StatA_csm-snprm

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

tice of such default, such person shall forfeit to
the United States the sum of $1,000 for each and
every day of the continuance of such failure,
which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United
States in the district court of the United States
where such person has his principal office or in
any district in which he does business. The Administrator may upon application therefor
remit or mitigate any forfeiture provided for
under this subsection.
(e) Compensation of board members
Board members, other than officers or employees of Federal, State, or local governments,
shall be for each day (including travel-time)
during which they are performing board business, entitled to receive compensation at a rate
fixed by the Administrator but not in excess of
the maximum rate of pay for grade GS–18, as
provided in the General Schedule under section
5332 of title 5, and shall, notwithstanding the
limitations of sections 5703 and 5704 of title 5, be
fully reimbursed for travel, subsistence and related expenses.
(f) Enforcement proceedings
When any such recommendation adopted by
the Administrator involves the institution of
enforcement proceedings against any person to
obtain the abatement of pollution subject to
such recommendation, the Administrator shall
institute such proceedings if he believes that the
evidence warrants such proceedings. The district
court of the United States shall consider and determine de novo all relevant issues, but shall receive in evidence the record of the proceedings
before the conference or hearing board. The
court shall have jurisdiction to enter such judgment and orders enforcing such judgment as it
deems appropriate or to remand such proceedings to the Administrator for such further action as it may direct.
(June 30, 1948, ch. 758, title III, § 310, as added
Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 860.)
REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY
RATES
References in laws to the rates of pay for GS–16, 17,
or 18, or to maximum rates of pay under the General
Schedule, to be considered references to rates payable
under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)]
of Pub. L. 101–509, set out in a note under section 5376
of Title 5.

§ 1321. Oil and hazardous substance liability
(a) Definitions
For the purpose of this section, the term—
(1) ‘‘oil’’ means oil of any kind or in any
form, including, but not limited to, petroleum,
fuel oil, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil;
(2) ‘‘discharge’’ includes, but is not limited
to, any spilling, leaking, pumping, pouring,
emitting, emptying or dumping, but excludes
(A) discharges in compliance with a permit
under section 1342 of this title, (B) discharges
resulting from circumstances identified and
reviewed and made a part of the public record

§ 1321

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;
1 So

in original.

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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.

Page 422

(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

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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,

§ 1321

may be assessed a class I or class II civil penalty by the Secretary of the department in
which the Coast Guard is operating, the Secretary of Transportation, 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

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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

Page 424

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

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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

§ 1321

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—
2 See

References in Text note below.

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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.

Page 426

(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 caseby-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

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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

§ 1321

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

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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.

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(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

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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;

§ 1321

(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.

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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.

Page 430

(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—

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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

§ 1321

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, § 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, the
Secretary of Transportation, 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, the
Secretary of Transportation, or the Secretary of the Department in which the Coast
Guard is operating or an authorized rep-

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

resentative 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

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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, § 2002(b)(4),
Aug. 18, 1990, 104 Stat. 507
(q) Establishment of maximum limit of liability
with respect to onshore or offshore facilities
The President is authorized to establish, with
respect to any class or category of onshore or
offshore facilities, a maximum limit of liability
under subsections (f)(2) and (3) of this section of
less than $50,000,000, but not less than $8,000,000.
(r) Liability limitations not to limit liability
under other legislation
Nothing in this section shall be construed to
impose, or authorize the imposition of, any limitation on liability under the Outer Continental
Shelf Lands Act [43 U.S.C. 1331 et seq.] or the
Deepwater Port Act of 1974 [33 U.S.C. 1501 et
seq.].
(s) Oil Spill Liability Trust Fund
The Oil Spill Liability Trust Fund established
under section 9509 of title 26 shall be available to
carry out subsections (b), (c), (d), (j), and (l) of
this section as those subsections apply to discharges, and substantial threats of discharges,
of oil. Any amounts received by the United
States under this section shall be deposited in
the Oil Spill Liability Trust Fund.
(June 30, 1948, ch. 758, title III, § 311, as added
Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 862;
amended Pub. L. 93–207, § 1(4), Dec. 28, 1973, 87
Stat. 906; Pub. L. 95–217, §§ 57, 58(a)–(g), (i),
(k)–(m), Dec. 27, 1977, 91 Stat. 1593–1596; Pub. L.
95–576, § 1(b), Nov. 2, 1978, 92 Stat. 2467; Pub. L.
96–478, § 13(b), Oct. 21, 1980, 94 Stat. 2303; Pub. L.
96–483, § 8, Oct. 21, 1980, 94 Stat. 2362; Pub. L.
96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300;
Pub. L. 97–164, title I, § 161(5), Apr. 2, 1982, 96
Stat. 49; Pub. L. 100–4, title V, § 502(b), Feb. 4,
1987, 101 Stat. 75; Pub. L. 101–380, title II,
§ 2002(b), title IV, §§ 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, § 349, Oct. 6, 1992, 106 Stat. 1554;
Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992,
106 Stat. 4516; Pub. L. 104–208, div. A, title I,
§ 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat.
3009, 3009–41; Pub. L. 104–324, title XI, §§ 1143, 1144,
Oct. 19, 1996, 110 Stat. 3992; Pub. L. 105–383, title
IV, § 411, Nov. 13, 1998, 112 Stat. 3432; Pub. L.
108–293, title VII, § 701(a), (b), (d), Aug. 9, 2004, 118
Stat. 1067, 1068; Pub. L. 109–241, title VI, § 608,
title IX, § 901(i), July 11, 2006, 120 Stat. 558, 564;
Pub. L. 112–90, § 10, Jan. 3, 2012, 125 Stat. 1912.)
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 (§ 1331 et seq.) of chapter 29 of
Title 43, Public Lands. For complete classification of

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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 (§ 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
(§ 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, § 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,
§ 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,
§ 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 (§ 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 (§ 2701 et seq.) of this title. Title I of the Act
is classified generally to subchapter I (§ 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, § 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 App. U.S.C. 91)’’ on authority of Pub.
L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act
enacted section 60105 of Title 46, Shipping.
AMENDMENTS
2012—Subsec. (b)(6)(A). Pub. L. 112–90, § 10(b), substituted ‘‘operating, the Secretary of Transportation,
or’’ for ‘‘operating or’’ in concluding provisions.
Subsec. (m)(2)(A), (B). Pub. L. 112–90, § 10(a), which directed amendment of subpars. (A) and (B) by substituting ‘‘Administrator, the Secretary of Transportation,
or’’ for ‘‘Administrator or’’ was executed by making
the substitution the first place appearing in each subpar., to reflect the probable intent of Congress.

§ 1321

2006—Subsec. (a)(26). Pub. L. 109–241, § 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,
§ 901(i)(1), substituted ‘‘nontank’’ for ‘‘non-tank’’ wherever appearing.
Subsec. (j)(5)(H). Pub. L. 109–241, § 901(i)(2), amended
directory language of Pub. L. 108–293, § 701(b)(9). See
2004 Amendment note below.
2004—Subsec. (a)(26). Pub. L. 108–293, § 701(a), added
par. (26).
Subsec. (j)(5). Pub. L. 108–293, § 701(b)(1), inserted
‘‘, nontank vessel,’’ after ‘‘vessel’’ in heading.
Subsec. (j)(5)(A). Pub. L. 108–293, § 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, § 701(d)(2), added subpar. (B). Former subpar. (B) redesignated (C).
Pub. L. 108–293, § 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, § 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, § 701(d)(1), redesignated subpar. (C) as (D). Former subpar (D) redesignated (E).
Pub. L. 108–293, § 701(b)(5), inserted ‘‘, nontank vessel,’’ after ‘‘vessel’’ in introductory provisions and
added cl. (v).
Subsec. (j)(5)(E). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (D) as (E). Former subpar. (E) redesignated (F).
Pub. L. 108–293, § 701(b)(6), inserted ‘‘non-tank vessel,’’
after ‘‘vessel,’’ in two places.
Subsec. (j)(5)(F). Pub. L. 108–293, § 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, § 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, § 701(d)(1), redesignated subpar. (F) as (G). Former subpar. (G) redesignated (H).
Pub. L. 108–293, § 701(b)(8), inserted ‘‘nontank vessel,’’
after ‘‘vessel,’’.
Subsec. (j)(5)(H). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (G) as (H). Former subpar. (H) redesignated (I).
Pub. L. 108–293, § 701(b)(9), as amended by Pub. L.
109–241, § 901(i)(2), inserted ‘‘and nontank vessel’’ after
‘‘each tank vessel’’.
Subsec. (j)(5)(I). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (H) as (I).
Subsec. (j)(6). Pub. L. 108–293, § 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, § 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, § 701(b)(12), inserted
‘‘, nontank vessel,’’ after ‘‘vessel’’.
1998—Subsec. (a)(2). Pub. L. 105–383, § 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, § 411(a)(1), substituted
‘‘to prevent, minimize, or mitigate damage’’ for ‘‘to
minimize or mitigate damage’’.

