§ 1321. — Oil and hazardous substance liability.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1321]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III--STANDARDS AND ENFORCEMENT
Sec. 1321. Oil and hazardous substance liability
(a) Definitions
For the purpose of this section, the term--
(1) ``oil'' means oil of any kind or in any form, including, but
not limited to, petroleum, fuel oil, sludge, oil refuse, and oil
mixed with wastes other than dredged spoil;
(2) ``discharge'' includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping, but
excludes (A) discharges in compliance with a permit under section
1342 of this title, (B) discharges resulting from circumstances
identified and reviewed and made a part of the public record with
respect to a permit issued or modified under section 1342 of this
title, and subject to a condition in such permit,,\1\ (C) continuous
or anticipated intermittent discharges from a point source,
identified in a permit or permit application under section 1342 of
this title, which are caused by events occurring within the scope of
relevant operating or treatment systems, and (D) discharges
incidental to mechanical removal authorized by the President under
subsection (c) of this section;
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\1\ So in original.
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(3) ``vessel'' means every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of
transportation on water other than a public vessel;
(4) ``public vessel'' means a vessel owned or bareboat-chartered
and operated by the United States, or by a State or political
subdivision thereof, or by a foreign nation, except when such vessel
is engaged in commerce;
(5) ``United States'' means the States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, Guam, American Samoa, the Virgin Islands,
and the Trust Territory of the Pacific Islands;
(6) ``owner or operator'' means (A) in the case of a vessel, any
person owning, operating, or chartering by demise, such vessel, and
(B) in the case of an onshore facility, and an offshore facility,
any person owning or operating such onshore facility or offshore
facility, and (C) in the case of any abandoned offshore facility,
the person who owned or operated such facility immediately prior to
such abandonment;
(7) ``person'' includes an individual, firm, corporation,
association, and a partnership.
(8) ``remove'' or ``removal'' refers to containment and removal
of the oil or hazardous substances from the water and shorelines or
the taking of such other actions as may be necessary to prevent,
minimize, or mitigate damage to the public health or welfare,
including, but not limited to, fish, shellfish, wildlife, and public
and private property, shorelines, and beaches;
(9) ``contiguous zone'' means the entire zone established or to
be established by the United States under article 24 of the
Convention on the Territorial Sea and the Contiguous Zone;
(10) ``onshore facility'' means any facility (including, but not
limited to, motor vehicles and rolling stock) of any kind located
in, on, or under, any land within the United States other than
submerged land;
(11) ``offshore facility'' means any facility of any kind
located in, on, or under, any of the navigable waters of the United
States, and any facility of any kind which is subject to the
jurisdiction of the United States and is located in, on, or under
any other waters, other than a vessel or a public vessel;
(12) ``act of God'' means an act occasioned by an unanticipated
grave natural disaster;
(13) ``barrel'' means 42 United States gallons at 60 degrees
Fahrenheit;
(14) ``hazardous substance'' means any substance designated
pursuant to subsection (b)(2) of this section;
(15) ``inland oil barge'' means a non-self-propelled vessel
carrying oil in bulk as cargo and certificated to operate only in
the inland waters of the United States, while operating in such
waters;
(16) ``inland waters of the United States'' means those waters
of the United States lying inside the baseline from which the
territorial sea is measured and those waters outside such baseline
which are a part of the Gulf Intracoastal Waterway;
(17) ``otherwise subject to the jurisdiction of the United
States'' means subject to the jurisdiction of the United States by
virtue of United States citizenship, United States vessel
documentation or numbering, or as provided for by international
agreement to which the United States is a party;
(18) ``Area Committee'' means an Area Committee established
under subsection (j) of this section;
(19) ``Area Contingency Plan'' means an Area Contingency Plan
prepared under subsection (j) of this section;
(20) ``Coast Guard District Response Group'' means a Coast Guard
District Response Group established under subsection (j) of this
section;
(21) ``Federal On-Scene Coordinator'' means a Federal On-Scene
Coordinator designated in the National Contingency Plan;
(22) ``National Contingency Plan'' means the National
Contingency Plan prepared and published under subsection (d) of this
section;
(23) ``National Response Unit'' means the National Response Unit
established under subsection (j) of this section;
(24) ``worst case discharge'' means--
(A) in the case of a vessel, a discharge in adverse weather
conditions of its entire cargo; and
(B) in the case of an offshore facility or onshore facility,
the largest foreseeable discharge in adverse weather conditions;
and
(25) ``removal costs'' means--
(A) the costs of removal of oil or a hazardous substance
that are incurred after it is discharged; and
(B) in any case in which there is a substantial threat of a
discharge of oil or a hazardous substance, the costs to prevent,
minimize, or mitigate that threat.
(b) Congressional declaration of policy against discharges of oil or
hazardous substances; designation of hazardous substances; study
of higher standard of care incentives and report to Congress;
liability; penalties; civil actions: penalty limitations,
separate offenses, jurisdiction, mitigation of damages and
costs, recovery of removal costs, alternative remedies, and
withholding clearance of vessels
(1) The Congress hereby declares that it is the policy of the United
States that there should be no discharges of oil or hazardous substances
into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the contiguous zone, or in
connection with activities under the Outer Continental Shelf Lands Act
[43 U.S.C. 1331 et seq.] or the Deepwater Port Act of 1974 [33 U.S.C.
1501 et seq.], or which may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of the
United States (including resources under the Magnuson-Stevens Fishery
Conservation and Management Act [16 U.S.C. 1801 et seq.]).
(2)(A) The Administrator shall develop, promulgate, and revise as
may be appropriate, regulations designating as hazardous substances,
other than oil as defined in this section, such elements and compounds
which, when discharged in any quantity into or upon the navigable waters
of the United States or adjoining shorelines or the waters of the
contiguous zone or in connection with activities under the Outer
Continental Shelf Lands Act [43 U.S.C. 1331 et seq.] or the Deepwater
Port Act of 1974 [33 U.S.C. 1501 et seq.], or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources under the
Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801
et seq.]), present an imminent and substantial danger to the public
health or welfare, including, but not limited to, fish, shellfish,
wildlife, shorelines, and beaches.
(B) The Administrator shall within 18 months after the date of
enactment of this paragraph, conduct a study and report to the Congress
on methods, mechanisms, and procedures to create incentives to achieve a
higher standard of care in all aspects of the management and movement of
hazardous substances on the part of owners, operators, or persons in
charge of onshore facilities, offshore facilities, or vessels. The
Administrator shall include in such study (1) limits of liability, (2)
liability for third party damages, (3) penalties and fees, (4) spill
prevention plans, (5) current practices in the insurance and banking
industries, and (6) whether the penalty enacted in subclause (bb) of
clause (iii) of subparagraph (B) of subsection (b)(2) of section 311 of
Public Law 92-500 should be enacted.
(3) The discharge of oil or hazardous substances (i) into or upon
the navigable waters of the United States, adjoining shorelines, or into
or upon the waters of the contiguous zone, or (ii) in connection with
activities under the Outer Continental Shelf Lands Act [43 U.S.C. 1331
et seq.] or the Deepwater Port Act of 1974 [33 U.S.C. 1501 et seq.], or
which may affect natural resources belonging to, appertaining to, or
under the exclusive management authority of the United States (including
resources under the Magnuson-Stevens Fishery Conservation and Management
Act [16 U.S.C. 1801 et seq.]), in such quantities as may be harmful as
determined by the President under paragraph (4) of this subsection, is
prohibited, except (A) in the case of such discharges into the waters of
the contiguous zone or which may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of the
United States (including resources under the Magnuson-Stevens Fishery
Conservation and Management Act), where permitted under the Protocol of
1978 Relating to the International Convention for the Prevention of
Pollution from Ships, 1973, and (B) where permitted in quantities and at
times and locations or under such circumstances or conditions as the
President may, by regulation, determine not to be harmful. Any
regulations issued under this subsection shall be consistent with
maritime safety and with marine and navigation laws and regulations and
applicable water quality standards.
(4) The President shall by regulation determine for the purposes of
this section those quantities of oil and any hazardous substances the
discharge of which may be harmful to the public health or welfare or the
environment of the United States, including but not limited to fish,
shellfish, wildlife, and public and private property, shorelines, and
beaches.
(5) Any person in charge of a vessel or of an onshore facility or an
offshore facility shall, as soon as he has knowledge of any discharge of
oil or a hazardous substance from such vessel or facility in violation
of paragraph (3) of this subsection, immediately notify the appropriate
agency of the United States Government of such discharge. The Federal
agency shall immediately notify the appropriate State agency of any
State which is, or may reasonably be expected to be, affected by the
discharge of oil or a hazardous substance. Any such person (A) in charge
of a vessel from which oil or a hazardous substance is discharged in
violation of paragraph (3)(i) of this subsection, or (B) in charge of a
vessel from which oil or a hazardous substance is discharged in
violation of paragraph (3)(ii) of this subsection and who is otherwise
subject to the jurisdiction of the United States at the time of the
discharge, or (C) in charge of an onshore facility or an offshore
facility, who fails to notify immediately such agency of such discharge
shall, upon conviction, be fined in accordance with title 18, or
imprisoned for not more than 5 years, or both. Notification received
pursuant to this paragraph shall not be used against any such natural
person in any criminal case, except a prosecution for perjury or for
giving a false statement.
(6) Administrative penalties.--
(A) Violations.--Any owner, operator, or person in charge of any
vessel, onshore facility, or offshore facility--
(i) from which oil or a hazardous substance is discharged in
violation of paragraph (3), or
(ii) who fails or refuses to comply with any regulation
issued under subsection (j) of this section to which that owner,
operator, or person in charge is subject,
may be assessed a class I or class II civil penalty by the Secretary
of the department in which the Coast Guard is operating or the
Administrator.
(B) Classes of penalties.--
(i) Class i.--The amount of a class I civil penalty under
subparagraph (A) may not exceed $10,000 per violation, except
that the maximum amount of any class I civil penalty under this
subparagraph shall not exceed $25,000. Before assessing a civil
penalty under this clause, the Administrator or Secretary, as
the case may be, shall give to the person to be assessed such
penalty written notice of the Administrator's or Secretary's
proposal to assess the penalty and the opportunity to request,
within 30 days of the date the notice is received by such
person, a hearing on the proposed penalty. Such hearing shall
not be subject to section 554 or 556 of title 5, but shall
provide a reasonable opportunity to be heard and to present
evidence.
(ii) Class ii.--The amount of a class II civil penalty under
subparagraph (A) may not exceed $10,000 per day for each day
during which the violation continues; except that the maximum
amount of any class II civil penalty under this subparagraph
shall not exceed $125,000. Except as otherwise provided in this
subsection, a class II civil penalty shall be assessed and
collected in the same manner, and subject to the same
provisions, as in the case of civil penalties assessed and
collected after notice and opportunity for a hearing on the
record in accordance with section 554 of title 5. The
Administrator and Secretary may issue rules for discovery
procedures for hearings under this paragraph.
(C) Rights of interested persons.--
(i) Public notice.--Before issuing an order assessing a
class II civil penalty under this paragraph the Administrator or
Secretary, as the case may be, shall provide public notice of
and reasonable opportunity to comment on the proposed issuance
of such order.
(ii) Presentation of evidence.--Any person who comments on a
proposed assessment of a class II civil penalty under this
paragraph shall be given notice of any hearing held under this
paragraph and of the order assessing such penalty. In any
hearing held under this paragraph, such person shall have a
reasonable opportunity to be heard and to present evidence.
(iii) Rights of interested persons to a hearing.--If no
hearing is held under subparagraph (B) before issuance of an
order assessing a class II civil penalty under this paragraph,
any person who commented on the proposed assessment may
petition, within 30 days after the issuance of such order, the
Administrator or Secretary, as the case may be, to set aside
such order and to provide a hearing on the penalty. If the
evidence presented by the petitioner in support of the petition
is material and was not considered in the issuance of the order,
the Administrator or Secretary shall immediately set aside such
order and provide a hearing in accordance with subparagraph
(B)(ii). If the Administrator or Secretary denies a hearing
under this clause, the Administrator or Secretary shall provide
to the petitioner, and publish in the Federal Register, notice
of and the reasons for such denial.
(D) Finality of order.--An order assessing a class II civil
penalty under this paragraph shall become final 30 days after its
issuance unless a petition for judicial review is filed under
subparagraph (G) or a hearing is requested under subparagraph
(C)(iii). If such a hearing is denied, such order shall become final
30 days after such denial.
(E) Effect of order.--Action taken by the Administrator or
Secretary, as the case may be, under this paragraph shall not affect
or limit the Administrator's or Secretary's authority to enforce any
provision of this chapter; except that any violation--
(i) with respect to which the Administrator or Secretary has
commenced and is diligently prosecuting an action to assess a
class II civil penalty under this paragraph, or
(ii) for which the Administrator or Secretary has issued a
final order assessing a class II civil penalty not subject to
further judicial review and the violator has paid a penalty
assessed under this paragraph,
shall not be the subject of a civil penalty action under section
1319(d), 1319(g), or 1365 of this title or under paragraph (7).
(F) Effect of action on compliance.--No action by the
Administrator or Secretary under this paragraph shall affect any
person's obligation to comply with any section of this chapter.
