TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT
HEAD
Sec. 1321. Oil and hazardous substance liability
STATUTE
(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;
(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;
(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; and
(26) "nontank vessel" means a self-propelled vessel that -
(A) is at least 400 gross tons as measured under section
14302 of title 46 or, for vessels not measured under that
section, as measured under section 14502 of that title;
(B) is not a tank vessel;
(C) carries oil of any kind as fuel for main propulsion; and
(D) operates on the navigable waters of the United States, as
defined in section 2101(17a) of that title.
(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 60105 of title 46;
(B) a permit to proceed under section 4367 of the Revised
Statutes of the United States (46 U.S.C. App. 313); (!2) and
(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, nontank vessel, and facility response plans
(A)(i) The President shall issue regulations which require an
owner or operator of a tank vessel or facility described in
subparagraph (C) 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.
(ii) The President shall also issue regulations which require
an owner or operator of a nontank vessel 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.
(B) The Secretary of the Department in which the Coast Guard is
operating may issue regulations which require an owner or
operator of a tank vessel, a nontank vessel, or a facility
described in subparagraph (C) that transfers noxious liquid
substances in bulk to or from a vessel to prepare and submit to
the Secretary a plan for responding, to the maximum extent
practicable, to a worst case discharge, and to a substantial
threat of such a discharge, of a noxious liquid substance that is
not designated as a hazardous substance or regulated as oil in
any other law or regulation. For purposes of this paragraph, the
term "noxious liquid substance" has the same meaning when that
term is used in the MARPOL Protocol described in section
1901(a)(3) (!2) of this title.
(C) The tank vessels, nontank vessels, and facilities referred
to in subparagraphs (A) and (B) are the following:
(i) A tank vessel, as defined under section 2101 of title 46.
(ii) A nontank vessel.
(iii) An offshore facility.
(iv) 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.
(D) 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.
(E) 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, nontank 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;
(iv) review each plan periodically thereafter; and
(v) in the case of a plan for a nontank vessel, consider any
applicable State-mandated response plan in effect on August 9,
2004, and ensure consistency to the extent practicable.
(F) A tank vessel, nontank 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, nontank vessel, offshore
facility, or onshore facility for which a response plan is
reviewed by the President under subparagraph (E), the plan has
been approved by the President; and
(ii) the vessel or facility is operating in compliance with
the plan.
(G) Notwithstanding subparagraph (E), the President may
authorize a tank vessel, nontank 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,
nontank 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.
(H) The owner or operator of a tank vessel, nontank 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.
(I) 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 and nontank vessel that is a vessel of the
United States.
(6) Equipment requirements and inspection
The President may 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, and nontank vessels
carrying oil of any kind as fuel for main propulsion, 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, nontank 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.
SOURCE
(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; Pub. L. 108-293, title VII, Sec.
701(a), (b), (d), Aug. 9, 2004, 118 Stat. 1067, 1068; Pub. L. 109-
241, title VI, Sec. 608, title IX, Sec. 901(i), July 11, 2006, 120
Stat. 558, 564.)
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 4367 of the Revised Statutes of the United States (46
U.S.C. App. 313), 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)(H), 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.
Par. (3) of section 1901(a) of this title, referred to in subsec.
(j)(5)(B), was redesignated par. (4) by Pub. L. 110-280, Sec. 3(1),
July 21, 2008, 122 Stat. 2611.
CODIFICATION
In subsec. (b)(12)(A), "section 60105 of title 46" substituted
for "section 4197 of the Revised Statutes of the United States (46
U.S.C. App. 91)" on authority of Pub. L. 109-304, Sec. 18(c), Oct.
6, 2006, 120 Stat. 1709, which Act enacted section 60105 of Title
46, Shipping.
AMENDMENTS
2006 - Subsec. (a)(26). Pub. L. 109-241, Sec. 608, amended par.
(26) generally. Prior to amendment, par. (26) read as follows: "
'nontank vessel' means a self-propelled vessel of 400 gross tons as
measured under section 14302 of title 46 or greater, other than a
tank vessel, that carries oil of any kind as fuel for main
propulsion and that -
"(A) is a vessel of the United States; or
"(B) operates on the navigable waters of the United States."
Subsec. (j)(5)(A)(ii), (B), (F), and (G). Pub. L. 109-241, Sec.
901(i)(1), substituted "nontank" for "non-tank" wherever appearing.
Subsec. (j)(5)(H). Pub. L. 109-241, Sec. 901(i)(2), amended
directory language of Pub. L. 108-293, Sec. 701(b)(9). See 2004
Amendment note below.
2004 - Subsec. (a)(26). Pub. L. 108-293, Sec. 701(a), added par.
(26).
Subsec. (j)(5). Pub. L. 108-293, Sec. 701(b)(1), inserted ",
nontank vessel," after "vessel" in heading.
