.S.C. 1581(a)—because respondent seeks review of a denial of a protest—or upon 28 U.S.C. 1581(i)—because this suit was com- menced within two years of payment—has no relevance to the proper disposition of this case. That issue is of relevance only for other claimants, who have challenged the Harbor Mainte- nance Tax without first filing an administrative protest. This jurisdictional issue is, moreover, peculiar to the refund re. quests of exporters under the Harbor Maintenance Tax and lacks recurring application in other contexts. 8 bor Maintenance] Tax is to raise revenue“ (id The court reasoned that little nexus binds —— sition of the ad valorem tax on cargo to the costs of port maintenance” and that the “fees collected * * * yield funds for the purpose of maintaining and devel- oping American ports and harbors for all uses, com- mercial and recreational” (id. at 58a). The court con- cluded that Congress impermissibly imposed a consti- rn duty under the pretext of fix- 1 a, quoting Pace v. Burgess, 92 U.S. The court assumed, without decidi statutory fee for “any port use” — te ao — bor Maintenance Tax (26 U.S.C. 4461(a)) does not dis- criminate against exports. The court nonetheless concluded that, as applied to goods loaded for ex rt the tax violates the Export Clause because it * fairly related to “the cost of the benefits port users receive from harbor maintenance and development projects (App., infra, 60a). The court stated that the port use fee imposed by the Harbor Maintenance Tax has yielded revenues “in excess of costs incurred” in operating and maintaining port facilities and that these funds may be “used to fund projects yet to be commenced, or even envisioned” (ibid.). The court 1 * the charge is therefore “excessive in o the cost to * 1 idi port facilities (ibid.). d 3. a. The Federal Circuit has exclusive jurisdi tion over appeals from decisions of the Court —— national Trade. 28 U.S.C. 1295(a)(5). Sitting as a five-judge panel in this case, the court of appeals affirmed the decision of the court below (App., in fra, la-30a), with one judge dissenting (id. at 3la-45a). The court held that the port use fee imposed by the 9 Harbor Maintenance Tax is unconstitutional as applied to goods loaded for export from the ports of the United States. The court of appeals noted that, under this Court’s decisions in Evansville-Vanderburgh Airport Au- thority District v. Delta Airlines, 405 U.S. 707 (1972), and Massachusetts v. United States, 435 U.S. 444 (1978), a government fee exacted in connection with the provision of services may constitutionally be applied to goods for export if the fee (i) does not discriminate against exporters, (ii) is based upon a fair approximation of use and (iii) is not excessive in relation to the costs incurred by the government in providing the services (App., infra, 17a). Without ad- dressing the first and third prongs of this test, the court concluded that the Harbor Maintenance Tax is unconstitutional as applied to goods for export be- cause “there is no correlation between the amount of [the tax] an exporter pays and the amount the ex- porter uses the port” (ibid.). The court of appeals gave three reasons for its conclusion. First, the court noted that the tax is im- posed on and collected from the party who ships the goods rather than on “the ship owners” who are the “direct users” of the ports and harbors (App., infra, 19a). Second, the court stated that, because the statu- tory port use fee is assessed on the value of goods being shipped, it lacks any reasonable connection with the cost or value of the benefits provided from use of the port (id. at 2la-22a). Third, the court found it objectionable that “exporters are forced to pay for harbor maintenance across the entire country, even though they receive no benefit from maintained har- bors at any port other than the one they actually use” (id. at 22a). 10 The court rejected the government's contention that a fee based solely upon the use of a port is not a tax on an “[aJrticle of export” within the meaning of the Export Clause. The court reasoned that the fee falls on the goods, and not on the use of the port, because it “is imposed on an ad valorem basis at the time the exported goods are loaded on the vessel” and the “exporter, rather than the manufacturer, pays the tax” (App., infra, 24a). The court also rejected the government’s conten- tion that the Harbor Maintenance Tax is not a pro- scribed tax on exports because it constitutes a valid exercise of the power of Congress to regulate inter- state and foreign commerce. The court concluded that the statutory fee on “port use” is not a regula- tion of commerce because the fee “regulates nothing” (App., infra, 27a). The court stated that the Harbor Maintenance Tax does not regulate commerce be- cause “[iJt is not designed to reduce the overall use of the ports” and because “the government has not per- suaded us that the [tax] is designed to simply recoup the costs of the services” provided to users of ports and harbors (ibid.). b. Judge Mayer dissented. He noted that a user fee differs from a tax because “a tax is enacted to raise revenue ‘to go to the general support of the govern- ment,’ see Head Money Cases, 112 U.S. 580, 596 (1884), while a user fee is designed as a specific charge for the use of government facilities and serv- ices” (App., infra, 32a). Based upon the text and the extensive legislative history of the statute, Judge Mayer concluded that the Harbor Maintenance Tax is a constitutionally valid fee for the use of harbor facili- ties that satisfies all three prongs of the test estab- 11 lished by this Court in Massachusetts v. United States, 435 U.S. at 464, 466-470. peed First, Judge Mayer disagreed with the majority’s conclusion that a fee assessed equally against export- ers and all other shippers for the use of the ports of the United States is constitutionally infirm because the parties who must pay the fee are not the “direct beneficiaries” of the services that the government provides. He noted that this conclusion is illogical as a matter of economics and also “flies in the face of Congress’ finding that exporters are the direct bene- ficiaries” of port services (App., infra, 42a). Because the ultimate burden of any fee imposed on “port use is allocated by economics, not by statute, Judge Mayer emphasized that “it is unimportant whether the fee be assessed against exporters and importers, the ultimate beneficiaries of the harbor maintenance and operations projects, or against the actual vessel owner, to be passed on to the importers or exporters if it chooses” (ibid.). 8 Judge Mayer also rejected the majority's eonclu- sion that the Harbor Maintenance Tax is not fairly related to the costs incurred by the government in provising and maintaining port facilities (App., infra, 39a-45a). It was expressly to avoid discrimination among ports and port users that Congress chose to allocate the costs of providing these services under a nationally-uniform charge based upon the value of goods shipped (id. at 39a). Judge Mayer concluded that the Constitution does not require Congress to calculate the port use fee separately for each port, because “[e]very exporter has all ports and harbors available to it” (id. at 40a). 12 REASONS FOR GRANTING THE PETITION Trade and the Court of Federal Claims, any appeal from the approximately 4000 pending challenges to the Harbor Maintenance Tax would necessarily be to that circuit. It is therefore unlikely that any other court of appeals will have an opportunity in the future to review this same issue. The numerous pending cases seek refunds of hun- dreds of millions of dollars of fees that have been col- lected to fund the operation and development of the ports of the United States. In similar circumstances, this Court has recognized the need for plenary review of Federal Circuit decisions of significant fiscal im- portance. See, e.g., United States v. Hill, 506 U.S. 546, 549 (1993); United States v. Goodyear Tire & Rubber Co., 493 U.S. 132, 138 (1989); United States v. American Bar Endowment, 477 U.S. 105, 109 (1986). Such review is especially appropriate in this case because the Federal Circuit has held an Act of Con- gress unconstitutional. I. a. This Court has long recognized the distinc- tion that exists between an unconstitutional “Tax or Duty * * * laid upon Articles exported” (U.S.Const. Art. I. § 9, Cl. 5) and a permissible user fee that exacts compensation * * for services properly rendered.” Fairbank v. United States, 181 U.S. 283, 304 (1901), quoting Pace v. Burgess, 92 U.S. 372, 375 (1875). “[Rjevenue measures that operate only to compensate a government for benefits supplied” are 13 i t not constitutionally proscribed, for the governmen “has an obvious interest in making those who —.— cally benefit from its services pay the cost (Unite States v. Massachusetts, 435 U.S. at 462). e The court of appeals did net dlapute thet Congress may properly exercise its power under the Commerce „ “recoup the costs of the services” provided to users _ and harbors (App., infra, 27a). A burden upon exports 4 posed pursuant to a valid exercise of Congress's power regulate commerce does not violate the Export * Armour Packing Co. v. United States, 209 US. 56, (1908). The powers to tax and to regulate 2 independent sources of legislative authority. See Richfie - Corp. v. State Board of Equalization, 329 US. 69, Me (1946); Board of Trustees of University of Illinois v. * States, 289 U.S. 48, 58 (1933). Restrictions applicable to imposes a fee to recover expenses incurred tere merce. See, g., Packet Co. v. Keokuk, 95 US. 80 (1877) ees assessed for wharf usage were charges for services and = tax); New Orleans Steamship Ass'n v. Plaquemines a Harbor and Terminal Dist., 690 F. Supp. 1515, 1522 12 1988) (“charges levied to defray the cost of services that - hamper, but indeed, aid interstate commerce, have consistently been upheld by the Supreme Court”), aff d. 874 F.2d 1018 (5th Cir. 1989), cert. denied, 495 U.S. 932 (1990). That the Harbor Maintenance Tax does not “reduce the funds enhance, not reduce, commercial use of port facilities. — ——— wes enacted to provide fends “for operations — —— oa rr borne commerce.” S. Rep. No. 228, supra, at 5. — — concluded that “{sjuch additional investment in U.S. ports wi facilitate economic development and make the Nation’s water more efficient.” bid. The compulsory contribution that Congress has required from those who benefit 14 In determining whether a charge imposed use of commercial facilities provided by the — ment constitutes a “tax” within the proscription of the Export Clause or a permissible charge for services properly rendered,” the initial inquiry is whether the primary purpose of the charge is to earn revenue: “The point to guard against is, the imposi- tion of a duty under the pretext of fixing a fee.” Pace v. Burgess, 92 U. S. at 375-376. See also Fairbank v. United States, 181 U.S. at 304. Enhancement of the general revenue, however, is plainly not an overt or disguised purpose of the Harbor Maintenance Tax This statutory fee on “any port use” (26 U.S.C 4461(a)) was enacted as part of a comprehensive leg- islative program providing for the operation and “tax,” in the constitutional sense. See e.g., 8. . e. g., S. Rep. No. 228, supra, at 5 (“the committee — — new port user charges”). In imposing this — — use of ports of the United — — N explained that t he taxes and fees in legislation are not for the purpose of raising revenue. Rather, they are to repay costs related di- rectly to the servicing of commerce. These fees and 15 taxes offset services rendered to vessels.” S. Rep. No. 126, supra, at 7. Consistent with this clear statement of legislative purpose, the fees collected under this statute are deposited in the specially designated Harbor Mainte- nance Trust Fund, from which they may be expended only for port and harbor maintenance. 