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

Subsec. (a)(25). Pub. L. 105–383, § 411(a)(2), added par.
(25).
Subsec. (c)(4)(A). Pub. L. 105–383, § 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, § 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, § 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, § 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, § 4201(b)(1)[(c)(1)],
inserted ‘‘containment and’’ after ‘‘refers to’’.
Subsec. (a)(16). Pub. L. 101–380, § 4201(b)(2)[(c)(2)], substituted semicolon for period at end.
Subsec. (a)(17). Pub. L. 101–380, § 4201(b)(3)[(c)(3)], substituted ‘‘otherwise’’ for ‘‘Otherwise’’ and semicolon for
period at end.
Subsec.
(a)(18)
to
(24).
Pub.
L.
101–380,
§ 4201(b)(4)[(c)(4)], added pars. (18) to (24).
Subsec. (b)(4). Pub. L. 101–380, § 4204, inserted ‘‘or the
environment’’ after ‘‘the public health or welfare’’.
Subsec. (b)(5). Pub. L. 101–380, § 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, § 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, § 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, § 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 pub-

Page 434

lic 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, § 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, § 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, § 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, § 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, § 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 instru-

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

mentalities to carry out the provisions of subsections
(c) and (i) of this section.’’
Subsec. (m). Pub. L. 101–380, § 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, § 4202(c), inserted ‘‘, or
with respect to any removal activities related to such
discharge’’ after ‘‘within such State’’.
Subsec. (p). Pub. L. 101–380, § 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, § 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, § 1(b)(1), excluded
discharges described in cls. (A) to (C) from term ‘‘discharge’’.
Subsec. (a)(17). Pub. L. 95–576, § 1(b)(2), added par. (17).
Subsec. (b)(2)(B). Pub. L. 95–576, § 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, § 1(b)(4), substituted
‘‘such quantities as may be harmful’’ for ‘‘harmful
quantities’’.
Subsec. (b)(4). Pub. L. 95–576, § 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’’.

§ 1321

Subsec. (b)(5). Pub. L. 95–576, § 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, § 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, § 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, § 58(d)(1), added
pars. (15) and (16).
Subsec. (b)(1). Pub. L. 95–217, § 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, § 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, § 57, added cl. (v).
Subsec. (b)(3). Pub. L. 95–217, § 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, § 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, § 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, § 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, § 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, § 58(e), substituted
‘‘and imminent threats of such discharges to the appropriate State and Federal agencies;’’ for ‘‘to the appropriate Federal agency;’’.

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Subsec. (d). Pub. L. 95–217, § 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, § 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, § 58(d)(5), (6), substituted ‘‘$50,000,000’’ for ‘‘$8,000,000’’.
Subsec. (f)(4), (5). Pub. L. 95–217, § 58(g), added pars. (4)
and (5).
Subsec. (g). Pub. L. 95–217, § 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, § 58(m), inserted reference to the Deepwater Port Act of 1974.
Subsec. (j)(2). Pub. L. 95–217, § 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, § 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, § 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, § 58(i), added subsecs.
(q) and (r).
1973—Subsec. (f). Pub. L. 93–207, § 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, § 1(4)(C), substituted
‘‘(b)(3)’’ for ‘‘(b)(2)’’ wherever appearing.
EFFECTIVE DATE OF 2006 AMENDMENT
Pub. L. 109–241, title IX, § 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, § 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.

Page 436

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, §§ 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.

EFFECTIVE DATE OF 1992 AMENDMENT

TERMINATION OF UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF THE CANAL ZONE

Amendment by Pub. L. 102–572 effective Oct. 29, 1992,
see section 911 of Pub. L. 102–572, set out as a note

For termination of the United States District Court
for the District of the Canal Zone at end of the ‘‘transi-

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tion 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.
RULEMAKINGS
Pub. L. 111–281, title VII, § 701(a), (b), Oct. 15, 2010, 124
Stat. 2980, provided that:
‘‘(a) STATUS REPORT.—
‘‘(1) IN GENERAL.—Not later than 90 days after the
date of enactment of this Act [Oct. 15, 2010], the Secretary of the department in which the Coast Guard is
operating shall provide a report to the Senate Committee on Commerce, Science, and Transportation
and the House of Representatives Committee on
Transportation and Infrastructure on the status of all
Coast Guard rulemakings required or otherwise being
developed (but for which no final rule has been issued
as of the date of enactment of this Act) under section
311 of the Federal Water Pollution Control Act (33
U.S.C. 1321).
‘‘(2) INFORMATION REQUIRED.—The Secretary shall
include in the report required in paragraph (1)—
‘‘(A) a detailed explanation with respect to each
such rulemaking as to—
‘‘(i) what steps have been completed;
‘‘(ii) what areas remain to be addressed; and
‘‘(iii) the cause of any delays; and
‘‘(B) the date by which a final rule may reasonably be expected to be issued.
‘‘(b) FINAL RULES.—The Secretary shall issue a final
rule in each pending rulemaking described in subsection (a) as soon as practicable, but in no event later
than 18 months after the date of enactment of this
Act.’’
IMPLEMENTATION DATE FOR VESSEL RESPONSE PLANS
FOR NONTANK VESSELS
Pub. L. 108–293, title VII, § 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, § 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);

§ 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

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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,
§ 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, § 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, § 34, Feb. 28, 2003, 68 F.R.
10625, provided:

Page 438

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 trust-

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

ee 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 nontransportation-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 nontransportation-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.

§ 1321

(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

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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 nontransportation-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.

Page 440

(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

Page 441

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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 sub-

§ 1321a

ject 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.

§ 1321a. Prevention of small oil spills
(a) Prevention and education program
The Under Secretary of Commerce for Oceans
and Atmosphere, in consultation with the Secretary of the Department in which the Coast
Guard is operating and other appropriate agencies, shall establish an oil spill prevention and
education program for small vessels. The program shall provide for assessment, outreach,
and training and voluntary compliance activities to prevent and improve the effective response to oil spills from vessels and facilities
not required to prepare a vessel response plan
under the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.), including recreational
vessels, commercial fishing vessels, marinas,
and aquaculture facilities. The Under Secretary
may provide grants to sea grant colleges and institutes designated under section 1126 of this
title and to State agencies, tribal governments,
and other appropriate entities to carry out—
(1) regional assessments to quantify the
source, incidence and volume of small oil
spills, focusing initially on regions in the
country where, in the past 10 years, the incidence of such spills is estimated to be the
highest;
(2) voluntary, incentive-based clean marina
programs that encourage marina operators,
recreational boaters, and small commercial
vessel operators to engage in environmentally
sound operating and maintenance procedures
and best management practices to prevent or
reduce pollution from oil spills and other
sources;
(3) cooperative oil spill prevention education
programs that promote public understanding
of the impacts of spilled oil and provide useful
information and techniques to minimize pollution, including methods to remove oil and reduce oil contamination of bilge water, prevent
accidental spills during maintenance and refueling and properly cleanup and dispose of oil
and hazardous substances; and

§ 2103

TITLE 46—SHIPPING

Section 2102 contains a number of definitions that are
limited to recreational vessels in Chapter 43 of Part B
and the numbering of these vessels in Chapter 123 of
Part H.
AMENDMENTS
2006—Pub. L. 109–304 redesignated subsec. (b) as entire
section, substituted ‘‘west’’ for ‘‘West’’ and ‘‘east’’ for
‘‘East’’, and struck out subsec. (a) which defined ‘‘eligible State’’, ‘‘State’’, ‘‘United States’’, and ‘‘State recreational boating safety program’’ in chapters 37, 43, 51,
and 123 of this title and part I of this subtitle.
1990—Pub. L. 101–595 designated existing provisions as
subsec. (a) and added subsec. (b).
1986—Pub. L. 99–509 inserted reference to chapters 37
and 51.
1984—Par. (1). Pub. L. 98–369, § 1011(a)(1), struck out
‘‘and facilities improvement’’ after ‘‘recreational boating safety’’.
Par. (3). Pub. L. 98–369, § 1011(a)(2), (3), redesignated
par. (5) as (3) and struck out former par. (3) which defined a State recreational boating facilities improvement program.
Par. (4). Pub. L. 98–369, § 1011(a)(2), struck out par. (4)
which defined State recreational boating safety and facilities improvement program.
Par. (5). Pub. L. 98–369, § 1011(a)(3), redesignated par.
(5) as (3).