(G) Judicial review.--Any person against whom a civil penalty is
assessed under this paragraph or who commented on the proposed
assessment of such penalty in accordance with subparagraph (C) may
obtain review of such assessment--
(i) in the case of assessment of a class I civil penalty, in
the United States District Court for the District of Columbia or
in the district in which the violation is alleged to have
occurred, or
(ii) in the case of assessment of a class II civil penalty,
in United States Court of Appeals for the District of Columbia
Circuit or for any other circuit in which such person resides or
transacts business,
by filing a notice of appeal in such court within the 30-day period
beginning on the date the civil penalty order is issued and by
simultaneously sending a copy of such notice by certified mail to
the Administrator or Secretary, as the case may be, and the Attorney
General. The Administrator or Secretary shall promptly file in such
court a certified copy of the record on which the order was issued.
Such court shall not set aside or remand such order unless there is
not substantial evidence in the record, taken as a whole, to support
the finding of a violation or unless the Administrator's or
Secretary's assessment of the penalty constitutes an abuse of
discretion and shall not impose additional civil penalties for the
same violation unless the Administrator's or Secretary's assessment
of the penalty constitutes an abuse of discretion.
(H) Collection.--If any person fails to pay an assessment of a
civil penalty--
(i) after the assessment has become final, or
(ii) after a court in an action brought under subparagraph
(G) has entered a final judgment in favor of the Administrator
or Secretary, as the case may be,
the Administrator or Secretary shall request the Attorney General to
bring a civil action in an appropriate district court to recover the
amount assessed (plus interest at currently prevailing rates from
the date of the final order or the date of the final judgment, as
the case may be). In such an action, the validity, amount, and
appropriateness of such penalty shall not be subject to review. Any
person who fails to pay on a timely basis the amount of an
assessment of a civil penalty as described in the first sentence of
this subparagraph shall be required to pay, in addition to such
amount and interest, attorneys fees and costs for collection
proceedings and a quarterly nonpayment penalty for each quarter
during which such failure to pay persists. Such nonpayment penalty
shall be in an amount equal to 20 percent of the aggregate amount of
such person's penalties and nonpayment penalties which are unpaid as
of the beginning of such quarter.
(I) Subpoenas.--The Administrator or Secretary, as the case may
be, may issue subpoenas for the attendance and testimony of
witnesses and the production of relevant papers, books, or documents
in connection with hearings under this paragraph. In case of
contumacy or refusal to obey a subpoena issued pursuant to this
subparagraph and served upon any person, the district court of the
United States for any district in which such person is found,
resides, or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give testimony
before the administrative law judge or to appear and produce
documents before the administrative law judge, or both, and any
failure to obey such order of the court may be punished by such
court as a contempt thereof.
(7) Civil penalty action.--
(A) Discharge, generally.--Any person who is the owner,
operator, or person in charge of any vessel, onshore facility, or
offshore facility from which oil or a hazardous substance is
discharged in violation of paragraph (3), shall be subject to a
civil penalty in an amount up to $25,000 per day of violation or an
amount up to $1,000 per barrel of oil or unit of reportable quantity
of hazardous substances discharged.
(B) Failure to remove or comply.--Any person described in
subparagraph (A) who, without sufficient cause--
(i) fails to properly carry out removal of the discharge
under an order of the President pursuant to subsection (c) of
this section; or
(ii) fails to comply with an order pursuant to subsection
(e)(1)(B) of this section;
shall be subject to a civil penalty in an amount up to $25,000 per
day of violation or an amount up to 3 times the costs incurred by
the Oil Spill Liability Trust Fund as a result of such failure.
(C) Failure to comply with regulation.--Any person who fails or
refuses to comply with any regulation issued under subsection (j) of
this section shall be subject to a civil penalty in an amount up to
$25,000 per day of violation.
(D) Gross negligence.--In any case in which a violation of
paragraph (3) was the result of gross negligence or willful
misconduct of a person described in subparagraph (A), the person
shall be subject to a civil penalty of not less than $100,000, and
not more than $3,000 per barrel of oil or unit of reportable
quantity of hazardous substance discharged.
(E) Jurisdiction.--An action to impose a civil penalty under
this paragraph may be brought in the district court of the United
States for the district in which the defendant is located, resides,
or is doing business, and such court shall have jurisdiction to
assess such penalty.
(F) Limitation.--A person is not liable for a civil penalty
under this paragraph for a discharge if the person has been assessed
a civil penalty under paragraph (6) for the discharge.
(8) Determination of amount.--In determining the amount of a civil
penalty under paragraphs (6) and (7), the Administrator, Secretary, or
the court, as the case may be, shall consider the seriousness of the
violation or violations, the economic benefit to the violator, if any,
resulting from the violation, the degree of culpability involved, any
other penalty for the same incident, any history of prior violations,
the nature, extent, and degree of success of any efforts of the violator
to minimize or mitigate the effects of the discharge, the economic
impact of the penalty on the violator, and any other matters as justice
may require.
(9) Mitigation of damage.--In addition to establishing a penalty for
the discharge of oil or a hazardous substance, the Administrator or the
Secretary of the department in which the Coast Guard is operating may
act to mitigate the damage to the public health or welfare caused by
such discharge. The cost of such mitigation shall be deemed a cost
incurred under subsection (c) of this section for the removal of such
substance by the United States Government.
(10) Recovery of removal costs.--Any costs of removal incurred in
connection with a discharge excluded by subsection (a)(2)(C) of this
section shall be recoverable from the owner or operator of the source of
the discharge in an action brought under section 1319(b) of this title.
(11) Limitation.--Civil penalties shall not be assessed under both
this section and section 1319 of this title for the same discharge.
(12) Withholding clearance.--If any owner, operator, or person in
charge of a vessel is liable for a civil penalty under this subsection,
or if reasonable cause exists to believe that the owner, operator, or
person in charge may be subject to a civil penalty under this
subsection, the Secretary of the Treasury, upon the request of the
Secretary of the department in which the Coast Guard is operating or the
Administrator, shall with respect to such vessel refuse or revoke--
(A) the clearance required by section 91 of title 46, Appendix;
(B) a permit to proceed under section 313 \2\ of title 46,
Appendix; and
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(C) a permit to depart required under section 1443 \2\ of title
19;
as applicable. Clearance or a permit refused or revoked under this
paragraph may be granted upon the filing of a bond or other surety
satisfactory to the Secretary of the department in which the Coast Guard
is operating or the Administrator.
(c) Federal removal authority
(1) General removal requirement
(A) The President shall, in accordance with the National
Contingency Plan and any appropriate Area Contingency Plan, ensure
effective and immediate removal of a discharge, and mitigation or
prevention of a substantial threat of a discharge, of oil or a
hazardous substance--
(i) into or on the navigable waters;
(ii) on the adjoining shorelines to the navigable waters;
(iii) into or on the waters of the exclusive economic zone;
or
(iv) that may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of
the United States.
(B) In carrying out this paragraph, the President may--
(i) remove or arrange for the removal of a discharge, and
mitigate or prevent a substantial threat of a discharge, at any
time;
(ii) direct or monitor all Federal, State, and private
actions to remove a discharge; and
(iii) remove and, if necessary, destroy a vessel
discharging, or threatening to discharge, by whatever means are
available.
(2) Discharge posing substantial threat to public health or
welfare
(A) If a discharge, or a substantial threat of a discharge, of
oil or a hazardous substance from a vessel, offshore facility, or
onshore facility is of such a size or character as to be a
substantial threat to the public health or welfare of the United
States (including but not limited to fish, shellfish, wildlife,
other natural resources, and the public and private beaches and
shorelines of the United States), the President shall direct all
Federal, State, and private actions to remove the discharge or to
mitigate or prevent the threat of the discharge.
(B) In carrying out this paragraph, the President may, without
regard to any other provision of law governing contracting
procedures or employment of personnel by the Federal Government--
(i) remove or arrange for the removal of the discharge, or
mitigate or prevent the substantial threat of the discharge; and
(ii) remove and, if necessary, destroy a vessel discharging,
or threatening to discharge, by whatever means are available.
(3) Actions in accordance with National Contingency Plan
(A) Each Federal agency, State, owner or operator, or other
person participating in efforts under this subsection shall act in
accordance with the National Contingency Plan or as directed by the
President.
(B) An owner or operator participating in efforts under this
subsection shall act in accordance with the National Contingency
Plan and the applicable response plan required under subsection (j)
of this section, or as directed by the President, except that the
owner or operator may deviate from the applicable response plan if
the President or the Federal On-Scene Coordinator determines that
deviation from the response plan would provide for a more
expeditious or effective response to the spill or mitigation of its
environmental effects.
(4) Exemption from liability
(A) A person is not liable for removal costs or damages which
result from actions taken or omitted to be taken in the course of
rendering care, assistance, or advice consistent with the National
Contingency Plan or as otherwise directed by the President relating
to a discharge or a substantial threat of a discharge of oil or a
hazardous substance.
(B) Subparagraph (A) does not apply--
(i) to a responsible party;
(ii) to a response under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.);
(iii) with respect to personal injury or wrongful death; or
(iv) if the person is grossly negligent or engages in
willful misconduct.
(C) A responsible party is liable for any removal costs and
damages that another person is relieved of under subparagraph (A).
(5) Obligation and liability of owner or operator not
affected
Nothing in this subsection affects--
(A) the obligation of an owner or operator to respond
immediately to a discharge, or the threat of a discharge, of
oil; or
(B) the liability of a responsible party under the Oil
Pollution Act of 1990 [33 U.S.C. 2701 et seq.].
(6) ``Responsible party'' defined
For purposes of this subsection, the term ``responsible party''
has the meaning given that term under section 1001 of the Oil
Pollution Act of 1990 [33 U.S.C. 2701].
(d) National Contingency Plan
(1) Preparation by President
The President shall prepare and publish a National Contingency
Plan for removal of oil and hazardous substances pursuant to this
section.
(2) Contents
The National Contingency Plan shall provide for efficient,
coordinated, and effective action to minimize damage from oil and
hazardous substance discharges, including containment, dispersal,
and removal of oil and hazardous substances, and shall include, but
not be limited to, the following:
(A) Assignment of duties and responsibilities among Federal
departments and agencies in coordination with State and local
agencies and port authorities including, but not limited to,
water pollution control and conservation and trusteeship of
natural resources (including conservation of fish and wildlife).
(B) Identification, procurement, maintenance, and storage of
equipment and supplies.
(C) Establishment or designation of Coast Guard strike
teams, consisting of--
(i) personnel who shall be trained, prepared, and
available to provide necessary services to carry out the
National Contingency Plan;
(ii) adequate oil and hazardous substance pollution
control equipment and material; and
(iii) a detailed oil and hazardous substance pollution
and prevention plan, including measures to protect fisheries
and wildlife.
(D) A system of surveillance and notice designed to
safeguard against as well as ensure earliest possible notice of
discharges of oil and hazardous substances and imminent threats
of such discharges to the appropriate State and Federal
agencies.
(E) Establishment of a national center to provide
coordination and direction for operations in carrying out the
Plan.
(F) Procedures and techniques to be employed in identifying,
containing, dispersing, and removing oil and hazardous
substances.
(G) A schedule, prepared in cooperation with the States,
identifying--
(i) dispersants, other chemicals, and other spill
mitigating devices and substances, if any, that may be used
in carrying out the Plan,
(ii) the waters in which such dispersants, other
chemicals, and other spill mitigating devices and substances
may be used, and
(iii) the quantities of such dispersant, other
chemicals, or other spill mitigating device or substance
which can be used safely in such waters,
which schedule shall provide in the case of any dispersant,
chemical, spill mitigating device or substance, or waters not
specifically identified in such schedule that the President, or
his delegate, may, on a case-by-case basis, identify the
dispersants, other chemicals, and other spill mitigating devices
and substances which may be used, the waters in which they may
be used, and the quantities which can be used safely in such
waters.
(H) A system whereby the State or States affected by a
discharge of oil or hazardous substance may act where necessary
to remove such discharge and such State or States may be
reimbursed in accordance with the Oil Pollution Act of 1990 [33
U.S.C. 2701 et seq.], in the case of any discharge of oil from a
vessel or facility, for the reasonable costs incurred for that
removal, from the Oil Spill Liability Trust Fund.
(I) Establishment of criteria and procedures to ensure
immediate and effective Federal identification of, and response
to, a discharge, or the threat of a discharge, that results in a
substantial threat to the public health or welfare of the United
States, as required under subsection (c)(2) of this section.
(J) Establishment of procedures and standards for removing a
worst case discharge of oil, and for mitigating or preventing a
substantial threat of such a discharge.
(K) Designation of the Federal official who shall be the
Federal On-Scene Coordinator for each area for which an Area
Contingency Plan is required to be prepared under subsection (j)
of this section.
(L) Establishment of procedures for the coordination of
activities of--
(i) Coast Guard strike teams established under
subparagraph (C);
(ii) Federal On-Scene Coordinators designated under
subparagraph (K);
(iii) District Response Groups established under
subsection (j) of this section; and
(iv) Area Committees established under subsection (j) of
this section.
(M) A fish and wildlife response plan, developed in
consultation with the United States Fish and Wildlife Service,
the National Oceanic and Atmospheric Administration, and other
interested parties (including State fish and wildlife
conservation officials), for the immediate and effective
protection, rescue, and rehabilitation of, and the minimization
of risk of damage to, fish and wildlife resources and their
habitat that are harmed or that may be jeopardized by a
discharge.
(3) Revisions and amendments
The President may, from time to time, as the President deems
advisable, revise or otherwise amend the National Contingency Plan.