26 U.S.C. 9505(c). These funds may not be used to support the general welfare. See App., infra, 36a (Mayer, J., dissenting) (“The government has been true to this constraint.”). The fact that this Trust Fund currently enjoys a positive balance (see note 1, supra) does not mean, as the courts below erroneously concluded (App., infra, 57a-58a), that the Harbor Maintenance Tax is a dis- guised and proscribed “tax” rather than a valid “fee” for services. The precise level of funding required each year for the development, maintenance and op- eration of harbor resources obviously fluctuates over time. As this Court explained in Massachusetts v. United States, 435 U.S. at 470 n. 25, in rejecting the same contention adopted by the court of appeals in this case: Even if the revenues in any one year exceeded the outlays, it would not follow that the tax is invalid as applied. * * [The validity of the tax lis] determined by comparing total revenue with total outlays: i. e., a surplus of revenue over outlays in any one year can be offset against actual deficits of past years and perhaps against projected deficits of future years. See also Alamo Rent-A-Car, Inc. v. Sarasota- Manatee Airport Authority, 906 F.2d 516, 522 (11th Cir. 1990) (“given the long term nature of maintaining 16 and developing an airport, it was appropriate * to — in future development plans when setting user at, 2 Sea U.S. 1120 (1991). lecision o court of appeals thus serious! — — this Court’s precedents in concluding that charges imposed by the Harbor Maintenance Tax represent an unconstitutional “duty” masqueradin as a “fee. As the dissent instead correctly — sizes (App., infra, 32a-33a), the relevant fact is that the Trust Fund into which the fees are deposited may not be expended at any time for any purpose other than the operation, maintenance and development of — 7 1 I for commercial navigation. S.C. e H.R. Sena ae „ H.R. Rep. No. 881, 101 Cong., 2d b. The decisions of this Court establi fee does not constitute a proscribed — — ‘fee (i) does “not discriminate against” a constitutionally protected interest, (ii) is “based upon some fair — sy sy : use” and (iii) is “not shown to be ve in relation to the cost of the benefits conferred.” . nd 9 ’. United — — U.S. at 464. See also Evansville-Vander- rgh Airport Authority District v. Delta Airlines 405 U.S. at 716-720. When, as in the present case the Statute was enacted with a “specific declaration by Congress that the (fees collected] are intended to reimburse costs incurred by the United States, the burde n must lie with [the plaintiff] to demonstrate that the fee, in reality, is impermissibly designed to raise general revenues. United States v. Sperr R 493 U.S. 52, 60 (1989). * court of appeals did not con bor Maintenance Tax — deen lla Nor did the court conclude that the fee imposed by the 17 statute is excessive in relation to the costs of the benefits conferred (App., infra, 17a).’ Instead, the court concluded that the statutory fee is unconstitu- tional because it is not based upon some “fair approxi- mation of use” of the ports of the United States (id. at 23a). Each of the three rationales offered by the court of appeals in support of its conclusion is incorrect and conflicts with decisions of this Court. (i) The court of appeals stated that the statutory fee is not based upon some “fair approximation of use” because it is imposed on exporters and other parties who ship goods rather than on “the ship owners” who are the “direct users” of the Nation’s ports and har- bors (App., infra, 18a, 19a). The court of appeals pro- vided no citations of authority to support this proposi- tion, however, and no such authority exists. 4 The Harbor Maintenance Tax clearly satisfies these two prongs of the test used by this Court in determining whether the exaction is a permissible user fee. The statutory fee applies to all importers, exporters and domestic shippers (26 U.S.C. 4461(c)) and thus does not discriminate against exporters. And, for the reasons described in the text (pages 14-15, supra), the fees collected are not excessive in relation to the expendi- tures made by the government. Although the Trust Fund cur- rently enjoys a positive balance, that fact does not affect the constitutionality of the fee. See, e. g., Massachusetts v. United States, 435 U.S. at 470 n.25; App., infra, 44a (Mayer, J., dis- senting). For example, in New Hampshire Motor Transport Association v. Flynn, 751 F.2d 43, 47 (Ist Cir. 1984), the court upheld a user fee even though the monies collected were to be used to fund projects not yet commenced rather than to repay the government for past services rendered. ° Respondent argued in the court of appeals that only a “direct beneficiary” of a government program may be sub- jected to a fee for the costs of that program. Respondent claimed that such a rule was established in National Cable Television Ass'n v. United States, 415 U.S. 336 (1974). That 18 Indeed, this Court has expressly rejected the very rationale on which the court of appeals relied. In United States v. Sperry Corp., 493 U.S. at 60, quoting Massachusetts v. United States, 435 U.S. at 463 n.19, the Court explained that it: has never held that the amount of a user fee must be precisely calibrated to the use that a party makes of Government services. * * * All that we have required is that the user fee be a “fair approximation of the cost of benefits suppplied.” In upholding a government fee imposed on the use of airport facilities in Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U.S. at 714 (emphasis supplied), the Court emphasized that it is “not * * * particularly important whether the charge is imposed on the passenger himself, to be collected by the airline, or on the airline, to be passed on to the passenger if it chooses. In either case, it is the act of enplanement and the consequent use of runways and other airport facilities that give rise to the obligation.” decision, however, concerned whether a particular agency fee had been authorized by a particular statute. See id. at 342-344. The Court “recognized that it was not announcing universal definitions of ‘tax’ and ‘fee’” but was “simply determining the meaning of these terms in a particular context quite different from that presented in” cases involving the limitations on taxing authority under the Export and Import-Export Clauses. Union Pacific Railroad Co. v. Public Utility Comm 'n, 899 F. 2d 854, 861 (9th Cir. 1990). See also San Juan Cellular Telephone Co. v. Public Service Commission of Puerto Rico, 967 F.2d 683, 687 (Ist Cir. 1992); Maine v. Department of Navy, 973 F.2d 1007, 1014 (1st Cir. 1992); Florida Power & Light Co. v. United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied, 490 U.S. 1045 (1989). 19 , as in Evansville, it is the use of government- — “facilties that give[s] rise to the obligation to pay the fee. As Judge Mayer correctly concluded in dissent in this case, because the ultimate burden of any fee imposed on “port use” is allocated by — ics, not by statutes, “it is unimportant whether the fee be assessed against exporters and importers, the ultimate beneficiaries of the harbor maintenance and operations projects, or against the actual —— owner, to be passed on to the importers or exporters 1 it chooses” (App., infra, 42a). The court of appeals improperly ignored the holding of this Court in Evansville in reaching its erroneous decision in this The court of appeals similarly erred in ignoring the determination of Congress that it is the exporters and other shippers, and not “the ship owners (App., infra, 19a), who are the “direct beneficiarlies] of port maintenance services. Congress enacted the Harbor Maintenance Tax to avoid the harsh consequences that inadequate and deteriorating ports and harbors would have for commercial shippers. 8. Rep. No. 126, supra, at 8. The fee on “port use was designed specifically to provide funding to enhance the facili- ties available for transporting the goods of commer- cial shippers. In assessing the port use fee against the shippers who use these facilities, Congress * tionally concluded that “a portion of Federal expendi- tures needed for port operations and maintenance should be borne by the direct beneficiaries of such expenditures.” S. Rep. No. 228, supra, at 5. The court of appeals lacked any plausible basis for re- jecting this determination of Congress that — shippers are the “direct beneficiaries of suc expenditures” (ibid.). 20 (ii) The court of appeals also erred in holding that the statutory fee on “port use” is not based upon a “fair approximation of use” because it is assessed on the value of goods being shipped rather than on tonnage or some other factor (App., infra, 21a). That holding conflicts with numerous decisions of this Court. “This Court has never held that the amount of a user fee must be precisely calibrated to the use that a party makes of Government services.” United States v. Sperry Corp., 493 U.S. at 60. Recognizing that, “when the Federal Government applies user charges to a large number of parties, it probably will charge a user more or less than it would under a perfect user- fee system,” the Court has specifically “declined to impose a requirement that the Government ‘give weight to every factor affecting appropriate compen- sation.’” Id. at 61, quoting Massachusetts v. United States, 435 U.S. at 468. For example, flat registration fees that do not vary based upon the amount of use have been sustained if that fee recovers a “fair approximation of the costs of the benefits supplied.” Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U.S. at 716-717. Fees for the use of transportation resources based upon the “fair market value” of the vehicle or upon the gross revenues of the transporta- tion service have also been sustained See id. at 715- 716; Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 906 F.2d at 516. Mileage or tonnage is not a necessary factor in calculation of a transportation use fee. As the Court emphasized in rejecting the challenge to the flat registration fee assessed in Massachusetts v. United States, 435 U.S. at 463, quoting Capitol Greyhound 21 Lines v. Brice, 339 U.S. 542, 545 (1950), the validity of a use fee “should be judged by its result, not its formula, and must stand unless proven to be unrea- sonable in amount for the privilege granted.” Accord Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U.S. at 716. Even though “(cJomplete fairness” would require that the use fee be calibrated based upon “every factor affecting appro- priate compensation” for the government services provided, “[tJhese factors are so countless that we must be content with ‘rough approximation rather than precision.’” Capitol Greyhound Lines v. Brice, 339 U.S. at 545, quoting International Harvester Co. v. Evatt, 329 U.S. 416, 422-423 (1947). The statutory fee for port use satisfies the require- ment that it not “be unreasonable in amount for the privilege granted.” The funds obtained through col- lection of the fee recover the costs incurred in provid- ing port services (pages 14-15, supra), and the fee is imposed on the parties whose goods are enhanced in value by these services. A recovery of a portion of the value of the benefits conferred—from those who receive that value—is not “unreasonable in amount for the privilege granted.” In holding to the contrary in this case, the court of appeals failed to adhere to this Court’s consistent admonition that the validity of the fee is to be “judged by its result, not its formula.” The Court has often emphasized that perfection in the allocation of costs among those who benefit is not required. For more than a century, the Court has recognized that “[pJerfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream.” Head Money Cases, 112 U.S. 580, 595 (1884). It is therefore “the amount of the tax, not its formula, that is of 22 central concern.” Evansville Airport Authority District v. Delta Airlines, 405 U.S. at 716-717. In United States v. Sperry Corp., 493 U.S. at 60, for example, the Court upheld a federal fee imposed for use of the Iran Claims Tribunal that was based solely on the value of the recovery. In upholding that ad va- lorem fee, the Court specifically rejected the notion “that the amount of a user fee must be precisely calibrated to the use that a party makes of Govern- ment services.” Ibid. It is thus “beyond dispute that an ad valorem charge can be a user fee” (App., infra, 41a (Mayer, J., dissenting), citing, e.g., United States v. Sperry Corp., 493 U.S. at 59-64; Alamo Rent-A- Car, Inc. v. City of Palm Springs, 955 F.2d 30 (9th Cir. 1992)). Congress reasonably concluded that an ad valorem fee was appropriate in the present context as well. Such a formula reasonably charges the costs of port operations to those who benefit from actual use of the ports. Moreover, allocating costs based upon the value of the goods being shipped substantially reduces administrative costs and burdens. Congress was aware that the Customs Service “has a strong pres- ence at ports of entry and is experienced at appraising imported merchandise.” S. Rep. No. 228, supra, at 10. Because the core information collected by the Cus- toms Service concerns the value of the cargo, struc- turing the Harbor Maintenance Tax on an ad valo- rem basis reduces administrative costs by utilizing The Court noted in Massachusetts v. United States, 435 U.S. at 466 that, “[i]f the National Government were required more precisely to calibrate the amount of the fee to the extent of the actual use of the airways, administrative costs would increase and so would the amount of revenue needed to operate the system.” 