Subsec. (j)(5)(A). Pub. L. 108-293, Sec. 701(b)(2), (d)(3),
designated existing text as cl. (i), substituted "subparagraph (C)"
for "subparagraph (B)", and added cl. (ii).
Subsec. (j)(5)(B). Pub. L. 108-293, Sec. 701(d)(2), added subpar.
(B). Former subpar. (B) redesignated (C).
Pub. L. 108-293, Sec. 701(b)(3), (4), inserted ", nontank
vessels," after "vessels" in introductory provisions, added cl.
(ii), and redesignated former cls. (ii) and (iii) as (iii) and
(iv), respectively.
Subsec. (j)(5)(C). Pub. L. 108-293, Sec. 701(d)(1), (4),
redesignated subpar. (B) as (C) and substituted "subparagraphs (A)
and (B)" for "subparagraph (A)" in introductory provisions. Former
subpar. (C) redesignated (D).
Subsec. (j)(5)(D). Pub. L. 108-293, Sec. 701(d)(1), redesignated
subpar. (C) as (D). Former subpar (D) redesignated (E).
Pub. L. 108-293, Sec. 701(b)(5), inserted ", nontank vessel,"
after "vessel" in introductory provisions and added cl. (v).
Subsec. (j)(5)(E). Pub. L. 108-293, Sec. 701(d)(1), redesignated
subpar. (D) as (E). Former subpar. (E) redesignated (F).
Pub. L. 108-293, Sec. 701(b)(6), inserted "non-tank vessel,"
after "vessel," in two places.
Subsec. (j)(5)(F). Pub. L. 108-293, Sec. 701(d)(1), (5),
redesignated subpar. (E) as (F) and substituted "subparagraph (E),"
for "subparagraph (D)," in cl. (i). Former subpar. (F) redesignated
(G).
Pub. L. 108-293, Sec. 701(b)(7), inserted "non-tank vessel,"
after "vessel," and substituted "vessel, non-tank vessel, or" for
"vessel or".
Subsec. (j)(5)(G). Pub. L. 108-293, Sec. 701(d)(1), redesignated
subpar. (F) as (G). Former subpar. (G) redesignated (H).
Pub. L. 108-293, Sec. 701(b)(8), inserted "nontank vessel," after
"vessel,".
Subsec. (j)(5)(H). Pub. L. 108-293, Sec. 701(d)(1), redesignated
subpar. (G) as (H). Former subpar. (H) redesignated (I).
Pub. L. 108-293, Sec. 701(b)(9), as amended by Pub. L. 109-241,
Sec. 901(i)(2), inserted "and nontank vessel" after "each tank
vessel".
Subsec. (j)(5)(I). Pub. L. 108-293, Sec. 701(d)(1), redesignated
subpar. (H) as (I).
Subsec. (j)(6). Pub. L. 108-293, Sec. 701(b)(10), substituted
"The President may require - " for "Not later than 2 years after
August 18, 1990, the President shall require - " in introductory
provisions.
Subsec. (j)(6)(B). Pub. L. 108-293, Sec. 701(b)(11), inserted ",
and nontank vessels carrying oil of any kind as fuel for main
propulsion," after "cargo".
Subsec. (j)(7). Pub. L. 108-293, Sec. 701(b)(12), inserted ",
nontank vessel," after "vessel".
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 2006 AMENDMENT
Pub. L. 109-241, title IX, Sec. 901(i)(2), July 11, 2006, 120
Stat. 564, provided in part that the amendment made by section
901(i)(2) is effective Aug. 9, 2004.
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. Functions and authority
vested in Secretary of Energy subsequently transferred to Federal
Coordinator for Alaska Natural Gas Transportation Projects by
section 720d(f) of Title 15.
DELEGATION OF FUNCTIONS
For delegation of certain functions of President under this
section, see Ex. Ord. No. 12580, Jan. 23, 1987, 52 F.R. 2923, as
amended, set out as a note under section 9615 of Title 42, The
Public Health and Welfare.
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.
IMPLEMENTATION DATE FOR VESSEL RESPONSE PLANS FOR NONTANK VESSELS
Pub. L. 108-293, title VII, Sec. 701(c), Aug. 9, 2004, 118 Stat.
1068, provided that: "No later than one year after the date of
enactment of this Act [Aug. 9, 2004], the owner or operator of a
nontank vessel (as defined [sic] section 311(j)(9) [311(a)(26)] of
the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(9)
[1321(a)(26)], as amended by this section) shall prepare and submit
a vessel response plan for such vessel."
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]."
[For delegation of functions of President under section 4201(c)
of Pub. L. 101-380, set out above, see Ex. Ord. No. 12580, Jan. 23,
1987, 52 F.R. 2923, as amended, set out as a note under section
9615 of Title 42, The Public Health and Welfare.]
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.
FOOTNOTE
(!1) So in original.
(!2) See References in Text note below.
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