Page 26

§ 2104. Delegation
(a) The Secretary may delegate the duties and
powers conferred by this subtitle to any officer,
employee, or member of the Coast Guard, and
may provide for the subdelegation of those duties and powers.
(b) When this subtitle authorizes an officer or
employee of the Customs Service to act in place
of a Coast Guard official, the Secretary may designate that officer or employee subject to the
approval of the Secretary of the Treasury.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 506.)
HISTORICAL AND REVISION NOTES
Revised section
2104 ..............................................

Source section (U.S. Code)
46:65v(1)
46:382b
46:416
46:543
46:689

Section 2104 provides the Secretary with authority to
delegate duties and powers to others. It also contains
the authority to designate an officer or employee of the
United States Customs Service to act in the place of a
Coast Guard official.

EFFECTIVE DATE OF 1984 AMENDMENT

TRANSFER OF FUNCTIONS

Amendment by Pub. L. 98–369 effective Oct. 1, 1984, to
apply with respect to fiscal years beginning after Sept.
30, 1984, see section 1013 of Pub. L. 98–369, set out as a
note under section 13101 of this title.

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.
For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the
Department of the Treasury, including functions of the
Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 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.

§ 2103. Superintendence of the merchant marine
The Secretary has general superintendence
over the merchant marine of the United States
and of merchant marine personnel insofar as the
enforcement of this subtitle is concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of another official of the United States Government.
In the interests of marine safety and seamen’s
welfare, the Secretary shall enforce this subtitle
and shall carry out correctly and uniformly administer this subtitle. The Secretary may prescribe regulations to carry out the provisions of
this subtitle.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 506; Pub. L.
99–307, § 9, May 19, 1986, 100 Stat. 447.)
HISTORICAL AND REVISION NOTES
Revised section

Source section (U.S. Code)

2103 ..............................................

46:2
46:372
46:689

Section 2103 provides the Secretary with the authority to superintend the merchant marine and those involved personnel insofar as the vessels and personnel
are not subject, under other laws, to the supervision of
another official. The Secretary has the duty to enforce
the laws with respect to vessels and seamen and to
carry out correctly and uniformly these laws and regulations. The term ‘‘superintendence’’ is used to indicate
the Secretary’s broad responsibility for overseeing
maritime safety and seamen’s welfare, including employment, shipping, navigation, and protection of the
marine environment.
AMENDMENTS
1986—Pub. L. 99–307 substituted ‘‘subtitle. The Secretary may prescribe regulations to carry out the provisions of this subtitle’’ for ‘‘subtitle and regulations
prescribed under this subtitle’’.

§ 2105. Report
The Secretary shall provide for the investigation of the operation of this subtitle and of all
laws related to marine safety, and shall require
that a report be made to the Secretary annually
about those matters that may require improvement or amendment.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 506.)
HISTORICAL AND REVISION NOTES
Revised section
2105 ..............................................

Source section (U.S. Code)
46:4

Section 2105 requires the Secretary to investigate the
operation of this subtitle and all laws related to maritime safety and requires appropriate reports to ensure
that the Secretary is attentive to all the shipping laws
under the Secretary’s superintendence.

§ 2106. Liability in rem
When a vessel is made liable in rem under this
subtitle, the vessel may be libeled and proceeded
against in the district court of the United States
for any district in which the vessel is found.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 506; Pub. L.
109–304, § 15(4), Oct. 6, 2006, 120 Stat. 1702.)

Page 47

TITLE 46—SHIPPING

signatory. The Committee expects that the regulatory
flexibility being provided will not reduce the present
vessel inspection requirements that have been historically developed.
Section 3305(a) establishes the statutory scope of the
Coast Guard’s vessel inspection authority and duty.
The inspection process shall ensure that a vessel is of
suitable structure, equipment, and accommodations, is
maintained in an operating condition consistent with
safety of life and property, and complies with applicable marine safety laws and regulations.
Subsection (b) requires that defective life preservers
and firehose be destroyed in the presence of the inspecting official, normally a qualified Coast Guard marine inspector. The Committee believes that if this
equipment is defective for use on an inspected vessel, it
should be destroyed so that it cannot be used on an uninspected or recreational vessel.
Subsection (c) provides flexibility in the inspection of
various sizes of nautical school vessels.
AMENDMENTS
2006—Subsec. (a)(2). Pub. L. 109–241 realigned margins.
2004—Subsec. (a). Pub. L. 108–293, § 416(b), designated
existing provisions as par. (1), redesignated former
pars. (1) to (6) as subpars. (A) to (F), respectively, of
par. (1), and added par. (2).
Subsec. (a)(4) to (6). Pub. L. 108–293, § 416(a), added
par. (4) and redesignated former pars. (4) and (5) as (5)
and (6), respectively.
2002—Subsec. (c). Pub. L. 107–217 substituted ‘‘section
558 of title 40’’ for ‘‘section 13 of the Coast Guard Authorization Act of 1986’’.
1986—Subsec. (c). Pub. L. 99–640 inserted ‘‘or by an
educational institution under section 13 of the Coast
Guard Authorization Act of 1986’’.
1985—Subsec. (b). Pub. L. 99–36 substituted ‘‘lifesaving’’ and ‘‘life preserver, lifesaving device, or firehose’’
for ‘‘life-saving’’ and ‘‘life preserver or firehose’’, respectively.

§ 3306. Regulations
(a) To carry out this part and to secure the
safety of individuals and property on board vessels subject to inspection, the Secretary shall
prescribe necessary regulations to ensure the
proper execution of, and to carry out, this part
in the most effective manner for—
(1) the design, construction, alteration, repair, and operation of those vessels, including
superstructures, hulls, fittings, equipment, appliances, propulsion machinery, auxiliary machinery, boilers, unfired pressure vessels, piping, electric installations, and accommodations for passengers and crew, sailing school
instructors, and sailing school students;
(2) lifesaving equipment and its use;
(3) firefighting equipment, its use, and precautionary measures to guard against fire;
(4) inspections and tests related to paragraphs (1), (2), and (3) of this subsection; and
(5) the use of vessel stores and other supplies
of a dangerous nature.
(b)(1) Equipment and material subject to regulation under this section may not be used on any
vessel without prior approval of the Secretary.
(2) Except with respect to use on a public vessel, the Secretary may treat an approval of
equipment or materials by a foreign government
as approval by the Secretary for purposes of
paragraph (1) if the Secretary determines that—
(A) the design standards and testing procedures used by that government meet the requirements of the International Convention
for the Safety of Life at Sea, 1974;