(4) Actions in accordance with National Contingency Plan
After publication of the National Contingency Plan, the removal
of oil and hazardous substances and actions to minimize damage from
oil and hazardous substance discharges shall, to the greatest extent
possible, be in accordance with the National Contingency Plan.
(e) Civil enforcement
(1) Orders protecting public health
In addition to any action taken by a State or local government,
when the President determines that there may be an imminent and
substantial threat to the public health or welfare of the United
States, including fish, shellfish, and wildlife, public and private
property, shorelines, beaches, habitat, and other living and
nonliving natural resources under the jurisdiction or control of the
United States, because of an actual or threatened discharge of oil
or a hazardous substance from a vessel or facility in violation of
subsection (b) of this section, the President may--
(A) require the Attorney General to secure any relief from
any person, including the owner or operator of the vessel or
facility, as may be necessary to abate such endangerment; or
(B) after notice to the affected State, take any other
action under this section, including issuing administrative
orders, that may be necessary to protect the public health and
welfare.
(2) Jurisdiction of district courts
The district courts of the United States shall have jurisdiction
to grant any relief under this subsection that the public interest
and the equities of the case may require.
(f) Liability for actual costs of removal
(1) Except where an owner or operator can prove that a discharge was
caused solely by (A) an act of God, (B) an act of war, (C) negligence on
the part of the United States Government, or (D) an act or omission of a
third party without regard to whether any such act or omission was or
was not negligent, or any combination of the foregoing clauses, such
owner or operator of any vessel from which oil or a hazardous substance
is discharged in violation of subsection (b)(3) of this section shall,
notwithstanding any other provision of law, be liable to the United
States Government for the actual costs incurred under subsection (c) of
this section for the removal of such oil or substance by the United
States Government in an amount not to exceed, in the case of an inland
oil barge $125 per gross ton of such barge, or $125,000, whichever is
greater, and in the case of any other vessel, $150 per gross ton of such
vessel (or, for a vessel carrying oil or hazardous substances as cargo,
$250,000), whichever is greater, except that where the United States can
show that such discharge was the result of willful negligence or willful
misconduct within the privity and knowledge of the owner, such owner or
operator shall be liable to the United States Government for the full
amount of such costs. Such costs shall constitute a maritime lien on
such vessel which may be recovered in an action in rem in the district
court of the United States for any district within which any vessel may
be found. The United States may also bring an action against the owner
or operator of such vessel in any court of competent jurisdiction to
recover such costs.
(2) Except where an owner or operator of an onshore facility can
prove that a discharge was caused solely by (A) an act of God, (B) an
act of war, (C) negligence on the part of the United States Government,
or (D) an act or omission of a third party without regard to whether any
such act or omission was or was not negligent, or any combination of the
foregoing clauses, such owner or operator of any such facility from
which oil or a hazardous substance is discharged in violation of
subsection (b)(3) of this section shall be liable to the United States
Government for the actual costs incurred under subsection (c) of this
section for the removal of such oil or substance by the United States
Government in an amount not to exceed $50,000,000, except that where the
United States can show that such discharge was the result of willful
negligence or willful misconduct within the privity and knowledge of the
owner, such owner or operator shall be liable to the United States
Government for the full amount of such costs. The United States may
bring an action against the owner or operator of such facility in any
court of competent jurisdiction to recover such costs. The Administrator
is authorized, by regulation, after consultation with the Secretary of
Commerce and the Small Business Administration, to establish reasonable
and equitable classifications of those onshore facilities having a total
fixed storage capacity of 1,000 barrels or less which he determines
because of size, type, and location do not present a substantial risk of
the discharge of oil or a hazardous substance in violation of subsection
(b)(3) of this section, and apply with respect to such classifications
differing limits of liability which may be less than the amount
contained in this paragraph.
(3) Except where an owner or operator of an offshore facility can
prove that a discharge was caused solely by (A) an act of God, (B) an
act of war, (C) negligence on the part of the United States Government,
or (D) an act or omission of a third party without regard to whether any
such act or omission was or was not negligent, or any combination of the
foregoing clauses, such owner or operator of any such facility from
which oil or a hazardous substance is discharged in violation of
subsection (b)(3) of this section shall, notwithstanding any other
provision of law, be liable to the United States Government for the
actual costs incurred under subsection (c) of this section for the
removal of such oil or substance by the United States Government in an
amount not to exceed $50,000,000, except that where the United States
can show that such discharge was the result of willful negligence or
willful misconduct within the privity and knowledge of the owner, such
owner or operator shall be liable to the United States Government for
the full amount of such costs. The United States may bring an action
against the owner or operator of such a facility in any court of
competent jurisdiction to recover such costs.
(4) The costs of removal of oil or a hazardous substance for which
the owner or operator of a vessel or onshore or offshore facility is
liable under subsection (f) of this section shall include any costs or
expenses incurred by the Federal Government or any State government in
the restoration or replacement of natural resources damaged or destroyed
as a result of a discharge of oil or a hazardous substance in violation
of subsection (b) of this section.
(5) The President, or the authorized representative of any State,
shall act on behalf of the public as trustee of the natural resources to
recover for the costs of replacing or restoring such resources. Sums
recovered shall be used to restore, rehabilitate, or acquire the
equivalent of such natural resources by the appropriate agencies of the
Federal Government, or the State government.
(g) Third party liability
Where the owner or operator of a vessel (other than an inland oil
barge) carrying oil or hazardous substances as cargo or an onshore or
offshore facility which handles or stores oil or hazardous substances in
bulk, from which oil or a hazardous substance is discharged in violation
of subsection (b) of this section, alleges that such discharge was
caused solely by an act or omission of a third party, such owner or
operator shall pay to the United States Government the actual costs
incurred under subsection (c) of this section for removal of such oil or
substance and shall be entitled by subrogation to all rights of the
United States Government to recover such costs from such third party
under this subsection. In any case where an owner or operator of a
vessel, of an onshore facility, or of an offshore facility, from which
oil or a hazardous substance is discharged in violation of subsection
(b)(3) of this section, proves that such discharge of oil or hazardous
substance was caused solely by an act or omission of a third party, or
was caused solely by such an act or omission in combination with an act
of God, an act of war, or negligence on the part of the United States
Government, such third party shall, notwithstanding any other provision
of law, be liable to the United States Government for the actual costs
incurred under subsection (c) of this section for removal of such oil or
substance by the United States Government, except where such third party
can prove that such discharge was caused solely by (A) an act of God,
(B) an act of war, (C) negligence on the part of the United States
Government, or (D) an act or omission of another party without regard to
whether such act or omission was or was not negligent, or any
combination of the foregoing clauses. If such third party was the owner
or operator of a vessel which caused the discharge of oil or a hazardous
substance in violation of subsection (b)(3) of this section, the
liability of such third party under this subsection shall not exceed, in
the case of an inland oil barge $125 per gross ton of such barge, or
$125,000, whichever is greater, and in the case of any other vessel,
$150 per gross ton of such vessel (or, for a vessel carrying oil or
hazardous substances as cargo, $250,000), whichever is greater. In any
other case the liability of such third party shall not exceed the
limitation which would have been applicable to the owner or operator of
the vessel or the onshore or offshore facility from which the discharge
actually occurred if such owner or operator were liable. If the United
States can show that the discharge of oil or a hazardous substance in
violation of subsection (b)(3) of this section was the result of willful
negligence or willful misconduct within the privity and knowledge of
such third party, such third party shall be liable to the United States
Government for the full amount of such removal costs. The United States
may bring an action against the third party in any court of competent
jurisdiction to recover such removal costs.
(h) Rights against third parties who caused or contributed to discharge
The liabilities established by this section shall in no way affect
any rights which (1) the owner or operator of a vessel or of an onshore
facility or an offshore facility may have against any third party whose
acts may in any way have caused or contributed to such discharge, or (2)
the United States Government may have against any third party whose
actions may in any way have caused or contributed to the discharge of
oil or hazardous substance.
(i) Recovery of removal costs
In any case where an owner or operator of a vessel or an onshore
facility or an offshore facility from which oil or a hazardous substance
is discharged in violation of subsection (b)(3) of this section acts to
remove such oil or substance in accordance with regulations promulgated
pursuant to this section, such owner or operator shall be entitled to
recover the reasonable costs incurred in such removal upon establishing,
in a suit which may be brought against the United States Government in
the United States Court of Federal Claims, that such discharge was
caused solely by (A) an act of God, (B) an act of war, (C) negligence on
the part of the United States Government, or (D) an act or omission of a
third party without regard to whether such act or omission was or was
not negligent, or of any combination of the foregoing causes.
(j) National Response System
(1) In general
Consistent with the National Contingency Plan required by
subsection (c)(2) of this section, as soon as practicable after
October 18, 1972, and from time to time thereafter, the President
shall issue regulations consistent with maritime safety and with
marine and navigation laws (A) establishing methods and procedures
for removal of discharged oil and hazardous substances, (B)
establishing criteria for the development and implementation of
local and regional oil and hazardous substance removal contingency
plans, (C) establishing procedures, methods, and equipment and other
requirements for equipment to prevent discharges of oil and
hazardous substances from vessels and from onshore facilities and
offshore facilities, and to contain such discharges, and (D)
governing the inspection of vessels carrying cargoes of oil and
hazardous substances and the inspection of such cargoes in order to
reduce the likelihood of discharges of oil from vessels in violation
of this section.
(2) National Response Unit
The Secretary of the department in which the Coast Guard is
operating shall establish a National Response Unit at Elizabeth
City, North Carolina. The Secretary, acting through the National
Response Unit--
(A) shall compile and maintain a comprehensive computer list
of spill removal resources, personnel, and equipment that is
available worldwide and within the areas designated by the
President pursuant to paragraph (4), and of information
regarding previous spills, including data from universities,
research institutions, State governments, and other nations, as
appropriate, which shall be disseminated as appropriate to
response groups and area committees, and which shall be
available to Federal and State agencies and the public;
(B) shall provide technical assistance, equipment, and other
resources requested by a Federal On-Scene Coordinator;
(C) shall coordinate use of private and public personnel and
equipment to remove a worst case discharge, and to mitigate or
prevent a substantial threat of such a discharge, from a vessel,
offshore facility, or onshore facility operating in or near an
area designated by the President pursuant to paragraph (4);
(D) may provide technical assistance in the preparation of
Area Contingency Plans required under paragraph (4);
(E) shall administer Coast Guard strike teams established
under the National Contingency Plan;
(F) shall maintain on file all Area Contingency Plans
approved by the President under this subsection; and
(G) shall review each of those plans that affects its
responsibilities under this subsection.
(3) Coast Guard District Response Groups
(A) The Secretary of the department in which the Coast Guard is
operating shall establish in each Coast Guard district a Coast Guard
District Response Group.
(B) Each Coast Guard District Response Group shall consist of--
(i) the Coast Guard personnel and equipment, including
firefighting equipment, of each port within the district;
(ii) additional prepositioned equipment; and
(iii) a district response advisory staff.
(C) Coast Guard district response groups--
(i) shall provide technical assistance, equipment, and other
resources when required by a Federal On-Scene Coordinator;
(ii) shall maintain all Coast Guard response equipment
within its district;
(iii) may provide technical assistance in the preparation of
Area Contingency Plans required under paragraph (4); and
(iv) shall review each of those plans that affect its area
of geographic responsibility.
(4) Area Committees and Area Contingency Plans
(A) There is established for each area designated by the
President an Area Committee comprised of members appointed by the
President from qualified personnel of Federal, State, and local
agencies.
(B) Each Area Committee, under the direction of the Federal On-
Scene Coordinator for its area, shall--
(i) prepare for its area the Area Contingency Plan required
under subparagraph (C);
(ii) work with State and local officials to enhance the
contingency planning of those officials and to assure
preplanning of joint response efforts, including appropriate
procedures for mechanical recovery, dispersal, shoreline
cleanup, protection of sensitive environmental areas, and
protection, rescue, and rehabilitation of fisheries and
wildlife; and
(iii) work with State and local officials to expedite
decisions for the use of dispersants and other mitigating
substances and devices.
(C) Each Area Committee shall prepare and submit to the
President for approval an Area Contingency Plan for its area. The
Area Contingency Plan shall--
(i) when implemented in conjunction with the National
Contingency Plan, be adequate to remove a worst case discharge,
and to mitigate or prevent a substantial threat of such a
discharge, from a vessel, offshore facility, or onshore facility
operating in or near the area;
(ii) describe the area covered by the plan, including the
areas of special economic or environmental importance that might
be damaged by a discharge;
(iii) describe in detail the responsibilities of an owner or
operator and of Federal, State, and local agencies in removing a
discharge, and in mitigating or preventing a substantial threat
of a discharge;
(iv) list the equipment (including firefighting equipment),
dispersants or other mitigating substances and devices, and
personnel available to an owner or operator and Federal, State,
and local agencies, to ensure an effective and immediate removal
of a discharge, and to ensure mitigation or prevention of a
substantial threat of a discharge;
(v) compile a list of local scientists, both inside and
outside Federal Government service, with expertise in the
environmental effects of spills of the types of oil typically
transported in the area, who may be contacted to provide
information or, where appropriate, participate in meetings of
the scientific support team convened in response to a spill, and
describe the procedures to be followed for obtaining an
expedited decision regarding the use of dispersants;
(vi) describe in detail how the plan is integrated into
other Area Contingency Plans and vessel, offshore facility, and
onshore facility response plans approved under this subsection,
and into operating procedures of the National Response Unit;
(vii) include any other information the President requires;
and
(viii) be updated periodically by the Area Committee.