23 the existing data collection system. Extensive testi- mony was presented to Congress favoring such an ad valorem fee over a port-specific fee or a flat tonnage fee. See, e.g., User Fees for Ports and Waterways: Hearing Before the Senate Comm. on Finance, 99th Cong., Ist Sess. 47 (1985) (Senate Hearing); Water Resource Conservation, Development, and Infra- structure Improvement Act of 1985: Hearing Before the House Com: or Ways and Means, 99th Cong., ist Sess. 59 (1985) Cn Hearing). Shippers of low- value cargo testified that any fee for port use that was calculated upon tonnage would “disproportionately * * * affect bulk cargo marketability when compared to [its] impact on containerized cargo. It also would disadvantage export dependent ports in contrast to import dependent ports.” Senate Hearing, supra, at 19; see House Hearing, supra, at 59. In imposing the statutory fee on an ad valorem basis, Congress ra- tionally concluded that shippers of higher value cargo would receive greater benefits (e.g., greater profits) from the enhancement of port facilities and that value is therefore the only acceptable basis on which to impose such charges. This national, uniform basis minimizes any possible competitive disadvantages among cargo types and U.S. ports which otherwise might result from user charges.” S. Rep. No. 228, supra, at 5-6. ha tip cchoe the method of “fair approximation that Congress reasonably elected to employ in impos- ing this fee for port use, the court of appeals thus disregarded not only the decisions of this Court but also the clear legislative record. In particular, the court failed to follow the well-established rule, sum- marized by this Court in Fairbank v. United States, 24 181 U.S. at 304, quoting Pace v. B . g urgess, 92 U.S. at proper fees * * * are in no sense a duty on exportation. They are simply the compensation given for services properly rendered. The rule by which they are estimated may be an arbitrary one; but an arbitrary rule may be more conven- ient and less onerous than any other which can be adopted. * * Having due regard to that lati- tude of discretion which the legislature is enti- tled to exercise in the selection of the means for attaining a constitutional object, we cannot say that the charge imposed is excessive or that it amounts to an infringement of the constitutional provision * * * , (iii) The court of appeals further erred in con- cluding that the statutory port use fee is objection- able because “exporters are forced to pay for harbor maintenance across the entire country, even though they receive no benefit from maintained harbors at any port other than the one they actually use” (App. infra, 22a). This Court rejected an identical conten- tion in sustaining a federal fee for airport services in Massachusetts v. United States, 435 U.S. at 468. The Court explained that, even though a user may actu- ally land or take off from only a limited number of facilities, charging a nationally- uniform fee that con- tributes to a national fund for airport services is permissible because nationwide “services are avail- able for their use if needed and * * * the provision of the services makes the airways safer for all users.” Ibid. (footnote omitted) See also Maine v. Depart- ment of Navy, 973 F.2d at 1013-1014 (upholding a state fee as a “fair approximation” of the use of state 25 services when the parties benefit from the availability of the services as well as from any actual use). The decision of the court of appeals in this case conflicts with this settled rule. 2. Several thousand cases pending in the Court of International Trade and the Court of Federal Claims raise the same question presented in this case. The fees imposed by the Harbor Maintenance Tax involved in these cases exceed several hundred million dollars. Any appeal from judgments rendered in these cases will lie exclusively to the Federal Circuit. 28 U.S.C. 1295(a)(3), (5). It is therefore unlikely that any other court of appeals will have an opportunity to review the issue decided in this case. In similar contexts, this Court has recognized the need for plenary review of Federal Circuit decisions of significant fiscal importance. See, ¢.g., United States v. Hill, 506 U.S. at 549; cases cited page 12, supra. Such review is particularly appropriate when, as in the present case, the federal Circuit has failed to follow the decisions of this Court in improperly declaring an Act of Congress unconstitutional. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. SEPTEMBER 1997 WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General KENT L. JONES Assistant to the Solicitor General DAVID M. COHEN JEANNE E. DAVIDSON Topp M. HUGHES Attorneys APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 96-1210 UNITED STATES SHOE CORPORATION, PLAINTIFF -APPELLEE v. THE UNITED STATES, DEFENDANT-APPELLANT Decided: June 3, 1997 Before: MAYER, MICHEL, RADER, and BRYSON, Circuit Judges, and SmitH, Senior Circuit Judge. Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Circuit Judge MAYER. MICHEL, Circuit Judge. The United States (“the government”) appeals from the December 4, 1995 decision of the United States Court of International Trade granting summary judg- ment to United States Shoe Corporation (“US Shoe”) and holding that the court possessed jurisdiction over this case pursuant to 28 U.S.C. § 1581(i), not 28 U.S.C. § 1581(a), that the Harbor Maintenance Tax (“HMT”) violates the United States Constitution and is therefore void as applied to exports. See United States Shoe Corp. v. United States, 907 F. Supp. 408 (Ct. Int'l Trade 1995). The case was submitted for our (la) 2a decision after oral argument by the parties before a five-judge panel on February 7, 1997, following brief- ing not only by the parties but also by numerous amici. The Court of International Trade correctly exercised jurisdiction under 28 U.S.C. § 1581(i) and correctly concluded that the HMT violates the Ex- port Clause, U.S. Const., Art. 1, § 9, cl. 5, because it is a tax on exports rather than a user fee. The HMT, as applied to exports, is not a user fee but rather a tax because it is paid by the exporter, not the direct user of the harbor, and is calculated solely based on the value of the cargo loaded for export and bears no reasonable relationship to the cost of the use of the port facilities maintained by the government and therefore cannot be a fair approximation of use. We therefore affirm the judgment invalidating the HMT as applied to exports and ordering a refund to U.S. Shoe. BACKGROUND The HMT was imposed by Congress as part of the Comprehensive Water Resources Development Act of 1986 (“the Act”), Pub. L. No. 96-622, 100 Stat. 4082 (codified at 26 U.S.C. § 4461). The Act also estab- lished the Harbor Maintenance Trust Fund (“the Trust Fund”) to provide for the operation and mainte- nance of channels and harbors. The details of the HMT, the Act, and the Trust Fund relevant to this lawsuit are set forth in the trial court’s opinion and are not repeated here in detail. See United States Shoe, 907 F. Supp. at 411-12. In short, the Act imposes an ad valorem tax of 0.125 percent of the value of the commercial cargo in- volved in “any port use” of federally maintained navi- gable waterways. 26 U.S.C. §§ 4461, 4462(a)(2) (1994). 3a The HMT is imposed on bot exports and imports. As it specifically applies to exports, the HMT statute provides: (a) General rule.— There is hereby imposed a tax on any port use. b) Amount of tax.—The amount of tax imposed by subsection (a) on any port use shall be an amount equal to 0.125 percent of the value of the commercial cargo involved. (e) Liability and time of imposition of tax.— (1) Liability—The tax imposed _ by subsection (a) shall be paid by— (B) in the case of cargo to be exported from the United States, the exporter.... (2) Time of imposition.— Except as pro- vided by regulations, the tax imposed by subsection (a) shall be imposed— (A) in the case of cargo te be exported from the United States, at the time of loading. 26 U.S.C. § 4461 (1994) (emphasis added). The term “port use” is defined as “the loading of commercial cargo on, or ... the unloading of commercial cargo from, a commercial vessel at a port.” 26 U.S.C. § 4462(a)(1) (1994). The term “port” is defined as “any channel or harbor (or component thereof) in the United States, which ... (i) is not an inland waterway, and (ii) is open to public navigation.” 26 U.S.C. 4a S 4462(a)(2)A) (1994). The term “commercial cargo” is defined as “any cargo transported on a commercial vessel, including passengers transported for compen- sation or hire,” but does not include “bunker fuel, ship’s stores, sea stores, or the legitimate equipment necessary to the operation of a vessel, or ... fish or other aquatic animal life caught and not previously landed on shore.” 26 U.S.C. § 4462(a)(3) (1994). Thus, although there are certain exemptions, the tax is generally imposed against all imports, exports, domestic shipments, and passengers. See 26 U.S.C. §§ 4461(c)(1), 4462(a\(3)(A) (1994).' Money collected pursuant to the Act is transferred by Customs to the Trust Fund for disbursal upon further appropriation by Congress. See 26 U.S.C. § 9505(b) (1994). The fees were designed to finance the cost of harbor dredging. See S. Rep. No. 99-126 at 9 (1986), reprinted in 1986 U.S. C. C. A. N. 6639, 6647. By the end of fiscal year 1994, the total amount of fees collected and deposited in the Trust Fund was over 2.7 billion dollars, of which over 700 million dollars was paid by exporters. Although the HMT was first enacted in 1986, there were no constitutional challenges until recently. US Shoe paid the HMT on articles exported for the period April 1 through June 30, 1994. US Shoe then brought suit in the Court of International Trade for the re- fund of these payments on the ground that the HMT, as applied to exports, is unconstitutional. In January 1995, given the large number of pending lawsuits For passengers the tax is calculated based on the charge assessed for transportation. See 26 U.S.C. § 4462(a)(5)(B) (1994). 5a challenging the constitutionality of the HMT, the Court of International Trade established a three- judge panel and heard this case as a test case. See 28 U.S.C. § 255 (1994) (authorizing the chief judge of the Court of International Trade to designate a three- judge panel to hear cases raising the constitutional- ity of any Act of Congress or which have broad or significant implications in the administration or interpretation of customs laws). The parties filed cross-motions for summary judg- ment and, on October 25, 1995, the trial court issued its decision granting U.S. Shoe’s motion for summary judgment. United States Shoe, 907 F. Supp. at 408. The trial court first concluded that the HMT was unconstitutional as applied to exports because it constituted a tax, rather than a user fee, as it did not have regulation as its primary purpose and it did not recoup the costs of services provided to the payor. Id. at 413-18. Specifically, the trial court noted that “the Act neither discourages nor regulates use of a har- bor; neither does it so intend.” Jd. at 413. The trial court also found that “the primary purpose of the [HMT] is to raise revenue, as Congress has imposed ‘a duty under the pretext of fixing a fee.“ Id. at 414 (citation omitted). The trial court further determined that jurisdiction was not properly based on 28 U.S.C. § 1581(a), because there was no decision of Customs to protest. Id. at 418-21. In part, the trial court relied 2 As of the summer of 1996, there were approximately 2400 complaints pending in the Court of International Trade, as well as approximately 40 complaints pending before the Court of Federal Claims and one complaint pending in district court. The great majority of these lawsuits have been stayed pending the outcome of this appeal. 6a on the fact that “Customs does not determine the application, policies, or rates of the [HMT], but merely serves to implement its provisions.” Id. at 420. Rather, the trial court held jurisdiction was properly based on 28 U.S.C. § 1581(i) because Con- gress directed that the HMT be treated as a customs duty and because customs duties, by their very na- ture, provide for revenue from imports. /d. at 421. The Court of International Trade enjoined the gov- ernment from assessing and collecting the HMT and ordered the parties to file a proposed judgment. The government appealed, urging that we hold that jurisdiction over these disputes is only proper pursu- ant to 28 U.S.C. § 1581(a) and that the HMT is consti- tutional. We heard this case as a five-judge panel pursuant to Local Rule 47.2, which states that “ap- peals in cases from the Court of International Trade decided by a three-judge court pursuant to 28 U.S.C. § 255 will ordinarily be referred to a panel of five judges.” Fed. Cir. R. 47.2. ANALYSIS We “review the summary judgment in this case ‘for correctness as a matter of law, deciding de novo the proper interpretation of the governing statute and regulations as well as whether genuine issues of material fact exist.“ St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 767 (Fed. Cir. 1993) (quoting Guess? Inc. v. United States, 944 F.2d 855, 857 (Fed. Cir. 1991)). Here, the parties do not dispute any facts, but only dispute questions of law relating to the proper interpretation of the jurisdictional statutes and the constitutionality of the HMT as applied to exports. 