§ 3306

(B) the approval of the equipment or material by the foreign government will secure the
safety of individuals and property on board
vessels subject to inspection; and
(C) for lifesaving equipment, the foreign government—
(i) has given equivalent treatment to approvals of lifesaving equipment by the Secretary; and
(ii) otherwise ensures that lifesaving
equipment approved by the Secretary may
be used on vessels that are documented and
subject to inspection under the laws of that
country.
(c) In prescribing regulations for sailing school
vessels, the Secretary shall consult with representatives of the private sector having experience in the operation of vessels likely to be certificated as sailing school vessels. The regulations shall—
(1) reflect the specialized nature of sailing
school vessel operations, and the character,
design, and construction of vessels operating
as sailing school vessels; and
(2) include requirements for notice to sailing
school instructors and sailing school students
about the specialized nature of sailing school
vessels and applicable safety regulations.
(d) In prescribing regulations for nautical
school vessels operated by the United States
Merchant Marine Academy or by a State maritime academy (as defined in section 51102 of this
title), the Secretary shall consider the function,
purpose, and operation of the vessels, their
routes, and the number of individuals who may
be carried on the vessels.
(e) When the Secretary finds it in the public
interest, the Secretary may suspend or grant exemptions from the requirements of a regulation
prescribed under this section related to lifesaving and firefighting equipment, muster lists,
ground tackle and hawsers, and bilge systems.
(f) In prescribing regulations for offshore supply vessels, the Secretary shall consider the
characteristics, methods of operation, and the
nature of the service of offshore supply vessels.
(g) In prescribing regulations for fish processing or fish tender vessels, the Secretary shall
consult with representatives of the private sector having experience in the operation of these
vessels. The regulations shall reflect the specialized nature and economics of fish processing or
fish tender vessel operations and the character,
design, and construction of fish processing or
fish tender vessels.
(h) The Secretary shall establish appropriate
structural fire protection, manning, operating,
and equipment requirements for vessels of at
least 100 gross tons but less than 300 gross tons
as measured under section 14502 of this title, or
an alternate tonnage measured under section
14302 of this title as prescribed by the Secretary
under section 14104 of this title carrying not
more than 150 passengers on domestic voyages,
which meet the eligibility criteria of section
2113(4) of this title.
(i) The Secretary shall establish appropriate
structural fire protection, manning, operating,
and equipment requirements for former public
vessels of the United States of at least 100 gross

§ 3306

TITLE 46—SHIPPING

tons but less that 500 gross tons as measured
under section 14502 of this title, or an alternate
tonnage measured under section 14302 of this
title as prescribed by the Secretary under section 14104 of this title carrying not more than
150 passengers on domestic voyages, which meet
the eligibility criteria of section 2113(5) of this
title.
(j) The Secretary may establish by regulation
a safety management system appropriate for the
characteristics, methods of operation, and nature of service of towing vessels.
(k)(1) Each vessel of the United States that is
constructed under a contract entered into after
the date of enactment of the Maritime Safety
Act of 2010, or that is delivered after January 1,
2011, with an aggregate capacity of 600 cubic meters or more of oil fuel, shall comply with the
requirements of Regulation 12A under Annex I
to the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, entitled ‘‘Oil Fuel Tank
Protection’’.
(2) The Secretary may prescribe regulations to
apply the requirements described in Regulation
12A to vessels described in paragraph (1) that are
not otherwise subject to that convention. Any
such regulation shall be considered to be an interpretive rule for the purposes of section 553 of
title 5.
(3) In this subsection the term ‘‘oil fuel’’
means any oil used as fuel in connection with
the propulsion and auxiliary machinery of the
vessel in which such oil is carried.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 513; Pub. L.
98–364, title IV, § 402(5), July 17, 1984, 98 Stat. 446;
Pub. L. 103–206, title V, § 512(a), Dec. 20, 1993, 107
Stat. 2442; Pub. L. 104–324, title VI, § 604(a), (c),
title VII, § 712, Oct. 19, 1996, 110 Stat. 3930, 3931,
3936; Pub. L. 108–293, title IV, § 415(b), Aug. 9,
2004, 118 Stat. 1047; Pub. L. 109–304, § 15(12), Oct.
6, 2006, 120 Stat. 1703; Pub. L. 111–281, title VI,
§ 612, Oct. 15, 2010, 124 Stat. 2970.)
HISTORICAL AND REVISION NOTES
Revised section
3306 ..............................................

Source section (U.S. Code)
46:366
46:369
46:375
46:390b
46:392
46:404
46:408
46:411
46:412
46:416
46:420
46:445
46:459
46:473
46:477
46:478
46:479
46:481
46:482
46:483
46:489
46:526p
46:1295f(c)

Section 3306 contains broad authority to prescribe
regulations for the proper inspection and certification
of vessels. It provides regulatory flexibility for meeting
technological changes. The section also permits flexibility in prescribing regulations for nautical school
vessels operated by the United States Merchant Marine
Academy or by a State maritime academy. The Secretary may suspend or grant exemptions to certain lim-

Page 48

ited inspection requirements when the Secretary finds
that this is necessary in the public interest. It also contains the requirement that in regulating offshore supply vessels consideration must be given to the special
nature of their operations.
REFERENCES IN TEXT
The date of enactment of the Maritime Safety Act of
2010, referred to in subsec. (k)(1), is the date of enactment of title VI of Pub. L. 111–281, which was approved
Oct. 15, 2010.
AMENDMENTS
2010—Subsec. (k). Pub. L. 111–281 added subsec. (k).
2006—Subsec. (d). Pub. L. 109–304 substituted ‘‘section
51102 of this title’’ for ‘‘section 1302(3) of the Merchant
Marine Act, 1936 (46 App. U.S.C. 1295a(3))’’.
2004—Subsec. (j). Pub. L. 108–293 added subsec. (j).
1996—Subsec. (a)(4). Pub. L. 104–324, § 604(c), substituted ‘‘paragraphs (1), (2), and (3)’’ for ‘‘clauses
(1)–(3)’’.
Subsec. (b). Pub. L. 104–324, § 604(a), amended subsec.
(b) generally. Prior to amendment, subsec. (b) read as
follows: ‘‘Equipment subject to regulation under this
section may not be used on any vessel without prior approval as prescribed by regulation.’’
Subsec. (h). Pub. L. 104–324, § 712(1), inserted ‘‘as
measured under section 14502 of this title, or an alternate tonnage measured under section 14302 of this title
as prescribed by the Secretary under section 14104 of
this title’’ after ‘‘300 gross tons’’.
Subsec. (i). Pub. L. 104–324, § 712(2), inserted ‘‘as measured under section 14502 of this title, or an alternate
tonnage measured under section 14302 of this title as
prescribed by the Secretary under section 14104 of this
title’’ after ‘‘500 gross tons’’.
1993—Subsecs. (h), (i). Pub. L. 103–206 added subsecs.
(h) and (i).
1984—Subsec. (g). Pub. L. 98–364 added subsec. (g).
REGULATIONS
Pub. L. 103–206, title V, § 512(b), (c), Dec. 20, 1993, 107
Stat. 2442, provided that:
‘‘(b) The Secretary of Transportation shall, within
twenty-four months of the date of enactment of this
Act [Dec. 20, 1993], prescribe regulations establishing
the structural fire protection, manning, operating, and
equipment requirements for vessels which meet the requirements of subsections (h) and (i) of section 3306 of
title 46, United States Code, as amended by this Act.
‘‘(c) Before the Secretary of Transportation prescribes regulations under subsections (h) and (i) of section 3306 of title 46, United States Code, as amended by
this Act, the Secretary may prescribe the route, service, manning, and equipment for those vessels based on
existing passenger vessel and small passenger vessel
regulations.’’
TOWING VESSELS
Pub. L. 111–281, title VII, § 701(c), Oct. 15, 2010, 124
Stat. 2980, provided that: ‘‘No later than 90 days after
the date of enactment of this Act [Oct. 15, 2010], the
Secretary shall issue a notice of proposed rulemaking
regarding inspection requirements for towing vessels
required under section 3306(j) of title 46, United States
Code. The Secretary shall issue a final rule pursuant to
that rulemaking no later than 1 year after the date of
enactment of this Act.’’
[‘‘Secretary’’ as used in section 701(c) of Pub. L.
111–281, set out above, probably means the Secretary of
the department in which the Coast Guard is operating,
see section 701(a)(1) of Pub. L. 111–281, set out as a note
under section 1321 of Title 33, Navigation and Navigable
Waters.]
FOREIGN APPROVALS
Pub. L. 104–324, title VI, § 604(b), Oct. 19, 1996, 110 Stat.
3931, provided that: ‘‘The Secretary of Transportation,
in consultation with other interested Federal agencies,

Page 49

§ 3309

TITLE 46—SHIPPING

shall work with foreign governments to have those governments approve the use of the same equipment and
materials on vessels documented under the laws of
those countries that the Secretary requires on United
States documented vessels.’’
INTERNATIONAL CONVENTION FOR SAFETY OF LIFE AT
SEA
For International Conventions for the Safety of Life
at Sea to which the United States has been a party, see
section 1602 of Title 33, Navigation and Navigable Waters, and notes thereunder.