(D) The President shall--
(i) review and approve Area Contingency Plans under this
paragraph; and
(ii) periodically review Area Contingency Plans so approved.
(5) Tank vessel and facility response plans
(A) The President shall issue regulations which require an owner
or operator of a tank vessel or facility described in subparagraph
(B) to prepare and submit to the President a plan for responding, to
the maximum extent practicable, to a worst case discharge, and to a
substantial threat of such a discharge, of oil or a hazardous
substance.
(B) The tank vessels and facilities referred to in subparagraph
(A) are the following:
(i) A tank vessel, as defined under section 2101 of title
46.
(ii) An offshore facility.
(iii) An onshore facility that, because of its location,
could reasonably be expected to cause substantial harm to the
environment by discharging into or on the navigable waters,
adjoining shorelines, or the exclusive economic zone.
(C) A response plan required under this paragraph shall--
(i) be consistent with the requirements of the National
Contingency Plan and Area Contingency Plans;
(ii) identify the qualified individual having full authority
to implement removal actions, and require immediate
communications between that individual and the appropriate
Federal official and the persons providing personnel and
equipment pursuant to clause (iii);
(iii) identify, and ensure by contract or other means
approved by the President the availability of, private personnel
and equipment necessary to remove to the maximum extent
practicable a worst case discharge (including a discharge
resulting from fire or explosion), and to mitigate or prevent a
substantial threat of such a discharge;
(iv) describe the training, equipment testing, periodic
unannounced drills, and response actions of persons on the
vessel or at the facility, to be carried out under the plan to
ensure the safety of the vessel or facility and to mitigate or
prevent the discharge, or the substantial threat of a discharge;
(v) be updated periodically; and
(vi) be resubmitted for approval of each significant change.
(D) With respect to any response plan submitted under this
paragraph for an onshore facility that, because of its location,
could reasonably be expected to cause significant and substantial
harm to the environment by discharging into or on the navigable
waters or adjoining shorelines or the exclusive economic zone, and
with respect to each response plan submitted under this paragraph
for a tank vessel or offshore facility, the President shall--
(i) promptly review such response plan;
(ii) require amendments to any plan that does not meet the
requirements of this paragraph;
(iii) approve any plan that meets the requirements of this
paragraph; and
(iv) review each plan periodically thereafter.
(E) A tank vessel, offshore facility, or onshore facility
required to prepare a response plan under this subsection may not
handle, store, or transport oil unless--
(i) in the case of a tank vessel, offshore facility, or
onshore facility for which a response plan is reviewed by the
President under subparagraph (D), the plan has been approved by
the President; and
(ii) the vessel or facility is operating in compliance with
the plan.
(F) Notwithstanding subparagraph (E), the President may
authorize a tank vessel, offshore facility, or onshore facility to
operate without a response plan approved under this paragraph, until
not later than 2 years after the date of the submission to the
President of a plan for the tank vessel or facility, if the owner or
operator certifies that the owner or operator has ensured by
contract or other means approved by the President the availability
of private personnel and equipment necessary to respond, to the
maximum extent practicable, to a worst case discharge or a
substantial threat of such a discharge.
(G) The owner or operator of a tank vessel, offshore facility,
or onshore facility may not claim as a defense to liability under
title I of the Oil Pollution Act of 1990 [33 U.S.C. 2701 et seq.]
that the owner or operator was acting in accordance with an approved
response plan.
(H) The Secretary shall maintain, in the Vessel Identification
System established under chapter 125 of title 46, the dates of
approval and review of a response plan under this paragraph for each
tank vessel that is a vessel of the United States.
(6) Equipment requirements and inspection
Not later than 2 years after August 18, 1990, the President
shall require--
(A) periodic inspection of containment booms, skimmers,
vessels, and other major equipment used to remove discharges;
and
(B) vessels operating on navigable waters and carrying oil
or a hazardous substance in bulk as cargo to carry appropriate
removal equipment that employs the best technology economically
feasible and that is compatible with the safe operation of the
vessel.
(7) Area drills
The President shall periodically conduct drills of removal
capability, without prior notice, in areas for which Area
Contingency Plans are required under this subsection and under
relevant tank vessel and facility response plans. The drills may
include participation by Federal, State, and local agencies, the
owners and operators of vessels and facilities in the area, and
private industry. The President may publish annual reports on these
drills, including assessments of the effectiveness of the plans and
a list of amendments made to improve plans.
(8) United States Government not liable
The United States Government is not liable for any damages
arising from its actions or omissions relating to any response plan
required by this section.
(k) Repealed. Pub. L. 101-380, title II, Sec. 2002(b)(2), Aug. 18, 1990,
104 Stat. 507
(l) Administration
The President is authorized to delegate the administration of this
section to the heads of those Federal departments, agencies, and
instrumentalities which he determines to be appropriate. Each such
department, agency, and instrumentality, in order to avoid duplication
of effort, shall, whenever appropriate, utilize the personnel, services,
and facilities of other Federal departments, agencies, and
instrumentalities.
(m) Administrative provisions
(1) For vessels
Anyone authorized by the President to enforce the provisions of
this section with respect to any vessel may, except as to public
vessels--
(A) board and inspect any vessel upon the navigable waters
of the United States or the waters of the contiguous zone,
(B) with or without a warrant, arrest any person who in the
presence or view of the authorized person violates the
provisions of this section or any regulation issued thereunder,
and
(C) execute any warrant or other process issued by an
officer or court of competent jurisdiction.
(2) For facilities
(A) Recordkeeping
Whenever required to carry out the purposes of this section,
the Administrator or the Secretary of the Department in which
the Coast Guard is operating shall require the owner or operator
of a facility to which this section applies to establish and
maintain such records, make such reports, install, use, and
maintain such monitoring equipment and methods, and provide such
other information as the Administrator or Secretary, as the case
may be, may require to carry out the objectives of this section.
(B) Entry and inspection
Whenever required to carry out the purposes of this section,
the Administrator or the Secretary of the Department in which
the Coast Guard is operating or an authorized representative of
the Administrator or Secretary, upon presentation of appropriate
credentials, may--
(i) enter and inspect any facility to which this section
applies, including any facility at which any records are
required to be maintained under subparagraph (A); and
(ii) at reasonable times, have access to and copy any
records, take samples, and inspect any monitoring equipment
or methods required under subparagraph (A).
(C) Arrests and execution of warrants
Anyone authorized by the Administrator or the Secretary of
the department in which the Coast Guard is operating to enforce
the provisions of this section with respect to any facility
may--
(i) with or without a warrant, arrest any person who
violates the provisions of this section or any regulation
issued thereunder in the presence or view of the person so
authorized; and
(ii) execute any warrant or process issued by an officer
or court of competent jurisdiction.
(D) Public access
Any records, reports, or information obtained under this
paragraph shall be subject to the same public access and
disclosure requirements which are applicable to records,
reports, and information obtained pursuant to section 1318 of
this title.
(n) Jurisdiction
The several district courts of the United States are invested with
jurisdiction for any actions, other than actions pursuant to subsection
(i)(1) of this section, arising under this section. In the case of Guam
and the Trust Territory of the Pacific Islands, such actions may be
brought in the district court of Guam, and in the case of the Virgin
Islands such actions may be brought in the district court of the Virgin
Islands. In the case of American Samoa and the Trust Territory of the
Pacific Islands, such actions may be brought in the District Court of
the United States for the District of Hawaii and such court shall have
jurisdiction of such actions. In the case of the Canal Zone, such
actions may be brought in the United States District Court for the
District of the Canal Zone.
(o) Obligation for damages unaffected; local authority not preempted;
existing Federal authority not modified or affected
(1) Nothing in this section shall affect or modify in any way the
obligations of any owner or operator of any vessel, or of any owner or
operator of any onshore facility or offshore facility to any person or
agency under any provision of law for damages to any publicly owned or
privately owned property resulting from a discharge of any oil or
hazardous substance or from the removal of any such oil or hazardous
substance.
(2) Nothing in this section shall be construed as preempting any
State or political subdivision thereof from imposing any requirement or
liability with respect to the discharge of oil or hazardous substance
into any waters within such State, or with respect to any removal
activities related to such discharge.
(3) Nothing in this section shall be construed as affecting or
modifying any other existing authority of any Federal department,
agency, or instrumentality, relative to onshore or offshore facilities
under this chapter or any other provision of law, or to affect any State
or local law not in conflict with this section.
(p) Repealed. Pub. L. 101-380, title II, Sec. 2002(b)(4), Aug. 18, 1990,
104 Stat. 507
(q) Establishment of maximum limit of liability with respect to onshore
or offshore facilities
The President is authorized to establish, with respect to any class
or category of onshore or offshore facilities, a maximum limit of
liability under subsections (f)(2) and (3) of this section of less than
$50,000,000, but not less than $8,000,000.
(r) Liability limitations not to limit liability under other legislation
Nothing in this section shall be construed to impose, or authorize
the imposition of, any limitation on liability under the Outer
Continental Shelf Lands Act [43 U.S.C. 1331 et seq.] or the Deepwater
Port Act of 1974 [33 U.S.C. 1501 et seq.].
(s) Oil Spill Liability Trust Fund
The Oil Spill Liability Trust Fund established under section 9509 of
title 26 shall be available to carry out subsections (b), (c), (d), (j),
and (l) of this section as those subsections apply to discharges, and
substantial threats of discharges, of oil. Any amounts received by the
United States under this section shall be deposited in the Oil Spill
Liability Trust Fund.
(June 30, 1948, ch. 758, title III, Sec. 311, as added Pub. L. 92-500,
Sec. 2, Oct. 18, 1972, 86 Stat. 862; amended Pub. L. 93-207, Sec. 1(4),
Dec. 28, 1973, 87 Stat. 906; Pub. L. 95-217, Secs. 57, 58(a)-(g), (i),
(k)-(m), Dec. 27, 1977, 91 Stat. 1593-1596; Pub. L. 95-576, Sec. 1(b),
Nov. 2, 1978, 92 Stat. 2467; Pub. L. 96-478, Sec. 13(b), Oct. 21, 1980,
94 Stat. 2303; Pub. L. 96-483, Sec. 8, Oct. 21, 1980, 94 Stat. 2362;
Pub. L. 96-561, title II, Sec. 238(b), Dec. 22, 1980, 94 Stat. 3300;
Pub. L. 97-164, title I, Sec. 161(5), Apr. 2, 1982, 96 Stat. 49; Pub. L.
100-4, title V, Sec. 502(b), Feb. 4, 1987, 101 Stat. 75; Pub. L. 101-
380, title II, Sec. 2002(b), title IV, Secs. 4201(a), (b), (b)[(c)],
4202(a), (c), 4204, 4301(a), (b), 4305, 4306, Aug. 18, 1990, 104 Stat.
507, 523-527, 532, 533, 540, 541; Pub. L. 102-388, title III, Sec. 349,
Oct. 6, 1992, 106 Stat. 1554; Pub. L. 102-572, title IX, Sec. 902(b)(1),
Oct. 29, 1992, 106 Stat. 4516; Pub. L. 104-208, div. A, title I,
Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009,
3009-41; Pub. L. 104-324, title XI, Secs. 1143, 1144, Oct. 19, 1996, 110
Stat. 3992; Pub. L. 105-383, title IV, Sec. 411, Nov. 13, 1998, 112
Stat. 3432.)
References in Text
The Outer Continental Shelf Lands Act, referred to in subsecs.
(b)(1), (2)(A), (3) and (r), is act Aug. 7, 1953, ch. 345, 67 Stat. 462,
as amended, which is classified generally to subchapter III (Sec. 1331
et seq.) of chapter 29 of Title 43, Public Lands. For complete
classification of this Act to the Code, see Short Title note set out
under section 1331 of Title 43 and Tables.
The Deepwater Port Act of 1974, referred to in subsecs. (b)(1),
(2)(A), (3) and (r), is Pub. L. 93-627, Jan. 3, 1975, 88 Stat. 2126, as
amended, which is classified generally to chapter 29 (Sec. 1501 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out under section 1501 of this title and Tables.
The Magnuson-Stevens Fishery Conservation and Management Act,
referred to in subsec. (b)(1), (2)(A), (3), is Pub. L. 94-265, Apr. 13,
1976, 90 Stat. 331, as amended, which is classified principally to
chapter 38 (Sec. 1801 et seq.) of Title 16, Conservation. For complete
classification of this Act to the Code, see Short Title note set out
under section 1801 of Title 16 and Tables.
The date of enactment of this paragraph, referred to in subsec.
(b)(2)(B), probably means the date of enactment of Pub. L. 95-576, which
amended subsec. (b)(2)(B) and which was approved Nov. 2, 1978.
The penalty enacted in subclause (bb) of clause (iii) of
subparagraph (B) of subsection (b)(2) of section 311 of Public Law 92-
500, referred to in subsec. (b)(2)(B), probably means the penalty
provision of subsec. (b)(2)(B)(iii)(bb) of this section as added by Pub.
L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 864, prior to the amendment
to subsec. (b)(2)(B) by section 1(b)(3) of Pub. L. 95-576. Prior to
amendment, subsec. (b)(2)(B)(iii)(bb) read as follows: ``a penalty
determined by the number of units discharged multiplied by the amount
established for such unit under clause (iv) of this subparagraph, but
such penalty shall not be more than $5,000,000 in the case of a
discharge from a vessel and $500,000 in the case of a discharge from an
onshore or offshore facility.''