7a L The parties do not dispute that the Court of Inter- national Trade possesses exclusive jurisdiction over this type of matter seeking a refund of HMT pursuant to 28 U.S.C. § 1581, in light of Congress’ provision that If lor purposes of determining the jurisdiction of any court of the United States or any agency of the United States, the tax imposed by this subchapter shall be treated as if such tax were a customs duty.” 26 U.S.C. § 4462(f)(2) (1994). The only dispute is whether subsection (a) or subsection (i) of section 1581 applies. The dispute exists because subsection (a) requires that the exporter first file a protest and limits recovery to amounts protested within 90 days of payment, while subsection (i) states only that the action must be initiated within two years of the date on which the cause of action accrued. The relevant statutory subsections provide as follows: (a) The Court of International Trade shall have exclusive jurisdiction of any civil action com- menced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. * * X X * (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsec- tions (a)-(h) of this section and subject to the ex- ception set forth in subjection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action com- menced against the United States, its agencies, 8a or its officers, that arises out of any law of the United States providing for - (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restric- tions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in para- graphs (1)-(3) of this subsection and subsec- tions (a)-(h) of this section. .... 28 U.S.C. § 1581 (1994). — A. Although admitting that it does not fit perfectly, the government argues that subsection 1581(a) never- theless confers jurisdiction over this dispute. The government argues section 1581(a) is the “established route” for obtaining judicial review of duties, charges, and exactions imposed by Congress. As Congress en- visioned that the HMT would be treat ed like a duty, the government argues jurisdiction under this sub- section is the only logical result. The government admits, as it must, that subsection (a) requires that prior to the time an exporter can seek judicial review, Customs must issue a decision, the decision must be protested, and the protest must be denied. See 19 U.S.C. §§ 1514 (stating that decisions of the Customs Service are final unless a protest is filed), 1515 9a (stating that all protests will be reviewed within two years of filing). The government argues that the relevant “decision” is Customs’ acceptance of the ex- porter’s payment. In support, the government points to a generic regulation suggesting that the date of exaction (the date of payment) constitutes a protesta- ble event. See 19 C.F.R. § 174.12(e) (1996) (“Protests shall be filed ... within 90 days after ... [t]he date of the decision, involving neither a liquidation nor reliquida- tion, as to which the protest is made (e.g., the date of an exaction. ...”)). According to the government, this regulation eliminates any confusion regarding the availability, timing or other procedures applicable to a protest and over 1000 HMT protests have been received by Customs pursuant to this regulation. Relying on legislative history, U.S. Shoe responds that Congress directed that the HMT be treated like a duty so that the Court of International Trade, with its expertise in international trade matters, would have jurisdiction over any disputes and so as to facili- tate Customs’ collection and processing of the HMT. See H. Rep. No. 99-228 at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 6705, 6714-15 (“In order to facilitate administration and collection of the port user charges li.e., the HMT] by the U.S. Customs Service, ... all administrative and enforcement provisions ... are to apply ... as if such charges were customs duties.”). Thus, according to U.S. Shoe, it is not clear that Con- gress intended for jurisdiction over this type of dispute to fall within a particular subsection of sec- tion 1581, and there is no evidence that Congress intended to amend the requirement of 19 U.S.C. § 1514 that there must be a Customs “decision” before filing a protest. US Shoe further argues that acceptance of 10a payment is not a protestable decision and that there- fore subsectim. (a) cannot apply. We find US Shoe’s arguments persuasive. Subsec- tion (a) is not directly applicable because it applies to suits commenced to contest the denial of a protest. Decisions of the Customs Service are final unless a protest is filed. 19 U.S.C. § 1514(a) (1994). Decisions can refer to, for example, “the classification and rate and amount of duties chargeable” or “all charges or exactions of whatever character within the jurisdic- tion of the Secretary of the Treasury.” Id. While the HMT is likely a charge or exaction, we do not believe that the actual payment or receipt of the HMT can be a “decision” of Customs, as Customs has not made any decision—it merely passively collects money in the amount required by the statute. Customs doesn’t even notify exporters of the need to pay the HMT; rather, the exporter pays all accumulated fees on a quarterly basis by simply mailing a check or money order to Customs along with appropriate forms. See 19 C. F. R. S 24.24(e)(2)(ii) (1996). Typically, “decisions” of Customs are substantive determinations involving the application of pertinent law and precedent to a set of facts, such as tariff clas- sification and applicable rate of duty. Indeed, prior case law indicates that Customs must engage in some sort of decision-making process in order for there to be a protestable decision. Thus, for example, in Dart Export Corp. v. United States, 43 C. C. P. A. 64 (1956), one of our predecessor courts held that Customs’ acceptance of estimated duties paid by an importer upon entry did not constitute a final, protestable deci- sion which would deprive the government of the right to liquidate the entry at a later date, because the payment was based entirely on information provided lla by the importer, rather than after analysis and adju- dication by Customs. Id. at 69-70, 74. Likewise, here, the HMT is based entirely on the exporter’s informa- tion and calculation. See 19 C. F. R. § 24.24(e)(2)(i) (1996). Specifically, this regulation provides that: {W]hen cargo is loaded on a commercial vessel for export at a port within the definition of this sec- tion, the exporter of that cargo (the name that ap- pears on the SED or equivalent document author- ized under 15 CFR 30.39(b)) is liable for the pay- ment of the port use fee at the time of loading. The fee is based upon the value of the shipment loaded as required to be indicated on the SED or equivalent documentation. Id. Thus, Customs merely passively collects pay- ments calculated by the exporters pursuant to stat- utes and regulations and performs no active role whatsoever. It performs no analysis; it issues no di- rectives or decisions; it imposes no liabilities. Similarly, in Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994), this court held that the Court of International Trade lacked jurisdic- tion over Mitsubishi’s complaint under section 1581(a) because the Customs Service did not make any anti- dumping “decisions” as Customs merely followed the Department of Commerce’s instructions in assessing and collecting specified duties. Id. at 977. The court pointed out that Customs’ role was merely ministe- rial and that Customs did not determine the rate or amount of the antidumping duties. Id. Commerce actually conducted the antidumping duty investiga- tion, calculated the antidumping duties, and issued the antidumping order; Customs merely collected the estimated duties. Jd. at 976. Likewise, here, there 12a was nothing for Customs to decide, because all sub- stantive particulars regarding the imposition and amount of HMT are established by Congress. The amount of the HMT (0.125 percent of the value of the commercial cargo) is set by statute, 26 U.S.C. § 4461, and the exporter performs the calculation, 19 C. F. R. § 24.24. Customs is merely collecting the HMT in the amount and manner specified by Congress. Thus, there is simply no decision that U.S. Shoe could have protested, or should have been required to protest, in order to allow the Court of International Trade to hear this dispute. Norfolk & W. Ry. v. United States, 843 F.Supp. 728 (Ct. Int’l Trade 1994), aff'd, 62 F.3d 1395 (Fed. Cir. 1995), relied on by the government, is not to the con- trary. There, a railroad company brought an action challenging user fees collected on vehicles and ves- sels entering the United States. Id. at 729. The rail- road company filed a user fee refund request with the Secretary of the Treasury on the grounds that its railroad barges were not ferries and that, as barges, they were subject to a cap on user fees. Id. at 730. The refund request was granted. However, several years later, Customs informed the railroad company that its barges were indeed ferries and not subject to the cap. Jd. The court concluded that the user fees were charges subject to protest and that jurisdiction fell under 1581(a). Jd. at 732-33 (“The user fees at issue in this case are clearly ‘charges’ within the meaning of § 1514(a) and, therefore, are subject to protest under this subsection.”). A careful reading of this case, however, makes clear that the user fees were protestable charges because there had been a specific decision by Customs applying statutory defi- nitions that certain vessels were ferries rather than 13a barges, thus subjecting the cargo to user fees. Id. at 730, 733. There, Customs was authorized to collect certain user fees on vehicles and vessels entering the United States. Id. at 729. The Railway transported railroad cars on barges into the United States from Canada. Id. The amount of fees due varied based on whether the barge was considered a ferry or not. The Railway was notified by Customs that it was required to pay a $7.50 user fee for each of the railroad cars, but no fees for its barges because Customs considered the barges to be ferries. Id. at 730. The Railway filed a protest of that decision. There is no comparable analysis and decision here. This is not a case where, for example, U.S. Shoe contended its exports fell within one of the HMT exemptions and Customs de- cided to the contrary. We therefore hold that because the collection of the HMT does not involve a protestable decision on the part of Customs, the trial court correctly concluded that jurisdiction over this dispute did not arise under 28 U.S.C. § 1581(a). In light of this holding, we need not reach U.S. Shoe’s additional arguments that any protest it might have filed would have been futile or manifestly inadequate. Given that the Court of International Trade did not possess jurisdiction under 28 U.S.C. § 1581(a), if it possessed jurisdiction over this dispute, as the gov- ernment concedes that it did, it can only have been pursuant to the default provision, 28 U.S.C. § 1581(i). The government argues subsection 1581(i) cannot apply because that subsection provides for jurisdic- tion in only those limited circumstances when juris- diction under any of the other subsections is unavail- l4a able or manifestly inadequate. However, this is no bar to jurisdiction here because jurisdiction under the other subsections, specifically subsection (a)—the only other arguable possibility—is unavailable. The government also argues that, by its own terms, sub- section 1581(i) applies only to imports, not to exports. We do not agree. As U.S. Shoe persuasively argues, the Court of International Trade properly exercised its jurisdiction under 28 U.S.C. § 1581(i). Congress expressly directed that for jurisdictional, administra- tive and enforcement purposes, the HMT was deemed to be a customs duty. Thus, it is beyond dispute that Congress intended the Court of International Trade to have jurisdiction over disputes regarding the HMT, as the Court of International Trade has exclu- sive jurisdiction over customs matters. Moreover, there is no argument made by either U.S. Shoe or the government that the Court of International Trade can exercise jurisdiction over this dispute pursuant to any statute other than 28 U.S.C. § 1581. As discussed above, subsection 1581(a) does not apply. The only other credible, and indeed the only other argued, possibility is subsection 1581(i). Admittedly, subsec- tion (i) does not specifically refer to disputes concern- ing the constitutionality of fees such as the HMT. It does, however, specifically refer to the “administra- tion and enforcement with respect to the matters referred to in” the preceding paragraphs, including any law providing for revenue from imports. This dispute does involve the “administration and enforce- ment” of a law providing for revenue from imports because the HMT statute, although applied to exports here, does apply equally to imports. Additionally, the mere fact that subsection 1581(i) does not speak pre- cisely to this issue and does not use the word 15a “exports” is not dispositive, as it was intended to give the Court of International Trade broad residual authority over civil actions arising out of federal statutes governing import transactions. Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1588 (Fed. Cir. 1994) (emphasis added). Thus, in light of the fact that the HMT is a law providing for revenue from imports (as well as exports) and the fact that subsection 1581(i) grants broad residual authority concerning import transac- tions to the Court of International Trade, the trial court properly asserted jurisdiction over this dispute pursuant to 28 U.S.C. § 1581(i). We must therefore consider whether the trial court correctly held that the HMT, as applied to exports, is unconstitutional.’ Il. The United States Constitution provides that: No Tax or Duty shall be laid on articles exported from any State. U.S. Const., Art. I, § 9, cl. 5. The Supreme Court recently analyzed the Export Clause in United States v. International Bus. Mach., — U.S. ——, 116 S.Ct. 1793 (1996). There, the Supreme Court held that the Export Clause does not permit “the imposition of a generally applicable, nondiscriminatory federal tax on goods in export transit.“ IBM, 116 S.Ct. at 1795. In other words, even those taxes that are imposed equally on exports and imports or other articles of commerce are prohibited by the Export Clause. See Id. at 1803. (“The better reading [of the Export We need not and do not address the constitutionality of the HMT statute as applied to anything except exports. l6a Clause], that adopted by our earlier cases, is that the Framers sought to alleviate their concerns by com- pletely denying to Congress the power to tax exports at all.”) (emphasis added). Thus, if the HMT is a tax on goods in export transit, it is invalid. We address first whether the HMT is a tax and second whether the HMT is imposed on goods in export transit. A. The HMT statute provides: (a) General rule.— There is hereby imposed a tax on any port use. (b) Amount of tar.— The amount of tar imposed by subsection (a) on any port use shall be an amount equal to 0.125 percent of the value of the commercial cargo involved. (e) Liability and time of imposition of tax.— (1) Liability—The tax imposed by sub- section (a) shall be paid by— (B) in the case of cargo to be exported from the United States, the exporter.... (2) Time of imposition.—Except as pro- vided by regulations, the tax imposed by subsection (a) shall be imposed— (A) in the case of cargo to be exported from the United States, at the time of loading. 17a 26 U.S.C. § 4461 (1994) (emphasis added). Thus, this statute, at least as it applies to exports, appears to be a prohibited tax on exports in that the tax is imposed based on the value of the exported goods and accrues at the time the goods are loaded on a ship for export. Although the legislative history refers to the HMT as a user fee, the statute itself repeatedly refers to the HMT as a tax and is codified in the Internal Revenue Code. The government, however, argues that the fact that the HMT is referred to as a tax is not dispositive and that the HMT is actually a user fee, not a tax. The test used to distinguish between taxes and user fees was first articulated in Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707 (1972), and more recently applied in Massachusetts v. United States, 435 U.S. 444 (1978). That test states that user fees are valid as such so long as they: (1) do not discriminate against the constitutionally pro- tected interest (here, exports); (2) are based on a fair approximation of use; and (3) are not excessive in relation to the cost to the government of the con- ferred benefits. See Massachusetts, 435 U.S. at 464. We need not decide whether the HMT discriminates against exports or is excessive in relation to the cost to the government of the conferred benefits. Instead, we discuss only whether the HMT is based on a fair approximation of use. US Shoe argues, and the trial court held, that the HMT is not a fair approximation of the cost of the benefits received by exporters because there is no correlation between the amount of HMT an exporter pays and the amount the exporter uses the port. In other words, the amount of the HMT has no relation- ship to the size or weight of the vessel or the neces- 18a sary depth of the port required by the vessel. For example, “[llow value bulk cargo importers and ex- porters use port facilities to a much greater extent than high value non-bulk cargo importers and export- ers.” U.S. Shoe, 907 F. Supp. at 415. Yet, even though the bulk cargo exporters generally require a larger vessel and a deeper port, and therefore “use” the port to a greater extent, they pay a lower tax than high value, low bulk cargo exporters. Moreover, a ship that docks but does not load or unload cargo is not required to pay a fee, even though that ship otherwise utilizes the port. Additionally, there is apparently no correlation between the amount of fees collected at a particular port and the expenditure of funds from the Trust Fund to maintain that particular port. Indeed the trial court found that “most large ports paying the majority of the costs receive no more than 30% back in maintenance expenditures.” Id. Finally, it is not consistent with a true user fee that so many users are exempted, such as those carrying bunker fuel, ship’s stores, equipment necessary for the opera- tion of the vessel and fish and other aquatic animal life not previously landed on shore, 26 U.S.C. §'4462(a) (1994), since ships carrying these products use the port facilities to the same extent as ships carrying products subject to the HMT. The government argues that the HMT is based on a fair approximation of use and, in support, relies on other cases in which similar ad valorem user fees have been upheld. The government first relies on United States v. Sperry Corp., 493 U.S. 52 (1989), where the Supreme Court held that a user fee of 1.5% of all awards recovered from the Iran-United States Claims Tribunal was not an unconstitutional taking but a valid user fee. There, Sperry had argued that 19a the fee could not be a user fee because it did not bear any relationship to the cost of the tribunal to the United States or the value of the tribunal to Sperry. Id. at 60. In rejeeting this argument, the Court stated that a user fee need not be “precisely cali- brated to the use that a party makes of government services” and need only be a “fair approximation.” Id. The Court also recognized that, where user fees are applied to a large number of parties, some users will be charged more and some less than in a perfect user-fee system. Id. at 61. Here, the government ar- gues that, as in Sperry, the fact that the benefits received do not exactly correspond to the amount of the HMT does not render the HMT statute unconsti- tutional. We do not find Sperry dispositive for two reasons. First, unlike the present case, in Sperry the person receiving the award and paying the fee was the direct beneficiary of the process for which they were paying. In other words, parties that had their claims adjudi- cated by the tribunal or otherwise received the bene- fit of the tribunal were required to pay the costs of establishing and maintaining the tribunal. Here, on the other hand, as applied to exports, the direct users—the ship owners—do not contribute to the maintenance of the port and it is only indirect users— the export companies—that are required to pay the HMT. Second, the Sperry Court, in distinguishing a case holding registration and axle taxes unconstitu- tional as a violation of the Commerce Clause, stated that the standard applied under the Just Compensa- tion Clause was less strict than that which would be applied in a Commerce Clause analysis where one is concerned about discrimination against interstate commerce. Id. at 61 n.7. To this we would add that, 20a per IBM, the Export Clause is still more restrictive. See IBM, 116 S. Ct. at 1799 (“Our decades-long strug- gle over the meaning of the nontextual negative command of the dormant Commerce Clause does not lead to the conclusion that our interpretation of the Export Clause is equally fluid. At one time, the Court may have thought that the dormant Commerce Clause required a strict ban on state taxation of interstate commerce, but the text did not require that view. The text of the Export Clause, on the other hand, expressly prohibits Congress from laying any tax or duty on exports.”) (footnote omitted). The government also relies on Alamo Rent- A Car v. Sarasota-Manatee Airport Auth., 906 F. 2. 516 (11th Cir.1990), where the Eleventh Circuit coneluc ed that an airport access fee enacted to provide funds to maintain the airport and based on a rental car com- pany’s gross business receipts was a valid user fee. Alamo argued the fee was not a fair approximation because it bore no relation to Alamo’s use of the air- port and instead varied in proportion to the revenue generated by Alamo’s customers. Id. at 520. Alamo argued that its only use of the airport was to drive on the airport roads to pick up customers and that its fee should be limited to a pro rata road use fee. Id. at 519. The court disagreed, reasoning as follows: Although imprecise in particular applications, the Authority’s decision to measure Alamo’s use of the airport facility by the gross receipts generated from Alamo’s airport customers is not irrational. The Authority could reasonably con- clude that the ten percent fee on average repre- sents Alamo’s use of the airport facility. It stands to reason that in general the more money 21a Alamo makes from airport passengers, the more trips Alamo has made to the airport. Id. at 520 (emphasis added). Thus, while imprecise, the fee was not unfair or irrational, but was instead a “fair approximation.” Again, the payer of the fee in Alamo was the direct beneficiary of the use of the airport, unlike here where the exporter is not the direct beneficiary and is not assured harbor mainte- nance at the harbor where the exporter’s goods are loaded. Moreover, in rejecting Alamo’s argument that the fee was unreasonable because it was required to pay a greater fee for a person who rented a car for seven days than for a person who only rented a car for one day even though each individual made equal use of the airport, there the court found that the 10% fee was acceptable because it represented, on average, Alamo’s use of the airport. Jd. Here, there is no such finding that the HMT represents, on average, an ex- porter’s use of the port and, as discussed above, the court concluded that the HMT was not based on a fair approximation of use, thereby implicitly finding that the HMT did not represent, on average, an exporter’s use of the port. The government also argues, without providing any support, that by using the words “fair approximation of use” the Supreme Court in Massachusetts intended to refer to the value of the benefits received, rather than the costs of the benefits received. The govern- ment then asserts that the HMT is a fair approxima- tion of the value of the benefits received because the profitability of higher value cargo is higher than for lower value cargo. We do not agree. First, the Mas- sachusetts case itself suggests that the cost of the benefits, rather than the value, is the appropriate 22a measure in its statements that “Congress believed that four measures, taken together, would fairly reflect some of the cost of the benefits” and “the pres- ent scheme nevertheless is a fair approximation of the costs of the benefits each aircraft receives.” 435 U.S. at 468 (emphasis added). Second, higher value mer- chandise does not always correlate to a higher profit margin and the government has failed to present any facts that would suggest that, even on average, this is the case. Thus, exporters of higher value goods do not necessarily receive a greater benefit, even in terms of value, than exporters of lower value goods. Third, the exporters are forced to pay for harbor maintenance across the entire country, even though they receive no benefit from maintained harbors at any port other than the one they actually use. Fourth, the HMT does not pay for services, such as police, fire or rescue units, that provide benefits to the exporters by keeping the harbors safe whether the exporters use those services or not. See Maine v. Department of Navy, 973 F.2d 1007, 1014 (Ist Cir. 1992) (refusing to grant summary judgment that fee used to pay for a hazardous waste spill response team was not based on a fair approximation of use because, even though the Navy had not yet needed the team, it was available to minimize any future spill at the shipyard).’ Therefore, even if the value of the benefits received is an accurate measure, we hold that the HMT is not a fair approximation of the value of the benefits received by the exporters. 4 Notably, in this case the appellate court rejected the Navy’s argument that the measure of the authorized fee for services is the value to the recipient. See Maine, 973 F.2d at 1014. 