§ 3307. Frequency of inspection
Each vessel subject to inspection under this
part shall undergo an initial inspection for certification before being put into service. After
being put into service—
(1) each passenger vessel, nautical school
vessel, and small passenger vessel allowed to
carry more than 12 passengers on a foreign
voyage shall be inspected at least once a year;
and
(2) any other vessel shall be inspected at
least once every 5 years.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 514; Pub. L.
104–324, title VI, § 605(a), Oct. 19, 1996, 110 Stat.
3931.)
HISTORICAL AND REVISION NOTES
Revised section

Source section (U.S. Code)

3307(1) ..........................................
3307(2) ..........................................
3307(3) ..........................................

46:391(c)
46:1295f(c)
46:390a(a)
46:404–1(6)(i)
46:391(b)
46:392(b)
46:404–1(6)(ii)

Section 3307 requires each vessel subject to inspection
to undergo an initial inspection prior to being placed in
service. This is normally started during the construction or reconstruction phase and is a continuing process until final certification for operation in a particular trade. Subsequent periodic inspections are also required for various types of vessels. It is to be noted
that a freight vessel of less than 100 gross tons shall be
inspected at 3 year intervals while the larger freight
vessel has a 2 year inspection period. This is being done
to retain the existing procedure of issuing 3 year certificates of inspection to smaller vessels, however, this
does not prevent periodic inspections or examinations
at intervening periods.
AMENDMENTS
1996—Par. (1). Pub. L. 104–324, § 605(a)(1), substituted
‘‘, nautical school vessel, and small passenger vessel allowed to carry more than 12 passengers on a foreign
voyage’’ for ‘‘and nautical school vessel’’ and inserted
‘‘and’’ at end.
Pars. (2), (3). Pub. L. 104–324, § 605(a)(2), (3), redesignated par. (3) as (2), substituted ‘‘5 years’’ for ‘‘2 years’’,
and struck out former par. (2) which read as follows:
‘‘each small passenger vessel, freight vessel or offshore
supply vessel of less than 100 gross tons, and sailing
school vessel shall be inspected at least once every 3
years; and’’.

§ 3308. Examinations
In addition to inspections required by section
3307 of this title, the Secretary shall examine or
have examined—
(1) each vessel subject to inspection at proper times to ensure compliance with law and
regulations; and
(2) crewmember accommodations on each
vessel subject to inspection at least once a

month or when the vessel enters United States
ports to ensure that the accommodations are—
(A) of the size required by law and regulations;
(B) properly ventilated and in a clean and
sanitary condition; and
(C) equipped with proper plumbing and mechanical appliances required by law and regulations, and the appliances are in good
working condition.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 514; Pub. L.
104–324, title VI, § 603(c), Oct. 19, 1996, 110 Stat.
3930.)
HISTORICAL AND REVISION NOTES
Revised section

Source section (U.S. Code)

3308 ..............................................

46:435
46:660a
46:660b

Section 3308 requires the Secretary to carry out additional inspections as might be necessary to ensure compliance with applicable laws and regulations, and to ensure that accommodations are maintained in a sanitary
condition and that all appliances are in good working
order.
AMENDMENTS
1996—Pub. L. 104–324 inserted ‘‘or have examined’’
after ‘‘examine’’ in introductory provisions.

§ 3309. Certificate of inspection
(a) When an inspection under section 3307 of
this title has been made and a vessel has been
found to be in compliance with the requirements
of law and regulations, a certificate of inspection, in a form prescribed by the Secretary,
shall be issued to the vessel.
(b) The Secretary may issue a temporary certificate of inspection in place of a regular certificate of inspection issued under subsection (a)
of this section.
(c) At least 30 days before the current certificate of inspection issued to a vessel under subsection (a) of this section expires, the owner,
charterer, managing operator, agent, master, or
individual in charge of the vessel shall submit to
the Secretary in writing a notice that the vessel—
(1) will be required to be inspected; or
(2) will not be operated so as to require an
inspection.
(d) A certificate of inspection issued under
this section shall be signed by the senior Coast
Guard member or civilian employee who inspected the vessel, in addition to the officer in
charge of marine inspection.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 515; Pub. L.
98–498, title II, § 211(a), Oct. 19, 1984, 98 Stat. 2303;
Pub. L. 104–324, title VI, § 606, Oct. 19, 1996, 110
Stat. 3931; Pub. L. 111–281, title V, § 522(c), Oct.
15, 2010, 124 Stat. 2957.)
HISTORICAL AND REVISION NOTES
Revised section
3309 ..............................................

Source section (U.S. Code)
46:390c
46:391a(8)
46:395(d)
46:399

Section 3309 provides for the issuance of a certificate
of inspection that attests to the fact that the vessel has

[§ 5115

TITLE 46—SHIPPING

to enforce this chapter and the regulations prescribed under this chapter.
(b) The Secretary shall consult with the Secretary of the Treasury before prescribing a regulation that affects the enforcement responsibilities of an officer or employee of the Customs
Service.
(Pub. L. 99–509, title V, § 5101(2), Oct. 21, 1986, 100
Stat. 1918; Pub. L. 101–595, title VI, § 603(4), Nov.
16, 1990, 104 Stat. 2993.)
HISTORICAL AND REVISION NOTES
Revised section 5114
Source: Section (U.S. Code) 46 App. U.S.C. 86
Section 5114(a) authorizes the Secretary to use a Customs Service officer or employee to enforce load line
requirements. The expected role of a Customs Service
officer or employee in this regard is to ensure that a
vessel is carrying a load line certificate and that the
load line is not submerged.
Section 5114(b) requires the Secretary to consult with
the Secretary of the Treasury before prescribing a regulation that affects the enforcement responsibilities of
a Customs Service officer or employee.
AMENDMENTS
1990—Pub. L. 101–595 substituted ‘‘officers and employees’’ for ‘‘officers employees’’ in section catchline.
TRANSFER OF FUNCTIONS
For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the
Department of the Treasury, including functions of the
Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 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.

[§ 5115. Repealed. Pub. L. 101–595, title VI,
§ 603(5)(A), Nov. 16, 1990, 104 Stat. 2993]
Section, Pub. L. 99–509, title V, § 5101(2), Oct. 21, 1986,
100 Stat. 1918, authorized Secretary to prescribe regulations to carry out this chapter.

of the United States in violation of a detention
order issued under section 5113 of this title commits a class A misdemeanor.
(e) A person causing or allowing the alteration, concealment, or removal of a mark placed
on a vessel under section 5103(b) of this title and
the regulations prescribed under this chapter,
except to make a lawful change or to escape
enemy capture in time of war, commits a class
A misdemeanor.
(Pub. L. 99–509, title V, § 5101(2), Oct. 21, 1986, 100
Stat. 1918; Pub. L. 101–380, title IV, § 4302(d), Aug.
18, 1990, 104 Stat. 538.)
HISTORICAL AND REVISION NOTES
Revised section 5116
Source: Section (U.S. Code) 46 App. U.S.C. 86i, 88g.
Section 5116 provides penalties for violations of load
line requirements. The penalties are raised substantially from existing law to provide a sufficient deterrence against violations of the load line requirements
and to conform with the level of penalties throughout
the subtitle. The monetary penalties have not been
changed since the 1930’s.
Section 5116(a) raises from $1,000 to $5,000 the maximum penalty for violation of a load line provision
under this chapter or a regulation promulgated under
this chapter.
Section 5116(b) raises from $1,000 to $10,000 the maximum penalty for loading a vessel in such a way as to
submerge the load line. In addition, a violator must
pay up to two times the amount of the economic benefit of the overloading.
Section 5116(c) raises from $500 to $5,000 the maximum penalty for a violation of the requirement in section 5112(b) that the load line position and draft of a
vessel be noted in the logbook.
Section 5116(a)–(c) also states that the vessel is liable
in rem for the penalty.
Section 5116(d) raises from $1,000 to $10,000 the maximum penalty for a violation of a detention order and
may also include imprisonment for up to one year.
Section 5116(e) raises from $2,000 to $10,000 the maximum penalty for the alteration, removal, or concealment of a load line mark and may also include imprisonment for two years.
AMENDMENTS