Section 313 of title 46, Appendix, referred to in subsec.
(b)(12)(B), was repealed by Pub. L. 103-182, title VI, Sec. 690(a)(21),
Dec. 8, 1993, 107 Stat. 2223.
Section 1443 of title 19, referred to in subsec. (b)(12)(C), was
repealed by Pub. L. 103-182, title VI, Sec. 690(b)(6), Dec. 8, 1993, 107
Stat. 2223.
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, referred to in subsec. (c)(4)(B)(ii), is Pub. L.
96-510, Dec. 11, 1980, 94 Stat. 2767, as amended, which is classified
principally to chapter 103 (Sec. 9601 et seq.) of Title 42, The Public
Health and Welfare. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of Title 42 and Tables.
The Oil Pollution Act of 1990, referred to in subsecs. (c)(5)(B),
(d)(2)(H), and (j)(5)(G), is Pub. L. 101-380, Aug. 18, 1990, 104 Stat.
484, which is classified principally to chapter 40 (Sec. 2701 et seq.)
of this title. Title I of the Act is classified generally to subchapter
I (Sec. 2701 et seq.) of chapter 40 of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 2701 of this title and Tables.
Codification
August 18, 1990, referred to in subsec. (j)(6), was in the original
``the date of enactment of this section'', which was translated as
meaning the date of enactment of Pub. L. 101-380, which enacted subsec.
(j)(2) to (8), to reflect the probable intent of Congress.
Amendments
1998--Subsec. (a)(2). Pub. L. 105-383, Sec. 411(b), substituted ``,
(C)'' for ``and (C)'' and inserted ``, and (D) discharges incidental to
mechanical removal authorized by the President under subsection (c) of
this section'' before semicolon at end.
Subsec. (a)(8). Pub. L. 105-383, Sec. 411(a)(1), substituted ``to
prevent, minimize, or mitigate damage'' for ``to minimize or mitigate
damage''.
Subsec. (a)(25). Pub. L. 105-383, Sec. 411(a)(2), added par. (25).
Subsec. (c)(4)(A). Pub. L. 105-383, Sec. 411(a)(3), inserted
``relating to a discharge or a substantial threat of a discharge of oil
or a hazardous substance'' before period at end.
1996--Subsec. (b)(1), (2)(A), (3). Pub. L. 104-208 substituted
``Magnuson-Stevens Fishery'' for ``Magnuson Fishery'' wherever
appearing.
Subsec. (c)(3)(B). Pub. L. 104-324, Sec. 1144, inserted ``, except
that the owner or operator may deviate from the applicable response plan
if the President or the Federal On-Scene Coordinator determines that
deviation from the response plan would provide for a more expeditious or
effective response to the spill or mitigation of its environmental
effects'' before period at end.
Subsec. (j)(2)(A). Pub. L. 104-324, Sec. 1143(1), inserted ``and of
information regarding previous spills, including data from universities,
research institutions, State governments, and other nations, as
appropriate, which shall be disseminated as appropriate to response
groups and area committees, and'' after ``paragraph (4),''.
Subsec. (j)(4)(C)(v). Pub. L. 104-324, Sec. 1143(2), inserted
``compile a list of local scientists, both inside and outside Federal
Government service, with expertise in the environmental effects of
spills of the types of oil typically transported in the area, who may be
contacted to provide information or, where appropriate, participate in
meetings of the scientific support team convened in response to a spill,
and'' before ``describe''.
1992--Subsec. (b)(12). Pub. L. 102-388 added par. (12).
Subsec. (i). Pub. L. 102-572 substituted ``United States Court of
Federal Claims'' for ``United States Claims Court''.
1990--Subsec. (a)(8). Pub. L. 101-380, Sec. 4201(b)(1)[(c)(1)],
inserted ``containment and'' after ``refers to''.
Subsec. (a)(16). Pub. L. 101-380, Sec. 4201(b)(2)[(c)(2)],
substituted semicolon for period at end.
Subsec. (a)(17). Pub. L. 101-380, Sec. 4201(b)(3)[(c)(3)],
substituted ``otherwise'' for ``Otherwise'' and semicolon for period at
end.
Subsec. (a)(18) to (24). Pub. L. 101-380, Sec. 4201(b)(4)[(c)(4)],
added pars. (18) to (24).
Subsec. (b)(4). Pub. L. 101-380, Sec. 4204, inserted ``or the
environment'' after ``the public health or welfare''.
Subsec. (b)(5). Pub. L. 101-380, Sec. 4301(a), inserted after first
sentence ``The Federal agency shall immediately notify the appropriate
State agency of any State which is, or may reasonably be expected to be,
affected by the discharge of oil or a hazardous substance.'',
substituted ``fined in accordance with title 18, United States Code, or
imprisoned for not more than 5 years, or both'' for ``fined not more
than $10,000, or imprisoned for not more than one year, or both'',
struck out ``or information obtained by the exploitation of such
notification'' before ``shall not be used'', and inserted ``natural''
before ``person in any''.
Subsec. (b)(6) to (11). Pub. L. 101-380, Sec. 4301(b), added pars.
(6) to (11) and struck out former par. (6) which related to assessment
of civil penalties, limited to $5,000 for each offense, against any
owner, operator, or person in charge of any onshore or offshore facility
from which oil or a hazardous substance was discharged in violation of
par. (3).
Subsec. (c). Pub. L. 101-380, Sec. 4201(a), amended subsec. (c)
generally, substituting present provisions for provisions authorizing
President to arrange for removal of discharge of oil or a hazardous
substance into or upon the navigable waters of the U.S., unless he
determined such removal would be properly conducted by owner or operator
of the vessel causing discharge, and directed President to prepare and
publish a National Contingency Plan within 60 days after October 18,
1972.
Subsec. (d). Pub. L. 101-380, Sec. 4201(b), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: ``Whenever a
marine disaster in or upon the navigable waters of the United States has
created a substantial threat of a pollution hazard to the public health
or welfare of the United States, including, but not limited to, fish,
shellfish, and wildlife and the public and private shorelines and
beaches of the United States, because of a discharge, or an imminent
discharge, of large quantities of oil, or of a hazardous substance from
a vessel the United States may (A) coordinate and direct all public and
private efforts directed at the removal or elimination of such threat;
and (B) summarily remove, and, if necessary, destroy such vessel by
whatever means are available without regard to any provisions of law
governing the employment of personnel or the expenditure of appropriated
funds. Any expense incurred under this subsection or under the
Intervention on the High Seas Act (or the convention defined in section
2(3) thereof) shall be a cost incurred by the United States Government
for the purposes of subsection (f) of this section in the removal of oil
or hazardous substance.''
Subsec. (e). Pub. L. 101-380, Sec. 4306, amended subsec. (e)
generally. Prior to amendment, subsec. (e) read as follows: ``In
addition to any other action taken by a State or local government, when
the President determines there is an imminent and substantial threat to
the public health or welfare of the United States, including, but not
limited to, fish, shellfish, and wildlife and public and private
property, shorelines, and beaches within the United States, because of
an actual or threatened discharge of oil or hazardous substance into or
upon the navigable waters of the United States from an onshore or
offshore facility, the President may require the United States attorney
of the district in which the threat occurs to secure such relief as may
be necessary to abate such threat, and the district courts of the United
States shall have jurisdiction to grant such relief as the public
interest and the equities of the case may require.''
Subsec. (i). Pub. L. 101-380, Sec. 2002(b)(1), struck out par. (1)
designation before ``In any case'' and struck out pars. (2) and (3)
which read as follows:
``(2) The provisions of this subsection shall not apply in any case
where liability is established pursuant to the Outer Continental Shelf
Lands Act, or the Deepwater Port Act of 1974.
``(3) Any amount paid in accordance with a judgment of the United
States Claims Court pursuant to this section shall be paid from the
funds established pursuant to subsection (k) of this section.''
Subsec. (j). Pub. L. 101-380, Sec. 4202(a), amended heading,
inserted heading for par. (1) and realigned its margin, added pars. (2)
to (8), and struck out former par. (2) which read as follows: ``Any
owner or operator of a vessel or an onshore facility or an offshore
facility and any other person subject to any regulation issued under
paragraph (1) of this subsection who fails or refuses to comply with the
provisions of any such regulations, shall be liable to a civil penalty
of not more than $5,000 for each such violation. This paragraph shall
not apply to any owner or operator of any vessel from which oil or a
hazardous substance is discharged in violation of paragraph (3)(ii) of
subsection (b) of this section unless such owner, operator, or person in
charge is otherwise subject to the jurisdiction of the United States.
Each violation shall be a separate offense. The President may assess and
compromise such penalty. No penalty shall be assessed until the owner,
operator, or other person charged shall have been given notice and an
opportunity for a hearing on such charge. In determining the amount of
the penalty, or the amount agreed upon in compromise, the gravity of the
violation, and the demonstrated good faith of the owner, operator, or
other person charged in attempting to achieve rapid compliance, after
notification of a violation, shall be considered by the President.''
Subsec. (k). Pub. L. 101-380, Sec. 2002(b)(2), struck out subsec.
(k) which authorized appropriations and supplemental appropriations to
create and maintain a revolving fund to carry out subsecs. (c), (d),
(i), and (l) of this section.
Subsec. (l). Pub. L. 101-380, Sec. 2002(b)(3), struck out after
first sentence ``Any moneys in the fund established by subsection (k) of
this section shall be available to such Federal departments, agencies,
and instrumentalities to carry out the provisions of subsections (c) and
(i) of this section.''
Subsec. (m). Pub. L. 101-380, Sec. 4305, amended subsec. (m)
generally. Prior to amendment, subsec. (m) read as follows: ``Anyone
authorized by the President to enforce the provisions of this section
may, except as to public vessels, (A) board and inspect any vessel upon
the navigable waters of the United States or the waters of the
contiguous zone, (B) with or without a warrant arrest any person who
violates the provisions of this section or any regulation issued
thereunder in his presence or view, and (C) execute any warrant or other
process issued by an officer or court of competent jurisdiction.''
Subsec. (o)(2). Pub. L. 101-380, Sec. 4202(c), inserted ``, or with
respect to any removal activities related to such discharge'' after
``within such State''.
Subsec. (p). Pub. L. 101-380, Sec. 2002(b)(4), struck out subsec.
(p) which provided for establishment and maintenance of evidence of
financial responsibility by vessels over 300 gross tons carrying oil or
hazardous substances.
Subsec. (s). Pub. L. 101-380, Sec. 2002(b)(5), added subsec. (s).
1987--Subsec. (a)(5). Pub. L. 100-4 substituted ``the Commonwealth
of the Northern Mariana Islands'' for ``the Canal Zone''.
1982--Subsec. (i)(1), (3). Pub. L. 97-164 substituted ``Claims
Court'' for ``Court of Claims''.
1980--Subsec. (b)(1), (2)(A), (3). Pub. L. 96-561 substituted
``Magnuson Fishery Conservation and Management Act'' for ``Fishery
Conservation and Management Act of 1976''.
Subsec. (b)(3)(A). Pub. L. 96-478 struck out ``of oil'' after ``in
the case of such discharges'' and substituted ``Protocol of 1978
Relating to the International Convention for the Prevention of Pollution
from Ships, 1973'' for ``International Convention for the Prevention of
Pollution of the Sea by Oil, 1954, as amended''.
Subsec. (c)(1). Pub. L. 96-561 substituted ``Magnuson Fishery
Conservation and Management Act'' for ``Fishery Conservation and
Management Act of 1976''.
Subsec. (k). Pub. L. 96-483 designated existing provisions as par.
(1) and added par. (2).
1978--Subsec. (a)(2). Pub. L. 95-576, Sec. 1(b)(1), excluded
discharges described in cls. (A) to (C) from term ``discharge''.
Subsec. (a)(17). Pub. L. 95-576, Sec. 1(b)(2), added par. (17).
Subsec. (b)(2)(B). Pub. L. 95-576, Sec. 1(b)(3), substituted
requirement that a study be made respecting methods, mechanisms, and
procedures for creating incentives to achieve higher standard of care in
management and movement of hazardous substances, including consideration
of enumerated items, and a report made to Congress within 18 months
after Nov. 2, 1978, for provisions concerning actual removability of any
designated hazardous substance, liability during two year period
commencing Oct. 18, 1972 based on toxicity, degradability, and dispersal
characteristics of the substance limited to $50,000 and without
limitation in cases of willful negligence or willful misconduct,
liability after such two year period ranging from $500 to $5,000 based
on toxicity, etc., or liability for penalty determined by number of
units discharged multiplied by amount established for the unit limited
to $5,000,000 in the case of a discharge from a vessel and to $500,000
in the case of a discharge from onshore or offshore facility,
establishment by regulation of a unit of measurement based upon the
usual trade practice for each designated hazardous substance and
establishment for such unit a fixed monetary amount ranging from $100 to
$1,000 based on toxicity, etc.
Subsec. (b)(3). Pub. L. 95-576, Sec. 1(b)(4), substituted ``such
quantities as may be harmful'' for ``harmful quantities''.
Subsec. (b)(4). Pub. L. 95-576, Sec. 1(b)(5), struck out ``, to be
issued as soon as possible after October 18, 1972,'' after
``regulation'' and substituted ``substances'' for ``substance'' and
``discharge of which may be harmful'' for ``discharge of which, at such
times, locations, circumstances, and conditions, will be harmful''.
