§ 1845. — Claims procedure.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 43USC1845]
TITLE 43--PUBLIC LANDS
CHAPTER 36--OUTER CONTINENTAL SHELF RESOURCE MANAGEMENT
SUBCHAPTER II--FISHERMEN'S CONTINGENCY FUND
Sec. 1845. Claims procedure
(a) Filing requirement; time to file
Any commercial fisherman suffering damages compensable under this
subchapter may file a claim for compensation with the Secretary under
subsection (d)(1) of this section.
(b) Transmittal of copy of claim to Secretary of the Interior; reference
to Secretary
Upon receipt of any claim under this section, the Secretary shall
transmit a copy of the claim to the Secretary of the Interior and shall
take such further action regarding the claim that is required under
subsection (d) of this section.
(c) Notification to persons engaged in activities associated with Outer
Continental Shelf energy activities; response of persons
notified; submittal of evidence
The Secretary of the Interior shall make reasonable efforts to
notify all persons known to have engaged in activities associated with
Outer Continental Shelf energy activity in the vicinity. Each such
person shall promptly notify the Secretary and the Secretary of the
Interior as to whether he admits or denies responsibility for the
damages claimed. Any such person, including lessees or permittees or
their contractors or subcontractors, may submit evidence at any
proceeding conducted with respect to such claim.
(d) Acceptance of claim by Secretary; time to render decision; review of
initial determination
(1) The Secretary shall, under regulations prescribed pursuant to
section 1843(a) of this title, specify the time, form and manner in
which claims must be filed.
(2) The Secretary may not accept any claim that does not meet the
filing requirements specified under paragraph (1), and shall give a
claimant whose claim is not accepted written notice of the reasons for
nonacceptance. Such written notice must be given to the claimant within
30 days after the date on which the claim was filed and if the claimant
does not refile an acceptable claim within 30 days after the date of
such written notice, the claimant is not eligible for compensation under
this subchapter for the damages concerned; except that the Secretary--
(A) shall in any case involving a good faith effort by the
claimant to meet such filing requirements, or
(B) may in any case involving extenuating circumstances, accept
a claim that does not meet the 30-day refiling requirement.
(3)(A) The Secretary shall make an initial determination with
respect to the claim within 60 days after the day on which the claim is
accepted for filing. Within 30 days after the day on which the Secretary
issues an initial determination on a claim, the claimant, or any other
interested person who submitted evidence relating to the initial
determination, may petition the Secretary for a review of that
determination.
(B) If a petition for the review of an initial determination is not
filed with the Secretary within the 30-day period provided under
subparagraph (A), the initial determination shall thereafter be treated
as a final determination by the Secretary on the claim involved.
(C) If a petition for review of an initial determination is timely
filed under subparagraph (A), the Secretary shall allow the petitioner
30 days after the day on which the petition is received to submit
written or oral evidence relating to the initial determination. The
Secretary shall then undertake such review and, on the basis of such
review, issue a final determination no later than the 60th day after the
day on which the Secretary received the petition for review of an
initial determination.
(e) Claim preparation fees; attorney's fees
If the decision of the Secretary under subsection (d) of this
section is in favor of the commercial fisherman filing the claim, the
Secretary, as a part of the amount awarded, shall include reasonable
claim preparation fees and reasonable attorney's fees, if any, incurred
by the claimant in pursuing the claim.
(f) Powers of Secretary
(1) For purposes of any proceeding conducted pursuant to this
section, the Secretary shall have the power to administer oaths and
subpena the attendance or testimony of witnesses and the production of
books, records, and other evidence relative or pertinent to the issues
being presented for determination.
(2) In any proceeding conducted pursuant to this section with
respect to a claim for damages resulting from activities on any area of
the Outer Continental Shelf, the Secretary shall consider evidence of
obstructions in such area which have been identified pursuant to the
survey conducted under section 1847 \1\ of this title.
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\1\ See References in Text note below.
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(g) Place of proceeding
Any proceeding conducted with respect to an initial determination on
a claim under subsection (d)(3)(A) of this section shall be conducted
within such United States judicial district as may be mutually agreeable
to the claimant and the Secretary or, if no agreement can be reached,
within the United States judicial district in which the home port of the
claimant is located.
(h) Certification and disbursement of award; subrogation of rights;
payment of costs of proceedings
(1) The amount awarded in an initial determination by the Secretary
under subsection (d) of this section shall be immediately disbursed,
subject to the limitations of this section, by the Secretary if the
claimant--
(A) states in writing that he will not petition for review of
the initial determination; and
(B) enters into an agreement with the Secretary to repay to the
Secretary all or any part of the amount of the award if, after
review under subsection (d)(3)(C) of this section or, if applicable,
after judicial review, the amount of the award, or any part thereof,
is not sustained.
(2) Upon payment of a claim by the Secretary pursuant to this
subsection, the Secretary shall acquire by subrogation all rights of the
claimant against any person found to be responsible for the damages with
respect to which such claim was made. Any moneys recovered by the
Secretary through subrogation shall be deposited into the Fund.
(3) Any person who denies responsibility for damages with respect to
which a claim is made and who is subquently \2\ found to be responsible
for such damages, and any commercial fisherman who files a claim for
damages and who is subsequently found to be responsible for such
damages, shall pay the costs of the proceedings under this section with
respect to such claim.
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\2\ So in original. Probably should be ``subsequently''.
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(i) Judicial review
Any claimant or other person who suffers a legal wrong or who is
adversely affected or aggrieved by a final determination of the
Secretary under subsection (d) of this section, may, no later than 30
days after such determination is made, seek judicial review of the
determination in the United States district court for such United States
judicial district as may be mutually agreeable to the parties concerned
or, if no agreement can be reached, in the United States district court
for the United States judicial district in which is located the home
port of the claimant.