§ 5116. Penalties
(a) Except as otherwise provided in this section, the owner, charterer, managing operator,
agent, master, and individual in charge of a vessel violating this chapter or a regulation prescribed under this chapter are each liable to the
United States Government for a civil penalty of
not more than $5,000. Each day of a continuing
violation is a separate violation. The vessel also
is liable in rem for the penalty.
(b) The owner, charterer, managing operator,
agent, master, and individual in charge of a vessel allowing, causing, attempting to cause, or
failing to take reasonable care to prevent a violation of section 5112(a) of this title are each liable to the Government for a civil penalty of not
more than $10,000 plus an additional amount
equal to twice the economic benefit of the overloading. The vessel also is liable in rem for the
penalty.
(c) The master or individual in charge of a vessel violating section 5112(b) of this title is liable
to the Government for a civil penalty of not
more than $5,000. The vessel also is liable in rem
for the penalty.
(d) A person causing or allowing the departure
of a vessel from a place within the jurisdiction

Page 98

1990—Subsec. (d). Pub. L. 101–380, § 4302(d)(1), substituted ‘‘commits a class A misdemeanor’’ for ‘‘shall
be fined not more than $10,000, imprisoned for not more
than one year, or both’’.
Subsec. (e). Pub. L. 101–380, § 4302(d)(2), substituted
‘‘commits a class A misdemeanor’’ for ‘‘shall be fined
not more than $10,000, imprisoned for not more than 2
years, or both’’.
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 Title 33, Navigation and Navigable Waters.

PART D—MARINE CASUALTIES
CHAPTER 61—REPORTING MARINE
CASUALTIES
Sec.

6101.
6102.
6103.
6104.

Marine casualties and reporting.
State marine casualty reporting system.
Penalty.
Commercial fishing industry vessel casualty
statistics.
HISTORICAL AND REVISION NOTES

Chapter 61 provides for the reporting of marine casualties and incidents involving all United States flag

Page 99

§ 6101

TITLE 46—SHIPPING

vessels occurring anywhere in the world and any foreign flag vessel operating on waters subject to the jurisdiction of the United States.
AMENDMENTS
1988—Pub. L. 100–424, § 4(c), Sept. 9, 1988, 102 Stat. 1591,
added item 6104.

§ 6101. Marine casualties and reporting
(a) The Secretary shall prescribe regulations
on the marine casualties to be reported and the
manner of reporting. The regulations shall require reporting the following marine casualties:
(1) death of an individual.
(2) serious injury to an individual.
(3) material loss of property.
(4) material damage affecting the seaworthiness or efficiency of the vessel.
(5) significant harm to the environment.
(b) A marine casualty shall be reported within
5 days as provided in this part and regulations
prescribed under this part. Each report filed
under this section shall include information as
to whether the use of alcohol contributed to the
casualty.
[(c) Repealed. Pub. L. 98–498, title II,
§ 212(b)(1)(B), Oct. 19, 1984, 98 Stat. 2306.]
(d)(1) This part applies to a foreign vessel
when involved in a marine casualty on the navigable waters of the United States.
(2) This part applies, to the extent consistent
with generally recognized principles of international law, to a foreign vessel constructed or
adapted to carry, or that carries, oil in bulk as
cargo or cargo residue involved in a marine casualty described under subsection (a)(4) or (5) in
waters subject to the jurisdiction of the United
States, including the Exclusive Economic Zone.
(e) A marine casualty not resulting in the
death of an individual shall be classified according to the gravity of the casualty, as prescribed
by regulation, giving consideration to the extent of injuries to individuals, the extent of
property damage, the dangers that the casualty
creates, and the size, occupation, and means of
propulsion of each vessel involved.
(f)(1) This chapter applies to a marine casualty
involving a United States citizen on a foreign
passenger vessel operating south of 75 degrees
north latitude, west of 35 degrees west longitude, and east of the International Date Line;
or operating in the area south of 60 degrees
south latitude that—
(A) embarks or disembarks passengers in the
United States; or
(B) transports passengers traveling under
any form of air and sea ticket package marketed in the United States.
(2) When there is a marine casualty described
in paragraph (1) of this subsection and an investigation is conducted, the Secretary shall ensure
that the investigation—
(A) is thorough and timely; and
(B) produces findings and recommendations
to improve safety on passenger vessels.
(3) When there is a marine casualty described
in paragraph (1) of this subsection, the Secretary may—
(A) seek a multinational investigation of the
casualty under auspices of the International
Maritime Organization; or

(B) conduct an investigation of the casualty
under chapter 63 of this title.
(g) To the extent consistent with generally
recognized practices and procedures of international law, this part applies to a foreign vessel involved in a marine casualty or incident, as
defined in the International Maritime Organization Code for the Investigation of Marine Casualties and Incidents, where the United States is
a Substantially Interested State and is, or has
the consent of, the Lead Investigating State
under the Code.
(h)(1) The Secretary shall publish all major
marine casualty reports prepared in accordance
with this section in an electronic form, and
shall provide information electronically regarding how other marine casualty reports can be
obtained.
(2) For purposes of this paragraph, the term
‘‘major marine casualty’’ means a casualty involving a vessel, other than a public vessel, that
results in—
(A) the loss of 6 or more lives;
(B) the loss of a mechanically propelled vessel of 100 or more gross tons;
(C) property damage initially estimated at
$500,000 or more; or
(D) serious threat, as determined by the
Commandant of the Coast Guard with concurrence by the Chairman of the National Transportation Safety Board, to life, property, or
the environment by hazardous materials.
(i) The Secretary shall, as soon as possible,
and no later than January 1, 2005, publish all
marine casualty reports prepared in accordance
with this section in an electronic form.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 536; Pub. L.
98–498, title II, § 212(b)(1), Oct. 19, 1984, 98 Stat.
2306; Pub. L. 98–557, § 7(b)(1), Oct. 30, 1984, 98 Stat.
2862; Pub. L. 101–380, title IV, § 4106(b), Aug. 18,
1990, 104 Stat. 513; Pub. L. 102–241, § 33, Dec. 19,
1991, 105 Stat. 2222; Pub. L. 107–295, title IV,
§§ 423, 442(a), Nov. 25, 2002, 116 Stat. 2125, 2132;
Pub. L. 109–241, title IX, § 901(o), July 11, 2006, 120
Stat. 565; Pub. L. 109–304, § 15(21), Oct. 6, 2006, 120
Stat. 1704; Pub. L. 110–181, div. C, title XXXV,
§ 3529(c)(1), Jan. 28, 2008, 122 Stat. 603.)
HISTORICAL AND REVISION NOTES
Revised section
6101 ..............................................

6101(b) .........................................