Subsec. (b)(5). Pub. L. 95-576, Sec. 1(b)(6), inserted ``at the time
of the discharge'' after ``otherwise subject to the jurisdiction of the
United States''.
Subsec. (b)(6)(A) to (E). Pub. L. 95-576, Sec. 1(b)(7), designated
existing provisions as subpar. (A), inserted ``at the time of the
discharge'' after ``jurisdiction of the United States'', and added
subpars. (B) to (E).
1977--Subsec. (a)(11). Pub. L. 95-217, Sec. 58(k), inserted ``, and
any facility of any kind which is subject to the jurisdiction of the
United States and is located in, on, or under any other waters,'' after
``United States''.
Subsec. (a)(15), (16). Pub. L. 95-217, Sec. 58(d)(1), added pars.
(15) and (16).
Subsec. (b)(1). Pub. L. 95-217, Sec. 58(a)(1), inserted reference to
activities under the Outer Continental Shelf Lands Act or the Deepwater
Port Act of 1974, or which may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of the
United States (including resources under the Fishery Conservation and
Management Act of 1976).
Subsec. (b)(2)(A). Pub. L. 95-217, Sec. 58(a)(2), inserted reference
to activities under the Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974, or which may affect natural resources
belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the Fishery
Conservation and Management Act of 1976).
Subsec. (b)(2)(B)(v). Pub. L. 95-217, Sec. 57, added cl. (v).
Subsec. (b)(3). Pub. L. 95-217, Sec. 58(a)(3), (4), designated part
of existing provisions preceding cl. (A) as cl. (i) and added cl. (ii),
and, in cl. (A), inserted ``or which may affect natural resources
belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the Fishery
Conservation and Management Act of 1976)'' after ``waters of the
contiguous zone'' and struck out ``article IV of'' before ``the
International Convention for the Prevention of Pollution of the Sea by
Oil, 1954''.
Subsec. (b)(4). Pub. L. 95-217, Sec. 58(a)(5), struck out provisions
under which, in the case of the discharge of oil into or upon the waters
of the contiguous zone, only those discharges which threatened the
fishery resources of the contiguous zone or threatened to pollute or
contribute to the pollution of the territory or the territorial sea of
the United States could be determined to be harmful.
Subsec. (b)(5). Pub. L. 95-217, Sec. 58(a)(6), added cls. (A), (B),
and (C) between ``Any such person'' and ``who fails to notify''.
Subsec. (b)(6). Pub. L. 95-217, Sec. 58(a)(7), (8), substituted
``Any owner, operator, or person in charge of any onshore facility, or
offshore facility'' for ``Any owner or operator of any vessel, onshore
facility, or offshore facility'' in provision relating to violations of
par. (3) of this subsection, and inserted provisions directing the
assessment of a civil penalty of not more than $5,000 for each offense
by the Secretary of the department in which the Coast Guard is operating
to be assessed against any owner, operator, or person in charge of any
vessel from which oil or a hazardous substance is discharged in
violation of paragraph (3)(i) of this subsection, and any owner,
operator, or person in charge of a vessel from which oil or a hazardous
substance is discharged in violation of paragraph (3)(ii) who is
otherwise subject to the jurisdiction of the United States.
Subsec. (c)(1). Pub. L. 95-217, Sec. 58(b), (c)(1), inserted ``or
there is a substantial threat of such discharge,'' after ``Whenever any
oil or a hazardous substance is discharged,'' and ``or in connection
with activities under the Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974, or which may affect natural resources
belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the Fishery
Conservation and Management Act of 1976)'' after ``waters of the
contiguous zone,''.
Subsec. (c)(2)(D). Pub. L. 95-217, Sec. 58(e), substituted ``and
imminent threats of such discharges to the appropriate State and Federal
agencies;'' for ``to the appropriate Federal agency;''.
Subsec. (d). Pub. L. 95-217, Sec. 58(c)(2), inserted ``or under the
Intervention on the High Seas Act (or the convention defined in section
2(3) thereof)'' after ``Any expense incurred under this subsection''.
Subsec. (f)(1). Pub. L. 95-217, Sec. 58(d)(2), substituted ``, in
the case of an inland oil barge $125 per gross ton of such barge, or
$125,000, whichever is greater, and in the case of any other vessel,
$150 per gross ton of such vessel (or, for a vessel carrying oil or
hazardous substances as cargo, $250,000), whichever is greater,'' for
``$100 per gross ton of such vessel or $14,000,000, whichever is
lesser,''.
Subsec. (f)(2), (3). Pub. L. 95-217, Sec. 58(d)(5), (6), substituted
``$50,000,000'' for ``$8,000,000''.
Subsec. (f)(4), (5). Pub. L. 95-217, Sec. 58(g), added pars. (4) and
(5).
Subsec. (g). Pub. L. 95-217, Sec. 58(d)(3), (f), substituted ``, in
the case of an inland oil barge $125 per gross ton of such barge, or
$125,000, whichever is greater, and in the case of any other vessel,
$150 per gross ton of such vessel (or, for a vessel carrying oil or
hazardous substances as cargo, $250,000), whichever is greater'' for
``$100 per gross ton of such vessel or $14,000,000, whichever is the
lesser'' in the existing provisions and inserted provision under which,
where the owner or operator of a vessel (other than an inland oil barge)
carrying oil or hazardous substances as cargo or an onshore or offshore
facility which handles or stores oil or hazardous substances in bulk,
from which oil or a hazardous substance is discharged in violation of
subsec. (b) of this section, alleges that the discharge was caused
solely by an act or omission of a third party, the owner or operator
must pay to the United States Government the actual costs incurred under
subsec. (c) of this section for removal of the oil or substance and
shall be entitled by subrogation to all rights of the United States
Government to recover the costs from the third party under this
subsection.
Subsec. (i)(2). Pub. L. 95-217, Sec. 58(m), inserted reference to
the Deepwater Port Act of 1974.
Subsec. (j)(2). Pub. L. 95-217, Sec. 58(c)(3), inserted provision
that subsec. (j)(2) shall not apply to any owner or operator of any
vessel from which oil or a hazardous substance is discharged in
violation of subsec. (b)(3)(ii) of this section unless the owner,
operator, or person in charge is otherwise subject to the jurisdiction
of the United States.
Subsec. (k). Pub. L. 95-217, Sec. 58(l), substituted ``such sums as
may be necessary to maintain such fund at a level of $35,000,000'' for
``not to exceed $35,000,000''.
Subsec. (p)(1). Pub. L. 95-217, Sec. 58(d)(4), substituted ``, in
the case of an inland oil barge $125 per gross ton of such barge, or
$125,000, whichever is greater, and in the case of any other vessel,
$150 per gross ton of such vessel (or, for a vessel carrying oil or
hazardous substances as cargo, $250,000), whichever is greater,'' for
``$100 per gross ton, or $14,000,000 whichever is the lesser,''.
Subsecs. (q), (r). Pub. L. 95-217, Sec. 58(i), added subsecs. (q)
and (r).
1973--Subsec. (f). Pub. L. 93-207, Sec. 1(4)(A), (B), substituted
``(b)(3)'' for ``(b)(2)'' wherever appearing in pars. (1) to (3), and
substituted ``Administrator'' for ``Secretary'' in last sentence of par.
(2).
Subsecs. (g), (i). Pub. L. 93-207, Sec. 1(4)(C), substituted
``(b)(3)'' for ``(b)(2)'' wherever appearing.
Effective Date of 1996 Amendment
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L. 104-208
provided that the amendment made by that section is effective 15 days
after Oct. 11, 1996.
Effective Date of 1992 Amendment
Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
911 of Pub. L. 102-572, set out as a note under section 171 of Title 28,
Judiciary and Judicial Procedure.
Effective Date of 1990 Amendment
Amendment by Pub. L. 101-380 applicable to incidents occurring after
Aug. 18, 1990, see section 1020 of Pub. L. 101-380, set out as an
Effective Date note under section 2701 of this title.
Effective Date of 1982 Amendment
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of Title 28,
Judiciary and Judicial Procedure.
Effective Date of 1980 Amendments
Section 238(b) of Pub. L. 96-561 provided that the amendment made by
that section is effective 15 days after Dec. 22, 1980.
Amendment by Pub. L. 96-478 effective Oct. 2, 1983, see section
14(a) of Pub. L. 96-478, set out as an Effective Date note under section
1901 of this title.
Effective Date of 1977 Amendment
Section 58(h) of Pub. L. 95-217 provided that: ``The amendments made
by paragraphs (5) and (6) of subsection (d) of this section [amending
this section] shall take effect 180 days after the date of enactment of
the Clean Water Act of 1977 [Dec. 27, 1977].''
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the
Coast Guard, including the authorities and functions of the Secretary of
Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections 468(b), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department of
Homeland Security Reorganization Plan of November 25, 2002, as modified,
set out as a note under section 542 of Title 6.
Enforcement functions of Administrator or other official of the
Environmental Protection Agency under this section relating to spill
prevention, containment and countermeasure plans with respect to pre-
construction, construction, and initial operation of transportation
system for Canadian and Alaskan natural gas were transferred to the
Federal Inspector, Office of Federal Inspector for the Alaska Natural
Gas Transportation System, until the first anniversary of the date of
initial operation of the Alaska Natural Gas Transportation System, see
Reorg. Plan No. 1 of 1979, Secs. 102(a), 203(a), 44 F.R. 33663, 33666,
93 Stat. 1373, 1376, effective July 1, 1979, set out in the Appendix to
Title 5, Government Organization and Employees. Office of Federal
Inspector for the Alaska Natural Gas Transportation System abolished and
functions and authority vested in Inspector transferred to Secretary of
Energy by section 3012(b) of Pub. L. 102-486, set out as an Abolition of
Office of Federal Inspector note under section 719e of Title 15,
Commerce and Trade.
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note
set out preceding section 1681 of Title 48, Territories and Insular
Possessions.
Termination of United States District Court for the District of the
Canal Zone
For termination of the United States District Court for the District
of the Canal Zone at end of the ``transition period'', being the 30-
month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982,
see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and
sections 2101 and 2201 to 2203 of Pub. L. 96-70, title II, Sept. 27,
1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to
3843, respectively, of Title 22, Foreign Relations and Intercourse.
Report on Oil Spill Responder Immunity
Pub. L. 107-295, title IV, Sec. 440, Nov. 25, 2002, 116 Stat. 2130,
provided that:
``(a) Report to Congress.--Not later than January 1, 2004, the
Secretary of the department in which the Coast Guard is operating,
jointly with the Secretary of Commerce and the Secretary of the
Interior, and after consultation with the Administrator of the
Environmental Protection Agency and the Attorney General, shall submit a
report to the Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Transportation and Infrastructure of the
House of Representatives on the immunity from criminal and civil
penalties provided under existing law of a private responder (other than
a responsible party) in the case of the incidental take of federally
listed fish or wildlife that results from, but is not the purpose of,
carrying out an otherwise lawful activity conducted by that responder
during an oil spill removal activity where the responder was acting in a
manner consistent with the National Contingency Plan or as otherwise
directed by the Federal On-Scene Coordinator for the spill, and on the
circumstances under which such penalties have been or could be imposed
on a private responder. The report shall take into consideration the
procedures under the Inter-Agency Memorandum for addressing incidental
takes.
``(b) Definitions.--In this section--
``(1) the term `Federal On-Scene Coordinator' has the meaning
given that term in section 311 of the Federal Water Pollution
Control Act (33 U.S.C. 1321);
``(2) the term `incidental take' has the meaning given that term
in the Inter-Agency Memorandum;
``(3) the term `Inter-Agency Memorandum' means the Inter-Agency
Memorandum of Agreement Regarding Oil Spill Planning and Response
Activities under the Federal Water Pollution Control Act's National
Oil and Hazardous Substances Pollution Contingency Plan and the
Endangered Species Act [of 1973, 16 U.S.C. 1531 et seq.], effective
on July 22, 2001;
``(4) the terms `National Contingency Plan', `removal', and
`responsible party' have the meanings given those terms under
section 1001 of the Oil Pollution Act of 1990 (33 U.S.C. 2701); and
``(5) the term `private responder' means a nongovernmental
entity or individual that is carrying out an oil spill removal
activity at the direction of a Federal agency or a responsible
party.''
Oil Spill Liability Under Oil Pollution Act of 1990
Section 2002(a) of Pub. L. 101-380 provided that: ``Subsections (f),
(g), (h), and (i) of section 311 of the Federal Water Pollution Control
Act (33 U.S.C. 1321) shall not apply with respect to any incident for
which liability is established under section 1002 of this Act [33 U.S.C.
2702].''
Transfer of Moneys to Oil Spill Liability Trust Fund
Section 2002(b)(2) of Pub. L. 101-380 provided that: ``Subsection
(k) [of this section] is repealed. Any amounts remaining in the
revolving fund established under that subsection shall be deposited in
the [Oil Spill Liability Trust] Fund. The Fund shall assume all
liability incurred by the revolving fund established under that
subsection.''
Revision of National Contingency Plan
Section 4201(c)[(d)] of Pub. L. 101-380 provided that: ``Not later
than one year after the date of the enactment of this Act [Aug. 18,
1990], the President shall revise and republish the National Contingency
Plan prepared under section 311(c)(2) of the Federal Water Pollution
Control Act [33 U.S.C. 1321(c)(2)] (as in effect immediately before the
date of the enactment of this Act) to implement the amendments made by
this section and section 4202 [amending this section].''