(Pub. L. 95-372, title IV, Sec. 405, Sept. 18, 1978, 92 Stat. 688; Pub.
L. 97-212, Sec. 5, June 30, 1982, 96 Stat. 145; Pub. L. 98-498, title
IV, Sec. 420(3), (4), Oct. 19, 1984, 98 Stat. 2309, 2310.)
References in Text
Section 1847 of this title, referred to in subsec. (f)(2), was
repealed by Pub. L. 97-212, Sec. 6(a), June 30, 1982, 96 Stat. 147.
Amendments
1984--Subsec. (a). Pub. L. 98-498 substituted ``under subsection
(d)(1) of this section'' for ``, except that no such claim may be filed
more than 60 days after the date of discovery of the damages with
respect to which such claim is made''.
Subsec. (d)(1). Pub. L. 98-498 inserted ``time,'' before ``form''.
1982--Subsec. (b). Pub. L. 97-212, Sec. 5(1), struck out pars. (1)
and (2) designations, and substituted ``shall take such further action
regarding the claim that is required under subsection (d) of this
section'' for ``refer such matter to a hearing examiner appointed under
section 3105 of title 5''.
Subsec. (c). Pub. L. 97-212, Sec. 5(2), substituted ``proceeding''
for ``hearing''.
Subsec. (d). Pub. L. 97-212, Sec. 5(3), substituted provisions
relating to the filing of claims with the Secretary of the Interior in
order to be eligible for compensation under this subchapter, the time
for such filing, the time in which the Secretary must make his initial
determination with respect to the claim, and the submission of evidence
by the petitioner when reviewing an initial determination by the
Secretary, for provisions relating to the time in which a hearing
examiner has to render a decision.
Subsec. (e). Pub. L. 97-212, Sec. 5(4), substituted provisions that
if the decision of the Secretary is in favor of the commercial fisherman
filing the claim, the Secretary shall award to such claimant reasonable
attorney's fees and claim preparation fees incurred by claimant in
pursuing such claim for provisions that upon a decision in favor of the
claimant fisherman, the hearing examiner include in the award reasonable
attorney's fees incurred by the claimant in pursuing such claim.
Subsec. (f). Pub. L. 97-212, Sec. 5(5), substituted ``the
Secretary'' for ``hearing examiner'' and ``proceeding'' for ``hearing''
wherever appearing. The amendment which directed the substitution of
``the Secretary'' for ``hearing examiner'' was executed by substituting
``the Secretary'' for ``the hearing examiner'', as the probable intent
of Congress, to avoid repeating the article ``the'' before ``Secretary''
in two places.
Subsec. (g). Pub. L. 97-212, Sec. 5(6), substituted ``Any proceeding
conducted with respect to an initial determination on a claim under
subsection (d)(3)(A) of this section shall be conducted within such
United States judicial district as may be mutually agreeable to the
claimant and the Secretary or, if no agreement can be reached, within
the United States judicial district in which the home port of the
claimant is located'' for ``A hearing conducted under this section shall
be conducted within the United States judicial district within which the
matter giving rise to the claim occurred, or, if such matter occurred
within two or more districts, in any of the affected districts, or, if
such matter occurred outside of any district, in the nearest district''.
Subsec. (h)(1). Pub. L. 97-212, Sec. 5(7)(A), substituted provisions
that the amount awarded in an initial determination by the Secretary
under subsec. (d) be immediately disbursed by the Secretary if the
claimant states in writing that he will not petition for review of the
initial determination and he enters into an agreement with the Secretary
to repay to the Secretary all or any part of the award that is not
sustained upon later judicial review for provisions that upon a decision
of the hearing examiner and in absence of judicial review, any amount to
be paid would be certified to the Secretary who would promptly disburse
the award and that such decision of the hearing examiner was not
reviewable by the Secretary.
Subsec. (h)(2). Pub. L. 97-212, Sec. 5(7)(B), inserted provision
that any moneys recovered by the Secretary through subrogation shall be
deposited into the Fund.
Subsec. (i). Pub. L. 97-212, Sec. 5(8), substituted ``Any claimant
or other person who suffers a legal wrong or who is adversely affected
or aggrieved by a final determination of the Secretary under subsection
(d) of this section, may, no later than 30 days after such determination
is made, seek judicial review of the determination in the United States
district court for such United States judicial district as may be
mutually agreeable to the parties concerned or, if no agreement can be
reached, in the United States district court for the United States
judicial district in which is located the home port of the claimant''
for ``Any person who suffers legal wrong or who is adversely affected or
aggrieved by the decision of a hearing examiner under this section may,
no later than 60 days after such decision is made, seek judicial review
of such decision in the United States court of appeals for the circuit
in which the damage occurred, or if such damage occurred outside of any
circuit, in the United States court of appeals for the nearest
circuit''.
Effective Date of 1982 Amendment
Amendment by Pub. L. 97-212 applicable with respect to claims for
damages filed on or after June 30, 1982, with the Secretary of Commerce
under section 1845(a) of this title, with provision for the refiling of
previously filed claims under certain circumstances, see section 9 of
Pub. L. 97-212, set out as a note under section 1841 of this title.
Compensation for Certain Fishing Vessel and Gear Damage; Application
Authority to owners or operators of fishing vessels and commercial
fishermen failing to make application for compensation within the time
limitations of this section or section 1980 of Title 22, Foreign
Relations and Intercourse, to make application for compensation within
the 60-day period beginning on Dec. 22, 1980, see section 240(a), (b)(1)
of Pub. L. 96-561, title II, Dec. 22, 1980, 94 Stat. 3300, set out as a
note under section 1980 of Title 22.
Section Referred to in Other Sections
This section is referred to in section 1842 of this title.