23a We therefore hold that the HMT is not based on a fair approximation of use and, as such, is not a permis- sible user fee. Although the decision to impose the HMT on an ad valorem basis may have substantially reduced administrative costs and burdens, it is never- theless not based on a fair approximation of use. Since the HMT is not a valid user fee, it must be a tax. The government also argues the HMT is not levied against exported articles and, therefore, even if it is a tax, it is not unconstitutional. Rather, according to the government, the fee is imposed on the use of federally maintained harbors by shippers,’ exporters“ and importers’ of commercial cargo, regardless of destination, and is even imposed on the transportation of passengers. Thus, according to the government, the HMT is “an ordinary burden of taxation” rather than a tax or duty imposed on “exported articles.” We do not agree. The Constitution prohibits taxa- tion of articles in the course of being exported. See A.G. Spalding & Bros. v. Edwards, 262 U.S. 66, 69 (1923) (“The fact that the law under which the tax was imposed was a general law touching all sales of the 5 Shippers, i.e., the persons or corporations that pay the freight, are responsible for paying the HMT on commer- cial shipments within the United States. See 19 C.F.R. § 24.24(e)(1)(i) (1996). Exporters, i.e., the persons or corporations whose name appears on the SED document or the equivalent document, are — for the HMT on exports. See 19 C. F. R. § 24.24(e)(2)(i) 1996). Ilmporters are liable for the HMT on imports. See 19 C. F. R. S 24.24(e)(3)(i) (1996). 24a class, and not aimed specially at exports, would not help the defendant if in this case the tax was ‘laid on articles exported from any State,’ because that is forbidden in terms by the Constitution.”). Thus, while a tax may be constitutional if imposed on goods during the manufacturing process, even if they are intended for later export, a tax is not constitutional if imposed on those very same goods after they are loaded on a vessel for export or if imposed when delivered to the carrier for export. See id. (holding unconstitutional a tax on baseball bats and balls imposed on “(t]he very act that passed the title and that would have incurred the tax had the transaction been domestic, [and that] committed the goods to the carrier that was to take them across the sea, for the purpose of export and with the direction to the foreign port upon the goods.). Here, the HMT is imposed on an ad valorem basis at the time the exported goods are loaded on the vessel, rather than at some prior point in time when the goods are not yet bound for export. The exporter, rather than the manufacturer, pays the tax. In the absence of the export act of load- ing the goods, and in the absence of the exporter’s documents required for that act, the HMT would not be owed and no amount could be determined because the HMT is incurred at the time of loading, 26 U.S.C. § 4461(c)(2)(A), and is based on the value of the goods as determined by the standard commercial export documentation, 26 U.S.C. § 4462(a)(5)(A). See also 19 C.F.R. § 24.24(e)(2\i) (“The fee is based upon the value of the shipment loaded as required to be indi- cated on the SED or equivalent documentation.”). Thus, we conclude that the HMT, as applied against U.S. Shoe, is imposed on exports. 25a C. The government makes several additional argu- ments in support of the constitutionality of the HMT. First, the government argues that the Export Clause is distinct from the Commerce Clause and, conse- quently, Congress may impose a tax or duty pursuant to its authority to regulate commerce, so long as the purpose of the tax or duty is not to raise revenue for the general welfare. See Armour Packing Co. v. United States, 209 U.S. 56, 79 (1908) (“But it is to be observed that the Constitution provides for a burden only by the way of taxation or duty, and, unless the alleged interference amounts to such taxation or duty, it does not come within the constitutional pro- hibition.”). Thus, according to the government, the relevant inquiry is whether the HMT was enacted pursuant to Congress’ authority to regulate com- merce, not whether it imposes a burden on exports. See New Orleans Steamship Ass’n v. Plaquemines Port, Harbor and Terminal Dist., 874 F.2d 1018, 1021-22 (5th Cir. 1989) (holding that a port could impose reasonable fees against ships to finance emer- gency response services). Second, the government argues that the trial court adopted an overly broad interpretation of the Export Clause because it failed to recognize that the sole purpose of the Export Clause was to prevent the northern states from crip- pling the export-dependent southern states—not to restrict Congress’ authority to impose nondiscrimi- natory fees designed to recoup costs. We do not agree. The Supreme Court recently reaf- firmed the breadth of the Export Clause in the face of the argument that its historical purpose justified a narrow construction. IBM, 116 S.Ct. at 1803 (“While 26a the original impetus may have had a narrow focus, the remedial provision that ultimately became the Export Clause does not, and there is substantial evidence from the Debates that proponents of the Clause fully intended the breadth of scope that is evident in the language.”). Moreover, the power to regulate com- merce cannot completely override the effect of the Export Clause. See North Am. Co. v. SEC, 327 U.S. 686, 704-05 (1946) (“This is not to say, of course, that Congress is an absolute sovereign. It is limited by express provisions in other parts of the Constitution, such as section 9 of Article 1 and the Bill of Rights.”); see also IBM, 116 S.Ct. at 1798 (rejecting govern- ment’s request to “reinterpret the Export Clause to permit the imposition of generally applicable, nondis- criminatory taxes as [the Court has] under the Commerce Clause. . . ). It is undeniable that Con- gress may regulate commerce by means such as en- couraging or discouraging certain actions using regulatory charges to achieve compliance. See South Carolina v. Block, 717 F.2d 874, 887 (4th Cir. 1983) (imposition of a 50-cent deduction on proceeds of all milk sold commercially is constitutional where It jhe clear language and structure of the [statute] indi- cates that its primary purpose is regulation” and the “purpose is to reduce overproduction of milk and shift some of the financial burden of the price support system.”). Likewise, it is beyond dispute that Con- gress may raise money to recover the expenses of a regulatory program. See, e.g., New Orleans, 874 F.2d at 1021-22 (“[Cjourts have consistently held that ships may be made to pay for services they get.”). It is, however, also beyond dispute that Congress cannot merely impose a direct economic burden on merchandise for export in the absence of regulation. 27a See IBM, 116 S. Ct. at 1798-99 (rejecting the govern- ment’s argument that the Commerce, Import-Export and Export Clauses should be read in harmony to permit the imposition of generally applicable, nondis- criminatory taxes on exports). That is the case here. The government has failed to point to any indication that the HMT is intended to regulate commerce. Indeed, it appears that the HMT regulates nothing. It is not designed to reduce the overall use of the ports. See Block, 717 F.2d at 887. Rather, the HMT merely increases the cost of exporting by raising money to maintain the harbors in a manner that is not reasona- bly connected to the exporter’s use of the harbors, and is therefore unconstitutional. Additionally, the gov- ernment has not persuaded us that the HMT is de- signed to simply recoup the costs of the services, e.g., port maintenance, provided by the government be- cause the sums paid by the exporter have no reason- able relationship to the cost or the value of the serv- ices received by the exporters, and the exporters are not even the direct beneficiaries of the services. Moreover, the mere fact that Congress may have at- tempted to exert its power under the Commerce Clause, as opposed to the Tax Clause, as evidenced by the fact that the HMT is not designed to raise money for the general welfare, is not dispositive. See Moon v. Freeman, 379 F.2d 382, 390-91 (9th Cir. 1967) (stat- ing that the “test for determining when a monetary imposition nominally imposed under the commerce power should be considered an exercise of the power to raise revenue and therefore [be] barred by the export clause” is “to view the objects and purposes of the statute as a whole and if from such examination it is concluded that revenue is the primary purpose and regulation merely incidental, the imposition is a tax 28a and is controlled by the taxing provisions of the Constitution.”). The HMT, in fact, does not regulate or facilitate commerce and is, in effect, a tax. There- fore, as to exporters at least, the HMT is not an appropriate use of Congress’ power to facilitate and regulate commerce. New Orleans is distinguishable because there the fees were not assessed based on the value of the goods but were based on the benefit of services such as pilotage, towage and wharfage as measured by the size or weight of a vessel and paid by those benefiting from the service. 874 F.2d at 1020 (fees based on the number of days in port, the length of the vessel, and whether the ships load or unload cargo). Thus, the fees were based on the services received during port use. Clyde Mallory Lines v. Alabama, 296 U.S. 261 (1935), also relied on by the government, is similarly distinguishable. There, the State Docks Commission, a state agency, imposed a fee on all vessels of a cer- tain size that entered the port and vessel operators alleged that the fee violated the constitutional provi- sion prohibiting imposition of duties of tonnage by states. Id. at 262-63. The fee was designed to reim- burse the agency for the costs of policing the harbor. Id. at 264. There, however, the parties agreed that the fee was reasonable. Id. at 263. Here, the parties have not reached any such agreement, and, as we con- clude above, the fee is not reasonable. Moreover, there the vessel operators—the direct beneficiaries of the agency’s policing actions—paid the fee. Id. Further- more, all such operators received the benefits for which they paid. Id. at 266 (“It is not any the less a service beneficial to appellant because its vessels have not been given any special assistance. The bene- fits which flow from the enforcement of regulations, 29a such as the present, to protect and facilitate traffic in a busy harbor inure to all who enter it.”). Finally, the statute at question in that case also had a regulatory effect “plainly devised to insure the safety of vessels and to facilitate their use of the harbor.” Id. at 264. Here, there is no such effect. The HMT does not ensure vessel safety, but was designed to cover the costs of dredging the harbors. See S. Rep. No. 99-126 at 9 (1986), reprinted in 1986 U.S.C.C.A.N. 6639, 6647. Finally, certain of the amici, given leave to file briefs here, argue that, because the HMT is unconsti- tutional and therefore void ab initio, all monies collected since the implementation of the HMT should be refunded. As US Shoe does not seek such recov- ery, there is no need for us to reach this issue. Similarly, we do not reach the issue of whether the HMT violates the Port Preference Clause because it is not necessary to our disposition of this appeal. CONCLUSION We conclude that the trial court properly exercised jurisdiction pursuant to 28 U.S.C. § 1581(i). Because Customs merely receives the funds from the export- ers and transfers the funds to the Trust Fund with- out exercising any discretion, performing any analy- sis, calculating any amounts or issuing any decision or order, there was no Customs’ “decision” for US Shoe to protest, and jurisdiction therefore could not be proper under 28 U.S.C. § 1581(a). Moreover, be- the HMT is a tax, as opposed to a user fee, di- rectly imposed on goods in export transit, we con- clude that the HMT statute, as applied to exports, i the Export Clause and is therefore invalid to the extent it applies to exports. Therefore, the trial court properly (1) granted summary judgment that 30a the HMT statute was unconstitutional, (2) enjoined the government from collecting further HMT on ex- ports, and (3) ordered it to refund the HMT amounts paid by U.S. Shoe for the period assessed in the complaint. Accordingly, the judgment of the Court of International Trade is AFFIRMED. 3la UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 96-1210 UNITED STATES SHOE CORPORATION, PLAINTIFF-APPELLEE . THE UNITED STATES, DEFENDANT-APPELLANT MAYER, Circuit Judge, dissenting. Because in my view the Harbor Maintenance Tax (HMT) is a user fee, it does not violate the Export Clause of the Constitution. Statutes are presumed constitutional. Fairbank v. United States, 181 U.S. 283 (1901). We must “not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Indeed, courts must strive to avoid constitutional questions. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01 (1979) (courts are required to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue); Hooper v. California, 155 U.S. 648, 657 (1895) (courts must resort to “every reasonable construction .. . in order to save a statute from unconstitutionality”). Thus, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, 32a the Court will construe the statute to avoid such problems unless such construction is plainly con- trary to the intent of Congress.” DeBartolo, 485 U.S. at 575. In light of these mandates, the question is whether the HMT is a tax or duty within the proscription of the Export Clause or whether it is a permissible user fee. Generally, a tax is enacted to raise revenue “to go to the general support of the government,” see Head Money Cases, 112 U.S. 580, 596 (1884), while a user fee is designed as a specific charge for the use of government facilities and services, see Common- wealth Edison Co. v. Montana, 453 U.S. 609, 621 (1981). If it is the latter, we avoid the sticky question whether the assessment violates the Export Clause. So, we must construe the HMT as a user fee, if rea- sonable to do so, unless it is “plainly contrary to the intent of Congress.” DeBartolo, 485 U.S. at 575. Congress thought it was enacting a user fee. It is true that the statute calls the HMT a tax and that it resides in the Internal Revenue Code. It is equally true, however, that the HMT is levied on “port use.” The label is not dispositive; we must dig deeper. See Head Money Cases, 112 U.S. at 595-96 (The act is not void because, within a loose and more extended sense than was used in the Constitution, it is called a tax.”); Pace v. Burgess, 92 U.S. 372, 375 (1875); see also Fairbank, 181 U.S. at 304 (courts analyze things, not names). “In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.” See Crandon v. United States, 494 U.S. 152, 158 (1990). The object and policy of the HMT help to reveal its true identity. The Senate Report 33a states: “The taxes and fees in this legislation are not for the purpose of raising revenue. Rather, they are to repay costs related directly to the servicing of commerce. These fees and taxes offset services ren- dered to vessels. The provision of a new, deeper chan- nel is as much a service rendered to the shipper as pilotage, dockage, or wharfage.“ S. Rep. No. 99-126, at 7 (1985), reprinted in 1986 U.S.C.C.A.N. 6639, 6644. The House Report similarly states that the HMT is “a charge on use by a commercial vessel of a harbor or channel (‘port’) in the United States for the loading or unloading of commercial cargo on or from the vessel.” H.R. Rep. No. 99-228, at 1 (1986), reprinted in 1986 U.S. C. C. A. N. 6705, 6706 (emphasis added). In fact, the legislative history refers repeatedly to the HMT as being based on use. See, e.g., id. at 1, reprinted in 1986 U.S.C.C.A.N. at 6706 (“Harbor (Port) User Charges”); H.R. Conf. Rep. No. 99-1013, at 228 (1986), reprinted in 1986 U.S. C. C. A. N. 6723, 6740 (“Port Use Tax”); S. Rep. No. 99-126, at 2, reprinted in 1986 U.S.C.C.A.N. at 6640 (“user taxes”); id. at 135, reprinted in 1986 U.S.C.C.A.N. at 6705 (additional views of Sen. Lautenberg) (“user fee”). Moreover, the HMT was enacted as part of the Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082 (Act), “comprehensive” leg- islation that addressed myriad problems in the federal water resources development program. See S. Rep. No. 99-126, at 3, reprinted in 1986 U.S.C.C.A.N. at 6641. “Historically, the Federal Government hald] fi- nanced the full cost of designing, constructing, Charges for harbor services like pilotage, wharfage, and dockage are permissible. See generally Clyde Mallory Lines v. Alabama, 296 U.S. 261 (1935). 34a rehabilitating, maintaining, and operating the coastal harbors of the United States.“ Id. at 6, reprinted in 1986 U.S.C.C.A.N. at 6643-44. Yet, the law did not “impose Federal user fees or charges on the beneficiaries of these expenditures.” H.R. Rep. No. 99-228, at 5, reprinted in 1986 U.S.C.C.A.N. at 6709. Congress found that traditional harbor mainte- nance policy would “not meet national needs” because it was “unlikely that the Federal Government [would] finance the construction of such port improve- ments.” S. Rep. No. 99-126, at 8, reprinted in 1986 U.S.C.C.A.N. at 6646. As the House Report explains: Additional Federal investment is needed for opera- tions and maintenance of U.S. channels and harbors (ports) in order to improve and maintain such ports for waterborne commerce. Such additional invest- ment in U.S. ports will facilitate economic develop- ment and make the Nation’s water transportation system more efficient.” H.R. Rep. No. 99-228, at 5, reprinted in 1986 U.S.C.C.A.N. at 6709. Importantly, Congress found that these needs were “clearly commercial.” S. Rep. No. 99-126, at 6, reprinted in 1986 U.S.C.C.A.N. at 6644 (emphasis added). It decided “that a portion of Federal expendi- tures needed for port operations and maintenance should be borne by the direct beneficiaries of such expenditures,” commercial users. H.R. Rep. No. 99-228, at 5, reprinted in 1986 U.S. C. C. A. N. at 6709 (emphasis added). Congress targeted commercial users to help shoulder the fiscal burden of operations and maintenance costs for harbors and inland water- ways because they are the parties who enjoy their benefits. The government “has an obvious interest in making those who specifically benefit from its serv- 35a ices pay the cost.” Massachusetts v. United States, 435 U.S. 444, 462 (1978). One of Congress’ primary difficulties, however, was deciding how to craft a user fee to “help defray the costs of maintaining new harbors deeper than 45 feet.“ S. Rep. No. 99-126, at 10, reprinted in 1986 U.S.C.C.A.N. at 6647. “In recent years, the Commit- tee considered a variety of proposals involving harbor maintenance. These ranged from diverting a portion of customs revenues for harbor work to port-by-port maintenance fees to more studies. The debate in some cases is between high maintenance harbors and low maintenance harbors; in others it is between large ports and small ports; or between bulk cargo and containerized cargo ports.” Jd. at 9, reprinted in 1986 U.S.C.C.A.N. at 6646. In fact, the Senate Sub- committee on Water Resources held twenty-six hearings over three Congresses and more than four years on the Act. Id. at 116, reprinted in 1986 U.S.C.C.A.N. at 6688. Ultimately, it opted to impose a nationally-uniform fee on the “value of the cargo passing through harbors.” Id. at 9, reprinted in 1986 U.S.C.C.A.N. at 6646; see also id. at 111-12, reprinted in 1986 U.S.C.C.A.N. at 6684. The House Report ex- plains that “the ad valorem basis of the charges is 2 Very few bays and estuaries have natural depths greater than 20 feet. S. Rep. No. 99-126, at 7, reprinted in 1986 U.S.C.C.A.N. at 6645. Yet the size of vessels has so increased that harbors forty-five feet deep are now “inadequate for many fully loaded tankers.” Id. at 8, reprinted in 1986 U.S. C. C. A. N. at 6645. Congress found that the constraints of these shallow harbors “add to the costs of importing crude oil and petroleum products,” and that “[djeeper draft harbors would facilitate the export of U.S. coal and, eventually, other bulk commodities, such as grain and ores.” /d. 36a the only acceptable basis on which to impose such charges. This national, uniform basis minimizes any possible competitive disadvantages among cargo types and U.S. ports which otherwise might result from user charges.” H.R. Rep. No. 99-228, at 5-6, reprinted in 1986 U.S.C.C.A.N. at 6710. Critically, Congress mandated that fees collected from the HMT be used only for commercial navigation projects.’ Monies in the Harbor Maintenance Trust Fund (HMTF) may be used only to pay (1) for the operations and maintenance costs of the United States portion of the St. Lawrence Seaway, and for the eligible operations and maintenance costs “as- signed to commercial navigation of all harbors and inland harbors within the United States,” 33 U.S.C. § 2238(a) (1994) (emphasis added), referenced in 26 U.S.C. § 9505(c)(1) (1994); and (2) for all of the ex- penses of administering the HMT incurred by the Departments of Treasury and Commerce and the U.S. Army Corps of Engineers, up to $5,000,000 per fiscal year, 26 U.S.C. § 9505(c)(3).4 So, HMT charges, col- lected from commercial users, may only be expended for harbor operations and maintenance costs incurred on their behalf. The government has been true to this constraint. In its initial report to Congress on the HMTF’s Interest earned on monies in the Harbor Maintenance Trust Fund (HMTF) also remains in the fund. 4 26 U.S.C. § 9505(c)(2) permits monies in the fund to be used to pay rebates of tolls or charges levied for use of the St. Lawrence Seaway, as required by 33 U.S.C. § 988a. Section 988a was amended in 1994, however, to waive the collection of tolls or charges on commercia! vessels, instead of requiring commercial users to pay the toll or charge and then obtain a rebate. Pub. L. No. 103-331, § 339a), 108 Stat. 2496. 37a status, the government explained that operations and maintenance costs for commercial navigation were accounted for in the “Corps of Engineers Manage- ment Information System.” First Annual Report to Congress on the Status of the Harbor Maintenance Trust Fund for Fiscal Years 1987—1992 at 2, 1 6 {hereinafter First Report). In deciding which expen- ditures were reimbursable, the government recog- nized that some projects have both a “commercial navigation” purpose and some other purpose, such as recreation, hydropower, or flood control. Id. at 3, J 7. All operations and maintenance expenditures made for single purpose commercial navigation projects were considered subject to reimbursement from the HMTF. Id. In contrast, on joint purpose projects, the government allocated costs to the project’s different purposes in proportion to the benefits realized for each purpose, recovering only the commercial naviga- tion costs. Id.; see also Second Annual Report to Congress on the Status of the Harbor Maintenance Trust Fund for Fiscal Year 1993 at 1-2, J 4 (indicat- ing continued compliance) [hereinafter Second Re- port]. This ensures that HMT funds collected from commercial users are spent for their benefit. In sum, it surely does not violate Congress’ intent to construe the HMT as a user fee. The question is whether it is reasonable to interpret it that way. In analyzing whether a particular charge constitutes a user fee, the Court has asked whether it: (1) discrimi- nates against the constitutionally-protected interest; (2) is based on some fair approximation of the use of some system; and (3) is structured to produce revenue fairly apportioned to the total cost to the government of the benefits conferred. Massachusetts, 435 U.S. at 38a 464; Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707, 716-17 (1972). First, the HMT does not discriminate against ex- porters. Indeed, the trial court did not hold to the contrary; it simply bypassed the issue and ruled the HMT a tax based on the second and third prongs of the Massachusetts test. The HMT is levied against commercial users of United States ports and harbors, including exporters, importers, domestic shippers, and passenger carriers (except ferries, as defined). Congress found these groups to be the principal beneficiaries of harbor operations and maintenance projects. It also required that HMT monies be ex- pended only for their benefit. That the statute ex- empts some harbor users from payment does not render the HMT discriminatory against exporters. Some exempted users, like recreational users, do not and would not benefit from operations and mainte- nance projects funded by the HMT use those projects are commercial in nature. Requiring such users to pay the fee would be unfair. Congress made reasonable policy decisions to exempt other users, such as nonprofit organizations transporting humani- tarian and development assistance cargo. 