Implementation of National Planning and Response System
Section 4202(b) of Pub. L. 101-380 provided that:
``(1) Area committees and contingency plans.--(A) Not later than 6
months after the date of the enactment of this Act [Aug. 18, 1990], the
President shall designate the areas for which Area Committees are
established under section 311(j)(4) of the Federal Water Pollution
Control Act [33 U.S.C. 1321(j)(4)], as amended by this Act. In
designating such areas, the President shall ensure that all navigable
waters, adjoining shorelines, and waters of the exclusive economic zone
are subject to an Area Contingency Plan under that section.
``(B) Not later than 18 months after the date of the enactment of
this Act, each Area Committee established under that section shall
submit to the President the Area Contingency Plan required under that
section.
``(C) Not later than 24 months after the date of the enactment of
this Act, the President shall--
``(i) promptly review each plan;
``(ii) require amendments to any plan that does not meet the
requirements of section 311(j)(4) of the Federal Water Pollution
Control Act; and
``(iii) approve each plan that meets the requirements of that
section.
``(2) National response unit.--Not later than one year after the
date of the enactment of this Act, the Secretary of the department in
which the Coast Guard is operating shall establish a National Response
Unit in accordance with section 311(j)(2) of the Federal Water Pollution
Control Act, as amended by this Act.
``(3) Coast guard district response groups.--Not later than 1 year
after the date of the enactment of this Act, the Secretary of the
department in which the Coast Guard is operating shall establish Coast
Guard District Response Groups in accordance with section 311(j)(3) of
the Federal Water Pollution Control Act, as amended by this Act.
``(4) Tank vessel and facility response plans; transition provision;
effective date of prohibition.--(A) Not later than 24 months after the
date of the enactment of this Act, the President shall issue regulations
for tank vessel and facility response plans under section 311(j)(5) of
the Federal Water Pollution Control Act, as amended by this Act.
``(B) During the period beginning 30 months after the date of the
enactment of this paragraph [Aug. 18, 1990] and ending 36 months after
that date of enactment, a tank vessel or facility for which a response
plan is required to be prepared under section 311(j)(5) of the Federal
Water Pollution Control Act, as amended by this Act, may not handle,
store, or transport oil unless the owner or operator thereof has
submitted such a plan to the President.
``(C) Subparagraph (E) of section 311(j)(5) of the Federal Water
Pollution Control Act, as amended by this Act, shall take effect 36
months after the date of the enactment of this Act.''
Deposit of Certain Penalties Into Oil Spill Liability Trust Fund
Penalties paid pursuant to this section and sections 1319(c) and
1501 et seq. of this title to be deposited in the Oil Spill Liability
Trust Fund created under section 9509 of Title 26, Internal Revenue
Code, see section 4304 of Pub. L. 101-380, set out as a note under
section 9509 of Title 26.
Allowable Delay in Establishing Financial Responsibility for Increase in
Amounts Under 1977 Amendment
Section 58(j) of Pub. L. 95-217 provided that: ``No vessel subject
to the increased amounts which result from the amendments made by
subsections (d)(2), (d)(3), and (d)(4) of this section [amending this
section] shall be required to establish any evidence of financial
responsibility under section 311(p) of the Federal Water Pollution
Control Act [subsec. (p) of this section] for such increased amounts
before October 1, 1978.''
Territorial Sea and Contiguous Zone of United States
For extension of territorial sea and contiguous zone of United
States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as
notes under section 1331 of Title 43, Public Lands.
Executive Order No. 11735
Ex. Ord. No. 11735, Aug. 3, 1973, 38 F.R. 21243, as amended by Ex.
Ord. No. 12418, May 5, 1983, 48 F.R. 20891, which assigned functions of
the President regarding water pollution, was revoked by Ex. Ord. No.
12777, Sec. 8(i), Oct. 18, 1991, 56 F.R. 54769, set out below.
Executive Order No. 12418
Ex. Ord. No. 12418, May 5, 1983, 48 F.R. 20891, which transferred
certain functions relating to the financial responsibility of vessels
for water pollution and established authority of Federal agencies to
respond to discharges or substantial threats of discharges of oil and
hazardous substances, was revoked by Ex. Ord. No. 12777, Sec. 8(i), Oct.
18, 1991, 56 F.R. 54769, set out below.
Ex. Ord. No. 12777. Implementation of This Section and Oil Pollution Act
of 1990
Ex. Ord. No. 12777, Oct. 18, 1991, 56 F.R. 54757, as amended by Ex.
Ord. No. 13286, Sec. 34, Feb. 28, 2003, 68 F.R. 10625, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including Section 311 of the
Federal Water Pollution Control Act, (``FWPCA'') (33 U.S.C. 1321), as
amended by the Oil Pollution Act of 1990 (Public Law 101-380) (``OPA''),
and by Section 301 of Title 3 of the United States Code, it is hereby
ordered as follows:
Section 1. National Contingency Plan, Area Committees, and Area
Contingency Plans. (a) Section 1 of Executive Order No. 12580 of January
23, 1987 [42 U.S.C. 9615 note], is amended to read as follows:
``Section 1. National Contingency Plan. (a)(1) The National
Contingency Plan (``the NCP''), shall provide for a National Response
Team (``the NRT'') composed of representatives of appropriate Federal
departments and agencies for national planning and coordination of
preparedness and response actions, and Regional Response Teams as the
regional counterparts to the NRT for planning and coordination of
regional preparedness and response actions.
``(2) The following agencies (in addition to other appropriate
agencies) shall provide representatives to the National and Regional
Response Teams to carry out their responsibilities under the NCP:
Department of State, Department of Defense, Department of Justice,
Department of the Interior, Department of Agriculture, Department of
Commerce, Department of Labor, Department of Health and Human Services,
Department of Transportation, Department of Energy, Environmental
Protection Agency, Federal Emergency Management Agency, United States
Coast Guard, and the Nuclear Regulatory Commission.
``(3) Except for periods of activation because of response action,
the representative of the Environmental Protection Agency (``EPA'')
shall be the chairman, and the representative of the United States Coast
Guard shall be the vice chairman, of the NRT and these agencies'
representatives shall be co-chairs of the Regional Response Teams (``the
RRTs''). When the NRT or an RRT is activated for a response action, the
EPA representative shall be the chairman when the release or threatened
release or discharge or threatened discharge occurs in the inland zone,
and the United States Coast Guard representative shall be the chairman
when the release or threatened release or discharge or threatened
discharge occurs in the coastal zone, unless otherwise agreed upon by
the EPA and the United States Coast Guard representatives (inland and
coastal zones are defined in the NCP).
``(4) The RRTs may include representatives from State governments,
local governments (as agreed upon by the States), and Indian tribal
governments. Subject to the functions and authorities delegated to
Executive departments and agencies in other sections of this order, the
NRT shall provide policy and program direction to the RRTs.
``(b)(1) The responsibility for the revision of the NCP and all the
other functions vested in the President by Sections 105(a), (b), (c),
and (g), 125, and 301(f) of the Act, by Section 311(d)(1) of the Federal
Water Pollution Control Act, and by Section 4201(c) of the Oil Pollution
Act of 1990 is delegated to the Administrator of the Environmental
Protection Agency (``the Administrator'').
``(2) The function vested in the President by Section 118(p) of the
Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499)
(``SARA'') is delegated to the Administrator.
``(c) In accord with Section 107(f)(2)(A) of the Act, Section
311(f)(5) of the Federal Water Pollution Control Act, as amended (33
U.S.C. 1321(f)(5)), and Section 1006(b)(1) and (2) of the Oil Pollution
Act of 1990, the following shall be among those designated in the NCP as
Federal trustees for natural resources:
[``](1) Secretary of Defense;
[``](2) Secretary of the Interior;
[``](3) Secretary of Agriculture;
[``](4) Secretary of Commerce;
[``](5) Secretary of Energy.
[``]In the event of a spill, the above named Federal trustees for
natural resources shall designate one trustee to act as Lead
Administrative Trustee, the duties of which shall be defined in the
regulations promulgated pursuant to Section 1006(e)(1) of OPA. If there
are natural resource trustees other than those designated above which
are acting in the event of a spill, those other trustees may join with
the Federal trustees to name a Lead Administrative Trustee which shall
exercise the duties defined in the regulations promulgated pursuant to
Section 1006(e)(1) of OPA.
``(d) Revisions to the NCP shall be made in consultation with
members of the NRT prior to publication for notice and comment.
``(e) All revisions to the NCP, whether in proposed or final form,
shall be subject to review and approval by the Director of the Office of
Management and Budget (``OMB'').''
(b) The functions vested in the President by Section 311(j)(4) of
FWPCA, and Section 4202(b)(1) of OPA [set out as a note above],
respecting the designation of Areas, the appointment of Area Committee
members, the requiring of information to be included in Area Contingency
Plans, and the review and approval of Area Contingency Plans are
delegated to the Administrator of the Environmental Protection Agency
(``Administrator'') for the inland zone and the Secretary of the
Department in which the Coast Guard is operating for the coastal zone
(inland and coastal zones are defined in the NCP).
Sec. 2. National Response System. (a) The functions vested in the
President by Section 311(j)(1)(A) of FWPCA, respecting the establishment
of methods and procedures for the removal of discharged oil and
hazardous substances, and by Section 311(j)(1)(B) of FWPCA respecting
the establishment of criteria for the development and implementation of
local and regional oil and hazardous substance removal contingency
plans, are delegated to the Administrator for the inland zone and the
Secretary of the Department in which the Coast Guard is operating for
the coastal zone.
(b)(1) The functions vested in the President by Section 311(j)(1)(C)
of FWPCA, respecting the establishment of procedures, methods, and
equipment and other requirements for equipment to prevent and to contain
discharges of oil and hazardous substances from non-transportation-
related onshore facilities, are delegated to the Administrator.
(2) The functions vested in the President by Section 311(j)(1)(C) of
FWPCA, respecting the establishment of procedures, methods, and
equipment and other requirements for equipment to prevent and to contain
discharges of oil and hazardous substances from vessels and
transportation-related onshore facilities and deepwater ports subject to
the Deepwater Ports [Port] Act of 1974 (``DPA'') [33 U.S.C. 1501 et
seq.], are delegated to the Secretary of Transportation and the
Secretary of the Department in which the Coast Guard is operating.
(3) The functions vested in the President by Section 311(j)(1)(C) of
FWPCA, respecting the establishment of procedures, methods, and
equipment and other requirements for equipment to prevent and to contain
discharges of oil and hazardous substances from offshore facilities,
including associated pipelines, other than deepwater ports subject to
the DPA, are delegated to the Secretary of the Interior.
(c) The functions vested in the President by Section 311(j)(1)(D) of
FWPCA, respecting the inspection of vessels carrying cargoes of oil and
hazardous substances and the inspection of such cargoes, are delegated
to the Secretary of the Department in which the Coast Guard is
operating.
(d)(1) The functions vested in the President by Section 311(j)(5) of
FWPCA and Section 4202(b)(4) of OPA [set out as a note above],
respecting the issuance of regulations requiring the owners or operators
of non-transportation-related onshore facilities to prepare and submit
response plans, the approval of means to ensure the availability of
private personnel and equipment, the review and approval of such
response plans, and the authorization of non-transportation-related
onshore facilities to operate without approved response plans, are
delegated to the Administrator.
(2) The functions vested in the President by Section 311(j)(5) of
FWPCA and Section 4202(b)(4) of OPA, respecting the issuance of
regulations requiring the owners or operators of tank vessels,
transportation-related onshore facilities and deepwater ports subject to
the DPA, to prepare and submit response plans, the approval of means to
ensure the availability of private personnel and equipment, the review
and approval of such response plans, and the authorization of tank
vessels, transportation-related onshore facilities and deepwater ports
subject to the DPA to operate without approved response plans, are
delegated to the Secretary of Transportation and the Secretary of the
Department in which the Coast Guard is operating.
(3) The functions vested in the President by Section 311(j)(5) of
FWPCA and Section 4202(b)(4) of OPA, respecting the issuance of
regulations requiring the owners or operators of offshore facilities,
including associated pipelines, other than deepwater ports subject to
the DPA, to prepare and submit response plans, the approval of means to
ensure the availability of private personnel and equipment, the review
and approval of such response plans, and the authorization of offshore
facilities, including associated pipelines, other than deepwater ports
subject to the DPA, to operate without approved response plans, are
delegated to the Secretary of the Interior.
(e)(1) The functions vested in the President by Section 311(j)(6)(A)
of FWPCA, respecting the requirements for periodic inspections of
containment booms and equipment used to remove discharges at non-
transportation-related onshore facilities, are delegated to the
Administrator.
(2) The functions vested in the President by Section 311(j)(6)(A) of
FWPCA, respecting the requirements for periodic inspections of
containment booms and equipment used to remove discharges on vessels,
and at transportation-related onshore facilities and deepwater ports
subject to the DPA, are delegated to the Secretary of the Department in
which the Coast Guard is operating.
(3) The functions vested in the President by Section 311(j)(6)(A) of
FWPCA, respecting the requirements for periodic inspections of
containment booms and equipment used to remove discharges at offshore
facilities, including associated pipelines, other than deepwater ports
subject to the DPA, are delegated to the Secretary of the Interior.