Source section (U.S. Code)
46:239
46:1486
33:361
33:365
33:362

Section 6101(a) requires the Secretary to prescribe
regulations on the types and manner of reporting of
marine casualties to be reported under subsection (b)
and incidents to be reported under subsection (c). The
casualties to be reported must include casualties involving death to an individual, serious injury to an individual, material loss of property, and any damage affecting the seaworthiness or efficiency of the vessel, in
addition to the other casualties (if any) the Secretary
feels should be reported.
Subsection (b) requires the owner, charterer, agent,
master, operator, or individual in charge of a vessel to
report within 5 days, any casualty required in subsection (a) or by regulation.
Subsection (c) requires the owner, charterer, managing operator, or agent of a U.S. vessel to immediately

§ 6102

TITLE 46—SHIPPING

determine the status of their vessel if they have not
heard from the vessel, if it has not passed a scheduled
point, or for any other reason which may indicate the
vessel may have been lost or imperiled. If the owner,
charterer, managing operator, or agent cannot reach
the vessel and determine that it is operating safely,
then they shall immediately notify the Coast Guard
and provide the Coast Guard with the name and number of the vessel, the names of individuals on board,
and any other information that the Coast Guard may
request. If communication with the vessel indicates the
vessel was involved in a casualty, then the owner, charterer, or agent of the vessel must immediately notify
the Coast Guard under subsection (b). Notification to
the Coast Guard does not impose or create any additional responsibility for the Coast Guard to take search
and rescue action beyond those already existing under
title 14, United States Code.
Subsection (d) makes it clear that the reporting requirements under subsection (b) are applicable to foreign vessels involved in a marine casualty when operating on the navigable waters of the United States,
whether in innocent passage or not.
Subsection (e) provides for the classification of marine casualties by regulation according to the gravity
of the casualty, injuries to individuals, property damage, dangers created, and size, occupation, and means
of propulsion of each vessel.
AMENDMENTS
2008—Subsecs. (g) to (i). Pub. L. 110–181 repealed Pub.
L. 109–304, § 15(21). See 2006 Amendment notes below.
2006—Subsecs. (g) to (i). Pub. L. 109–304, § 15(21), which
directed amendment identical to that made by Pub. L.
109–241, was repealed by Pub. L. 110–181. See Construction of 2006 Amendment note below.
Pub. L. 109–241 redesignated the second subsec. (g), relating to electronic publishing of marine casualty reports, and subsec. (h) as subsecs. (h) and (i), respectively.
2002—Subsecs. (e), (f). Pub. L. 107–295, § 423(1), redesignated subsec. (e), relating to passenger vessel investigations, as subsec. (f).
Subsec. (g). Pub. L. 107–295, § 442(a), added subsec. (g)
relating to electronic publishing of marine casualty reports.
Pub. L. 107–295, § 423(2), added subsec. (g) relating to
applicability of this part to a foreign vessel involved in
a marine casualty or incident.
Subsec. (h). Pub. L. 107–295, § 442(a), added subsec. (h).
1991—Subsec. (e). Pub. L. 102–241 added subsec. (e) relating to passenger vessel investigations.
1990—Subsec. (a)(5). Pub. L. 101–380, § 4106(b)(1), added
par. (5).
Subsec. (d). Pub. L. 101–380, § 4106(b)(2), designated existing provisions as par. (1) and added par. (2).
1984—Subsec. (a). Pub. L. 98–498, § 212(b)(1)(A), struck
out ‘‘and incidents’’ after ‘‘marine casualties’’ in provisions preceding par. (1).
Subsec. (b). Pub. L. 98–557 inserted provisions relating
to alcohol as a contributing factor to the casualty.
Subsec. (c). Pub. L. 98–498, § 212(b)(1)(B), struck out
subsec. (c) which related to determination of status of
a vessel that may be lost or imperiled and notification
of the Coast Guard.
EFFECTIVE DATE OF 2002 AMENDMENT
Pub. L. 107–295, title IV, § 442(b), Nov. 25, 2002, 116
Stat. 2132, provided that: ‘‘The amendment made by
subsection (a) [amending this section] applies to all
marine casualty reports completed after the date of enactment of this Act [Nov. 25, 2002].’’

Page 100

EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98–498 effective 180 days after
Oct. 1, 1984, see section 214 of Pub. L. 98–498, set out as
an Effective Date note under section 2306 of this title.
CONSTRUCTION OF 2006 AMENDMENT
Provisions of Pub. L. 109–304 repealed by section
3529(c)(1) of Pub. L. 110–181 to be treated as if never enacted, see section 3529(c)(2) of Pub. L. 110–181, set out as
a note under section 9504 of Title 26, Internal Revenue
Code.
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.

§ 6102. State marine casualty reporting system
(a) The Secretary shall prescribe regulations
for a uniform State marine casualty reporting
system for vessels. Regulations shall prescribe
the casualties to be reported and the manner of
reporting. A State shall compile and submit to
the Secretary reports, information, and statistics on casualties reported to the State, including information and statistics concerning the
number of casualties in which the use of alcohol
contributed to the casualty.
(b) The Secretary shall collect, analyze, and
publish reports, information, and statistics on
marine casualties together with findings and
recommendations the Secretary considers appropriate. If a State marine casualty reporting
system provides that information derived from
casualty reports (except statistical information)
may not be publicly disclosed, or otherwise prohibits use by the State or any person in any action or proceeding against a person, the Secretary may use the information provided by the
State only in the same way that the State may
use the information.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 536; Pub. L.
98–557, § 7(b)(2), Oct. 30, 1984, 98 Stat. 2862.)
HISTORICAL AND REVISION NOTES
Revised section

Source section (U.S. Code)

6102 ..............................................

46:1486

Section 6102(a) requires the Secretary to prescribe
regulations for a uniform State marine casualty reporting system for vessels. The Secretary may limit the
scope and types of casualties to be investigated and reported by the State. It also requires the State to submit to the Secretary reports, information, and statistics on casualties reported to the State.
Subsection (b) requires the Secretary to analyze the
information that is received from the State. It also prohibits the Secretary from disclosing the information,
proceeding against any person based on this information, or otherwise using the information, if the State
cannot use the information in the same way.

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 Title 33, Navigation and Navigable Waters.

AMENDMENTS
1984—Subsec. (a). Pub. L. 98–557 inserted provisions
relating to alcohol as a contributing factor to the casualty.

§ 5103

TITLE 49—TRANSPORTATION

Par. (3)(B)(ii). Pub. L. 109–59, § 7102(2)(D)(ii), as amended by Pub. L. 110–244, § 302(a)(1), added cl. (ii) and struck
out former cl. (ii) which read as follows: ‘‘manufactures, reconditions, or tests containers, drums, and
packagings represented as qualified for use in transporting hazardous material;’’.
Par. (3)(C). Pub. L. 109–59, § 7102(2)(C), as amended by
Pub. L. 110–244, § 302(a)(1), redesignated subpar. (C) as
(B).
Par. (4). Pub. L. 109–59, § 7102(3), amended par. (4) generally. Prior to amendment, par. (4) consisted of subpars. (A) to (C), which included within definition of
‘‘hazmat employer’’ a person using at least one employee in connection with transporting or containers
for transporting hazardous material, an owner-operator
of a motor vehicle transporting hazardous material in
commerce, and a department, agency, or instrumentality of the United States Government, or an authority
of a State, political subdivision of a State, or Indian
tribe, carrying out certain described activities.
Par. (5). Pub. L. 109–59, § 7102(4), inserted ‘‘relating to
hazardous material’’ after ‘‘of a condition’’.
Par. (7). Pub. L. 109–59, § 7102(5), amended par. (7) generally. Prior to amendment, par. (7) read as follows:
‘‘ ‘motor carrier’ means a motor carrier, motor private
carrier, and freight forwarder as those terms are defined in section 13102 of this title.’’
Par. (8). Pub. L. 109–59, § 7102(6), substituted ‘‘National
Response Team’’ for ‘‘national response team’’ in two
places and ‘‘National Contingency Plan’’ for ‘‘national
contingency plan’’.
Par. (9)(A). Pub. L. 109–59, § 7102(7), amended subpar.
(A) generally. Prior to amendment, subpar. (A) read as
follows: ‘‘includes a government, Indian tribe, or authority of a government or tribe offering hazardous material for transportation in commerce or transporting
hazardous material to further a commercial enterprise;
but’’.
Pars. (11) to (14). Pub. L. 109–59, § 7102(8), added par.
(11) and redesignated former pars. (11) to (13) as (12) to
(14), respectively.
1995—Par. (7). Pub. L. 104–88 substituted ‘‘motor carrier, motor private’’ for ‘‘motor common carrier, motor
contract carrier, motor private’’ and ‘‘section 13102’’ for
‘‘section 10102’’.
1994—Pars. (3)(C)(ii), (4)(A)(iii). Pub. L. 103–311 substituted ‘‘packagings’’ for ‘‘packages’’.
EFFECTIVE DATE OF 2008 AMENDMENT
Amendment by Pub. L. 110–244 effective as of the date
of enactment of Pub. L. 109–59 (Aug. 10, 2005) and to be
treated as included in Pub. L. 109–59 as of that date, and
provisions of Pub. L. 109–59, as in effect on the day before June 6, 2008, that are amended by Pub. L. 110–244
to be treated as not enacted, see section 121(b) of Pub.
L. 110–244, set out as a note under section 101 of Title
23, Highways.