26 U.S.C. § 4462(h); see also id. § 4462(b) (exempting cargo transported within Alaska, Hawaii, or any United States possession, or between those locales and the United States mainland “because of the high depend- ence of these islands’ economies on waterborne com- merce.” H.R. Rep. No. 99-228, at 6, reprinted in 1986 U.S.C.C.A.N. at 6710). These exemptions do not com- promise the HMT’s non-discriminatory status. Second, the HMT is based on a fair, if imperfect, approximation of exporters’ use of, or privilege to use, United States harbors and ports. When the govern- 39a ment “applies user charges to a large number of parties, it probably will charge a user more or less than it would under a perfect user-fee system.” United States v. Sperry Corp., 493 U.S. 52, 61 (1989). “Perfect uniformity and perfect equality of taxation, in all the respects in which the human mind can view it, is a baseless dream.” Head Money Cases, 112 U.S. at 595. Consequently, the amount of a user fee need not be “precisely calibrated to the use that a party makes of Government services.” Sperry, 493 U.S. at 60. The government concedes that the HMT, like most user fees, is imperfect, but contends that it is a fair approximation of use. U.S. Shoe argues, and the court held, that this is wrong for four primary rea- sons: (1) all harbor users do not pay the fee, (2) there is no correlation between the charges collected at a particular port and expenditures for that port’s main- tenance and operations, (3) low-value, bulk cargo im- porters and exporters use the port facilities to a greater extent than high-value, non-bulk cargo im- porters and exporters yet pay lower fees, and (4) the ad valorem nature of the fee does not accurately measure use. The first three, of course, are the pre- cise concerns with which the legislature wrestled over three Congresses and more than four years. The fourth challenge is to what Congress found to be “the only acceptable basis on which to impose such charges” because it was “uniform” and “minimizes any possible competitive disadvantages among cargo types and U.S. ports which otherwise might result from user charges.” H.R. Rep. No. 99-228, at 5-6, reprinted in 1986 U.S.C.C.A.N. at 6710. “This was obviously the judgment of Congress and we [should] 40a abide by it.” Sperry, 493 U.S. at 62, 110 S.Ct. at 395. Notwithstanding, I address each issue in turn. For the same reasons that the HMT is not dis- criminatory, the fact that all users of our harbors and ports do not pay the fee does not mean it is an unfair approximation of use by those against whom the assessment is levied. See Evansville, 405 U.S. at 717-18 (upholding a user fee as a fair approximation of the use of the facilities for whose benefit they are imposed even though “a majority of the actual number of persons who use facilities of the airports involved” were exempt, because the exemptions were not “wholly unreasonable”). Nor is there merit to U.S. Shoe’s second argument that because fees collected at a particular port are not necessarily expended for operations and maintenance at that port, the fee is not a fair measure of use. This is an overly narrow view. Users do not benefit only from access to the particu- lar ports they use. Every exporter has all ports and harbors available to it. Those that never use certain ports benefit from them “in the sense that [they] are available for their use if needed and in that” the provi- sion of better harbor maintenance services “makes the [ports] safer for all users.” Massachusetts, 435 U.S. at 468; see also Sperry, 493 U.S. at 63. Finally, U.S. Shoe’s related third and fourth argu- ments do not establish that the HMT is not a fair approximation of use. Initially, there is great irony in the argument that the charge is unfair because high-value, non-bulk cargo carriers are assessed higher fees than low-value, bulk cargo shippers, yet allegedly “use” harbors to a lesser extent. Exporters generally ship low-value cargo, such as grain and coal, which is transported in bulk. See First Report at 3,4 9. Importers, on the other hand, tend to ship 4la high-value cargo, like electronics and automobiles, which is not shipped in bulk. Id. Consequently, ex- porters are generally assessed lower fees than im- porters, yet they purportedly “use” the harbors to a greater extent because of the bulk nature of their shipments. Thus, it is the exporters themselves who allegedly are not bearing their fair share. In addition to the irony, U.S. Shoe’s argument is unpersuasive. First, not all bulk cargo is of low value, nor, undoubtedly, is all non-bulk cargo of high value. For example, some “high value” commodities, such as “petroleum,” are transported in bulk. Jd. Thus, to say that the HMT is unfair because low-value cargo carriers use ports to a greater extent than high-value cargo carriers is not wholly accurate. Second, even if a high-value cargo shipper never requires the use of harbors deeper than forty-five feet, there is nothing in the record to support the notion that the only operations and maintenance projects undertaken with HMTF monies are deep-harbor dredging. Indeed, U.S. Shoe does not argue that projects financed with HMTF monies are so limited. While projects are limited to those that inure to the benefit of commer- cial users, the government has discretion to decide which projects those are. That some users, like ex- porters, transport some bulk products of lower value than some non-bulk products transported by other users, does not make the HMT a tax. Nor does its ad valorem structure. It is beyond dispute that an ad valorem charge can be a user fee. See Sperry, 493 U.S. at 59-64; Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516 (11th Cir. 1990); see also Alamo Rent-A-Car, Inc. v. City of Palm Springs, 955 F. 2d 30 (9th Cir. 1992). Notwithstanding, U.S. Shoe attempts 42a to distinguish Sperry and Alamo on the ground that the parties assessed the user fees in those cases were direct beneficiaries of the provided services. Here, it argues, the direct beneficiaries are the vessel owners, not the importers and exporters who pay the fee. There are two problems with this argument. First, it flies in the face of Congress’ finding that exporters are the direct beneficiaries. Congress decided that a portion of federal expenditures needed for port opera- tions and maintenance should be borne by the direct beneficiaries of such expenditures, among whom it obviously included exporters and importers. Second, the Court rejected a similar argument in Evansville. There, it held that it is not “particularly important whether the charge is imposed on the passenger him- self, to be collected by the airline, or on the airline, to be passed on to the passenger if it chooses.” 405 U.S. at 714. Similarly, here it is unimportant whether the fee be assessed against exporters and importers, the ultimate beneficiaries of the harbor maintenance and operations projects, or against the actual vessel owner, to be passed on to the importers or exporters if it chooses. Finally, the HMT is structured to produce revenue fairly apportioned to the total cost to the government of the benefits conferred. The relevant inquiry is whether Congress structured the HMT so that the monies collected under it are “fairly apportioned” to the government's cost of providing commercial harbor maintenance services. U.S. Shoe argues, and the trial court held, that the HMT fails this prong for two primary reasons: (1) it funds projects yet to be com- menced rather than reimbursing the government for completed projects, and (2) the HMTF has accumu- 43a lated a large surplus. The first objection is mis- placed; the second, while troubling, is unavailing. Regardless of the factual accuracy of U.S. Shoe’s first concern,’ when viewed in light of the purposes for which the HMT was enacted, it is of little rele- vance that HMT monies might fund port operations and maintenance projects not completed, or even initiated, at the time of collection. The HMT is not a short-term fix to the myriad problems that plague our nation’s waterborne commerce. It is a long-term ve hicle to improve and to maintain the harbors for the continuing benefit of United States commerce. In- deed, Congress expressly found that the fee will facilitate economic development. A] surplus of reve- nue over outlays in any one year can be offset against actual deficits of past years and perhaps against projected deficits of future years.” Massachusetts, 435 U.S. at 470 n. 25 (emphasis added). The Eleventh Circuit has also recognized that user fees may be expended on future projects. In Alamo, it held that “given the long term nature of maintaining and developing an airport, it was appropriate. to factor in future development plans when setting user fees.” 906 F.2d at 522. Thus, it is of little moment that HMT monies are purportedly expended to fund projects not 5 The First Report states that “the actual transfer of funds from the [HMTF) is for expenditures made in the previ- ous fiseal year. In other words, FY 1990 expenditures are shown as transfers from the [HMTF] in FY 1991, and so forth. Corps expenditures are never made directly from the [Hur nor are transfers made on the basis of estimates or projections.” First Report at 3. J 7. This indicates that FY 19xx projects are reimbursed from the HMTF with FY 19xx, or perhaps surplus, funds in FY 19xx+1. 44a yet started rather than to repay the government for services that have already been rendered. Similarly, the fact that the HMTF enjoys, or per- haps suffers, a large surplus does not resolve whether Congress structured the HMT as a tax or a user fee. To be sure, the substantial surplus weighs against finding the HMT a user fee. But this does not, of itself, render it a tax. A closer look reveals that the HMT’s structure was not ill-conceived. From 1987 through 1990, during which the HMT was only 0.04% ad valorem and paid just 40% of eligible Corps costs, revenues and expenditures were closely aligned. See First Report at 6, J 13. For example, in FY 1988, HMTF expenditures actually exceeded revenues by approximately $6 million, and the ending balance was just $9 million. Id. Trouble began in 1991, when Congress increased the ad valorem rate to 0.125% in order to fund 100% of eligible Corps expenses and to reimburse the National Oceanic and Atmospheric Administration (NOAA) $45.5 million for its annual commercial navigation costs. While the revenue generated under the higher rate was only slightly less than projected, expenditures were considerably less, resulting in a growing HMTF surplus. Withdrawals from the HMTF were less than anticipated due primarily to (1) the absence of legislation authorizing NOAA to receive its commercial navigation costs, (2) the fact that the Corps’ operations and maintenance budget was lower than had been projected in 1990 when the new ad valorem rate was established, and (3) with- drawals from the HMTF for improved administration and enforcement, while authorized, remained unappro- priated. See, e.g., Second Report at 5, J 10. 45a The surplus has certainly burgeoned in recent years as a result of these unforeseen decreases in projected expenditures, but that does not mean that the HMT’s structure shows it to be a tax. Congress is not prescient. In fact, the government recognizes that this is a problem about which something must be done. See Third Annual Report to Congress on the Status of the Harbor Maintenance Trust Fund for Fiscal Year 1994 at 7,4 16 (“The growing surplus in the HMTF remains. This can only be corrected by widening the authorized uses for HMTF monies, or by reducing the HMF [sic] to a level consistent with its annual expenditures.”). Congress has already amended the HMT statute once. There is no reason to believe that it will not correct the growing surplus. Until then, commercial users know that all HMT monies plus interest may only be expended for harbor operations and maintenance projects with commercial purposes. They may not be used for the general sup- port of the government. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 371-72 (1994) (declin- ing to decide whether an airport user fee, which had accumulated “huge surpluses,” was excessive under Evansville, in part because all fees collected had to be expended for the airport’s capital or operating costs, and the airlines challenging the fee had not suggested that the surplus was being used for any purpose other than airport-related expenses); Head Money Cases, 112 U.S. at 596 (charges imposed on shipowners for each immigrant they brought into the United States, which were deposited into an “immigrant fund” appro- priated in advance for the temporary care of passen- gers whom shipowners transported, was not a tax). I would reverse the judgment of the Court of Inter- national Trade. 46a APPENDIX B UNITED STATES COURT OF INTERNATIONAL TRADE Slip Op. 95-173 Court No. 94-11-00668 UNITED STATES SHOE CORP., PLAINTIFF *. UNITED STATES, DEFENDANT [Oet. 25, 1995] OPINION Before: DiCaRLo, Chief Judge and RESTANI and MUSGRAVE, JJ. DiCaRLo, Chief Judge: i — I, 1 9, Clause 5 of the United States onstitution (the “Export Clause”) provides Tax or Duty shall be laid on Articles — 2 .— any State.“ The question presented is whether the Harbor Maintenance Tax, 26 U.S.C. 68 4461-62 (1988 & Supp. V 1993) (Internal Revenue Code) [hereinafter 2 imposed upon merchandise exported m nited States, violates this prohibition. court concludes that it does. - 47a This case comes before the court on cross-motions for summary judgment pursuant to USCIT Rule 56. The parties agree there are no material facts in dispute. They also agree that the court has subject- matter jurisdiction to determine the constitutionality of the Tax. Congress has given the Court of International Trade jurisdiction over matters arising out of the Tax: “For purposes of determining the jurisdiction of any court of the United States or any agency of the United States, the tax imposed by this subchapter shall be treated as if such tax were a customs duty.” treated as if they were customs duties, in other words, as import transactions. Congress’s purpose in centralizing jurisdiction over import transactions in the Court of Inter- national Trade was to dispel the jurisdictional con- fusion existing as to the Court of International Trade’s predecessor, the Customs Court, and to re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0118%3A02. Public record. Not legal advice.