(f) The functions vested in the President by Section 311(j)(6)(B) of
FWPCA, respecting requirements for vessels to carry appropriate removal
equipment, are delegated to the Secretary of the Department in which the
Coast Guard is operating.
(g)(1) The functions vested in the President by Section 311(j)(7) of
FWPCA, respecting periodic drills of removal capability under relevant
response plans for onshore and offshore facilities located in the inland
zone, and the publishing of annual reports on those drills, are
delegated to the Administrator.
(2) The functions vested in the President by Section 311(j)(7) of
FWPCA, respecting periodic drills of removal capability under relevant
response plans for tank vessels, and for onshore and offshore facilities
located in the coastal zone, and the publishing of annual reports on
those drills, are delegated to the Secretary of the Department in which
the Coast Guard is operating.
(h) No provision of Section 2 of this order, including, but not
limited to, any delegation or assignment of any function hereunder,
shall in any way affect, or be construed or interpreted to affect the
authority of any Department or agency, or the head of any Department or
agency under any provision of law other than Section 311(j) of FWPCA or
Section 4202(b)(4) of OPA.
(i) The functions vested in the President by Section 311(j) of FWPCA
or Section 4202(b)(4) of OPA which have been delegated or assigned by
Section 2 of this order may be redelegated to the head of any Executive
department or agency with his or her consent.
Sec. 3. Removal. The functions vested in the President by Section
311(c) of FWPCA and Section 1011 of OPA [33 U.S.C. 2711], respecting an
effective and immediate removal or arrangement for removal of a
discharge and mitigation or prevention of a substantial threat of a
discharge of oil or a hazardous substance, the direction and monitoring
of all Federal, State and private actions, the removal and destruction
of a vessel, the issuance of directions, consulting with affected
trustees, and removal completion determinations, are delegated to the
Administrator for the inland zone and to the Secretary of the Department
in which the Coast Guard is operating for the coastal zone.
Sec. 4. Liability Limit Adjustment. (a) The functions vested in the
President by Section 1004(d) of OPA [33 U.S.C. 2704(d)], respecting the
establishment of limits of liability, with respect to classes or
categories of non-transportation-related onshore facilities, the
reporting to Congress on the desirability of adjusting limits of
liability with respect to non-transportation-related onshore facilities,
and the adjustment of limits of liability to reflect significant
increases in the Consumer Price Index with respect to non-
transportation-related onshore facilities, are delegated to the
Administrator, acting in consultation with the Secretary of
Transportation, the Secretary of Energy, and the Attorney General.
(b) The functions vested in the President by Section 1004(d) of OPA,
respecting the establishment of limits of liability, with respect to
classes or categories of transportation-related onshore facilities, the
reporting to Congress on the desirability of adjusting limits of
liability, with respect to vessels or transportation-related onshore
facilities and deepwater ports subject to the DPA, and the adjustment of
limits of liability to reflect significant increases in the Consumer
Price Index with respect to vessels or transportation-related onshore
facilities and deepwater ports subject to the DPA, are delegated to the
Secretary of Transportation.
(c) The functions vested in the President by Section 1004(d) of OPA,
respecting the reporting to Congress on the desirability of adjusting
limits of liability with respect to offshore facilities, including
associated pipelines, other than deepwater ports subject to the DPA, and
the adjustment of limits of liability to reflect significant increases
in the Consumer Price Index with respect to offshore facilities,
including associated pipelines, other than deepwater ports subject to
the DPA, are delegated to the Secretary of the Interior.
Sec. 5. Financial Responsibility. (a)(1) The functions vested in the
President by Section 1016(e) of OPA [33 U.S.C. 2716(e)], respecting (in
the case of offshore facilities other than deepwater ports) the issuance
of regulations concerning financial responsibility, the determination of
acceptable methods of financial responsibility, and the specification of
necessary or unacceptable terms, conditions, or defenses, are delegated
to the Secretary of the Interior.
(2) The functions vested in the President by Section 1016(e) of OPA,
respecting (in the case of deepwater ports) the issuance of regulations
concerning financial responsibility, the determination of acceptable
methods of financial responsibility, and the specification of necessary
or unacceptable terms, conditions, or defenses, are delegated to the
Secretary of the Department in which the Coast Guard is operating.
(b)(1) The functions vested in the President by Section 4303 of OPA
[33 U.S.C. 2716a], respecting (in cases involving vessels) the
assessment of civil penalties, the compromising, modification or
remission, with or without condition, and the referral for collection of
such imposed penalties, and requests to the Attorney General to secure
necessary judicial relief, are delegated to the Secretary of the
Department in which the Coast Guard is operating.
(2) The functions vested in the President by Section 4303 of OPA,
respecting (in cases involving offshore facilities other than deepwater
ports) the assessment of civil penalties, the compromising, modification
or remission, with or without condition, and the referral for collection
of such imposed penalties, and requests to the Attorney General to
secure necessary judicial relief, are delegated to the Secretary of the
Interior.
(3) The functions vested in the President by Section 4303 of OPA,
respecting (in cases involving deepwater ports) the assessment of civil
penalties, the compromising, modification or remission, with or without
condition, and the referral for collection of such imposed penalties,
and requests to the Attorney General to secure necessary judicial
relief, are delegated to the Secretary of the Department in which the
Coast Guard is operating.
Sec. 6. Enforcement. (a) The functions vested in the President by
Section 311(m)(1) of FWPCA, respecting the enforcement of Section 311
with respect to vessels, are delegated to the Secretary of the
Department in which the Coast Guard is operating.
(b) The functions vested in the President by Section 311(e) of
FWPCA, respecting determinations of imminent and substantial threat,
requesting the Attorney General to secure judicial relief, and other
action including issuing administrative orders, are delegated to the
Administrator for the inland zone and to the Secretary of the Department
in which the Coast Guard is operating for the coastal zone.
Sec. 7. Management of the Oil Spill Liability Trust Fund and Claims.
(a)(1)(A) The functions vested in the President by Section 1012(a)(1),
(3), and (4) of OPA [33 U.S.C. 2712(a)(1), (3), (4)] respecting payment
of removal costs and claims and determining consistency with the
National Contingency Plan (NCP) are delegated to the Secretary of the
Department in which the Coast Guard is operating.
(B) The functions vested in the President by Section 6002(b) of the
OPA [33 U.S.C. 2752(b)] respecting making amounts, not to exceed
$50,000,000 and subject to normal budget controls, in any fiscal year,
available from the Fund (i) to carry out Section 311(c) of FWPCA, and
(ii) to initiate the assessment of natural resources damages required
under Section 1006 of OPA [33 U.S.C. 2706] are delegated to the
Secretary of the Department in which the Coast Guard is operating. Such
Secretary shall make amounts available from the Fund to initiate the
assessment of natural resources damages exclusively to the Federal
trustees designated in the NCP. Such Federal trustees shall allocate
such amounts among all trustees required to assess natural resources
damages under Section 1006 of OPA.
(2) The functions vested in the President by Section 1012(a)(2) of
OPA [33 U.S.C. 2712(a)(2)], respecting the payment of costs and
determining consistency with the NCP, are delegated to the Federal
trustees designated in the NCP.
(3) The functions vested in the President by Section 1012(a)(5) of
OPA, respecting the payment of costs and expenses of departments and
agencies having responsibility for the implementation, administration,
and enforcement of the Oil Pollution Act of 1990 and subsections (b),
(c), (d), (j) and (l) of Section 311 of FWPCA, are delegated to each
head of such department and agency.
(b) The functions vested in the President by Section 1012(c) of OPA,
respecting designation of Federal officials who may obligate money, are
delegated to each head of the departments and agencies to whom functions
have been delegated under section 7(a) of this order for the purpose of
carrying out such functions.
(c)(1) The functions vested in the President by Section 1012(d) and
(e) of OPA, respecting the obligation of the Trust Fund on the request
of a Governor or pursuant to an agreement with a State, entrance into
agreements with States, agreement upon terms and conditions, and the
promulgation of regulations concerning such obligation and entrance into
such agreement, are delegated to the Secretary of the Department in
which the Coast Guard is operating, in consultation with the
Administrator.
(2) The functions vested in the President by Section 1013(e) of OPA
[33 U.S.C. 2713(e)], respecting the promulgation and amendment of
regulations for the presentation, filing, processing, settlement, and
adjudication of claims under OPA against the Trust Fund, are delegated
to the Secretary of the Department in which the Coast Guard is
operating, in consultation with the Attorney General.
(3) The functions vested in the President by Section 1012(a) of OPA,
respecting the payment of costs, damages, and claims, delegated herein
to the Secretary of the Department in which the Coast Guard is
operating, include, inter alia, the authority to process, settle, and
administratively adjudicate such costs, damages, and claims, regardless
of amount.
(d)(1) The Coast Guard is designated the ``appropriate agency'' for
the purpose of receiving the notice of discharge of oil or hazardous
substances required by Section 311(b)(5) of FWPCA, and the Secretary of
the Department in which the Coast Guard is operating is authorized to
issue regulations implementing this designation.
(2) The functions vested in the President by Section 1014 of OPA [33
U.S.C. 2714], respecting designation of sources of discharges or
threats, notification to responsible parties, promulgation of
regulations respecting advertisements, the advertisement of designation,
and notification of claims procedures, are delegated to the Secretary of
the Department in which the Coast Guard is operating.
Sec. 8. Miscellaneous. (a) The functions vested in the President by
Section 311(b)(3) and (4) of FWPCA, as amended by the Oil Pollution Act
of 1990, respecting the determination of quantities of oil and any
hazardous substances the discharge of which may be harmful to the public
health or welfare or the environment and the determinations of
quantities, time, locations, circumstances, or conditions, which are not
harmful, are delegated to the Administrator.
(b) The functions vested in the President by Section 311(d)(2)(G) of
FWPCA, respecting schedules of dispersant, chemical, and other spill
mitigating devices or substances, are delegated to the Administrator.
(c) The functions vested in the President by Section 1006(b)(3) and
(4) of OPA [33 U.S.C. 2706(b)(3), (4)] respecting the receipt of
designations of State and Indian tribe trustees for natural resources
are delegated to the Administrator.
(d) The function vested in the President by Section 3004 of OPA [104
Stat. 508], with respect to encouraging the development of an
international inventory of equipment and personnel, is delegated to the
Secretary of the Department in which the Coast Guard is operating, in
consultation with the Secretary of State.
(e) The functions vested in the President by Section 4113 of OPA
[104 Stat. 516], respecting a study on the use of liners or other
secondary means of containment for onshore facilities, and the
implementation of the recommendations of the study, are delegated to the
Administrator.
(f) The function vested in the President by Section 5002(c)(2)(D) of
OPA [33 U.S.C. 2732(c)(2)(D)], respecting the designating of an employee
of the Federal Government who shall represent the Federal Government on
the Oil Terminal Facilities and Oil Tanker Operations Associations, is
delegated to the Secretary of the Department in which the Coast Guard is
operating.
(g) The functions vested in the President by Section 5002(o) of OPA,
respecting the annual certification of alternative voluntary advisory
groups, are delegated to the Secretary of the Department in which the
Coast Guard is operating.
(h) The function vested in the President by Section 7001(a)(3) of
OPA [33 U.S.C. 2761(a)(3)], respecting the appointment of Federal
agencies to membership on the Interagency Coordinating Committee on Oil
Pollution Research, is delegated to the Secretary of the Department in
which the Coast Guard is operating.
(i) Executive Order No. 11735 of August 3, 1973, Executive Order No.
12123 of February 26, 1979, Executive Order No. 12418 of May 5, 1983 and
the memorandum of August 24, 1990, delegating certain authorities of the
President under the Oil Pollution Act of 1990 are revoked.
Sec. 9. Consultation. Authorities and functions delegated or
assigned by this order shall be exercised subject to consultation with
the Secretaries of departments and the heads of agencies with statutory
responsibilities which may be significantly affected, including, but not
limited to, the Department of Justice.
Sec. 10. Litigation. (a) Notwithstanding any other provision of this
order, any representation pursuant to or under this order in any
judicial proceedings shall be by or through the Attorney General. The
conduct and control of all litigation arising under the Oil Pollution
Act of 1990 [see Short Title note set out under section 2701 of this
title] shall be the responsibility of the Attorney General.
(b) Notwithstanding any other provision of this order, the authority
under the Oil Pollution Act of 1990 to require the Attorney General to
commence litigation is retained by the President.
(c) Notwithstanding any other provision of this order, the
Secretaries of the Departments of Transportation, Commerce, Interior,
Agriculture, the Secretary of the Department in which the Coast Guard is
operating, and/or the Administrator of the Environmental Protection
Agency may request that the Attorney General commence litigation under
the Oil Pollution Act of 1990.
(d) The Attorney General, in his discretion, is authorized to
require that, with respect to a particular oil spill, an agency refrain
from taking administrative enforcement action without first consulting
with the Attorney General.
Section Referred to in Other Sections
This section is referred to in sections 1266, 1314, 1318, 1319,
1322, 1376, 1402, 2701, 2702, 2703, 2704, 2712, 2735, 2752 of this
title; title 8 section 1288; title 14 section 690; title 26 sections
9507, 9509; title 42 sections 6991b, 7412, 9601, 9602, 9605, 9606, 9607,
9611, 9651, 9652, 9654, 10601; title 43 sections 1356a, 1653, 1656;
title 46 sections 2101, 3715.