§ 5103. General regulatory authority
(a) DESIGNATING MATERIAL AS HAZARDOUS.—
The Secretary shall designate material (including an explosive, radioactive material, infectious substance, flammable or combustible liquid, solid, or gas, toxic, oxidizing, or corrosive
material, and compressed gas) or a group or
class of material as hazardous when the Secretary determines that transporting the material in commerce in a particular amount and
form may pose an unreasonable risk to health
and safety or property.
(b) REGULATIONS FOR SAFE TRANSPORTATION.—
(1) The Secretary shall prescribe regulations for
the safe transportation, including security, of
hazardous material in intrastate, interstate, and
foreign commerce. The regulations—
(A) apply to a person who—
(i) transports hazardous material in commerce;

Page 134

(ii) causes hazardous material to be transported in commerce;
(iii) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use
in transporting hazardous material in commerce;
(iv) prepares or accepts hazardous material
for transportation in commerce;
(v) is responsible for the safety of transporting hazardous material in commerce;
(vi) certifies compliance with any requirement under this chapter; or
(vii) misrepresents whether such person is
engaged in any activity under clause (i)
through (vi); and
(B) shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.
(2) A proceeding to prescribe the regulations
must be conducted under section 553 of title 5,
including an opportunity for informal oral presentation.
(c) CONSULTATION.—When prescribing a security regulation or issuing a security order that
affects the safety of the transportation of hazardous material, the Secretary of Homeland Security shall consult with the Secretary of Transportation.
(d) BIENNIAL REPORT.—The Secretary of Transportation shall submit to the Committee on
Transportation and Infrastructure of the House
of Representatives and the Senate Committee
on Commerce, Science, and Transportation a biennial report providing information on whether
the Secretary has designated as hazardous materials for purposes of chapter 51 of such title all
by-products of the methamphetamine-production process that are known by the Secretary to
pose an unreasonable risk to health and safety
or property when transported in commerce in a
particular amount and form.
(Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 761;
Pub. L. 103–311, title I, § 117(a)(2), Aug. 26, 1994,
108 Stat. 1678; Pub. L. 103–429, § 6(3), Oct. 31, 1994,
108 Stat. 4378; Pub. L. 107–296, title XVII,
§ 1711(a), Nov. 25, 2002, 116 Stat. 2319; Pub. L.
109–59, title VII, §§ 7103, 7126, Aug. 10, 2005, 119
Stat. 1893, 1909; Pub. L. 109–177, title VII, § 741,
Mar. 9, 2006, 120 Stat. 272.)
HISTORICAL AND REVISION NOTES
PUB. L. 103–272
Revised
Section

Source (U.S. Code)

5103(a) ........

49 App.:1803.

5103(b) ........

49 App.:1804(a)
(1)–(3).

Source (Statutes at Large)
Jan. 3, 1975, Pub. L. 93–633,
§ 104, 88 Stat. 2156.
Jan. 3, 1975, Pub. L. 93–633,
§ 105(a)(1)–(3), 88 Stat. 2157;
restated Nov. 16, 1990,
Pub. L. 101–615, § 4, 104
Stat. 3247.

In subsection (a), the words ‘‘such quantity and form
of material’’ and ‘‘in his discretion’’ are omitted as surplus.
In subsection (b)(1), before clause (A), the words ‘‘in
accordance with section 553 of title 5’’ are omitted because 5:553 applies unless otherwise stated. In clause
(A)(i), the words ‘‘hazardous material in commerce’’,

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TITLE 49—TRANSPORTATION

and in clause (A)(ii), the words ‘‘hazardous material
. . . in commerce’’, are added for consistency in this
chapter.
PUB. L. 103–429
This amends 49:5103(b)(2) to clarify the restatement of
49 App.:1804(a)(2) by section 1 of the Act of July 5, 1994
(Public Law 103–272, 108 Stat. 761).
AMENDMENTS
2006—Subsec. (d). Pub. L. 109–177 added subsec. (d).
2005—Subsec. (a). Pub. L. 109–59, § 7126, substituted
‘‘Secretary shall designate’’ for ‘‘Secretary of Transportation shall designate’’.
Pub. L. 109–59, § 7103(a), substituted ‘‘infectious substance, flammable or combustible liquid, solid, or gas,
toxic, oxidizing, or corrosive material,’’ for ‘‘etiologic
agent, flammable or combustible liquid or solid, poison,
oxidizing or corrosive material,’’ and ‘‘determines’’ for
‘‘decides’’.
Subsec. (b)(1)(A). Pub. L. 109–59, § 7103(b), amended
subpar. (A) generally. Prior to amendment, subpar. (A)
read as follows: ‘‘apply to a person—
‘‘(i) transporting hazardous material in commerce;
‘‘(ii) causing hazardous material to be transported
in commerce; or
‘‘(iii) manufacturing, fabricating, marking, maintaining, reconditioning, repairing, or testing a packaging or a container that is represented, marked, certified, or sold by that person as qualified for use in
transporting hazardous material in commerce; and’’.
Subsec. (b)(1)(C). Pub. L. 109–59, § 7103(c)(1), struck out
heading and text of subpar. (C). Text read as follows:
‘‘When prescribing a security regulation or issuing a security order that affects the safety of the transportation of hazardous material, the Secretary of Homeland Security shall consult with the Secretary.’’
Subsec. (c). Pub. L. 109–59, § 7103(c)(2), added subsec.
(c).
2002—Subsec. (b)(1). Pub. L. 107–296, § 1711(a)(1), substituted ‘‘transportation, including security,’’ for
‘‘transportation’’ in introductory provisions.
Subsec. (b)(1)(B). Pub. L. 107–296, § 1711(a)(2), substituted ‘‘aspects, including security,’’ for ‘‘aspects’’.
Subsec. (b)(1)(C). Pub. L. 107–296, § 1711(a)(3), added
subpar. (C).
1994—Subsec. (b)(1)(A)(iii). Pub. L. 103–311 substituted
‘‘a packaging or a’’ for ‘‘a package or’’.
Subsec. (b)(2). Pub. L. 103–429 substituted ‘‘be conducted under section 553 of title 5, including’’ for ‘‘include’’ and ‘‘presentation’’ for ‘‘presentations’’.
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107–296 effective 60 days after
Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as
an Effective Date note under section 101 of Title 6, Domestic Security.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103–429 effective July 5, 1994,
see section 9 of Pub. L. 103–429, set out as a note under
section 321 of this title.
RAILROAD CARRIER EMPLOYEE EXPOSURE TO RADIATION
STUDY
Pub. L. 110–432, div. A, title IV, § 411, Oct. 16, 2008, 122
Stat. 4888, provided that:
‘‘(a) STUDY.—The Secretary of Transportation shall,
in consultation with the Secretary of Energy, the Secretary of Labor, the Administrator of the Environmental Protection Agency, and the Chairman of the
Nuclear Regulatory Commission, as appropriate, conduct a study of the potential hazards to which employees of railroad carriers and railroad contractors or subcontractors are exposed during the transportation of
high-level radioactive waste and spent nuclear fuel (as
defined in section 5101(a) [probably means section
5105(a)] of title 49, United States Code), supplementing
the report submitted under section 5101(b) [probably

§ 5103

means section 5105(b)] of that title, which may include—
‘‘(1) an analysis of the potential application of ‘as
low as reasonably achievable’ principles for exposure
to radiation to such employees with an emphasis on
the need for special protection from radiation exposure for such employees during the first trimester of
pregnancy or who are undergoing or have recently
undergone radiation therapy;
‘‘(2) the feasibility of requiring real-time dosimetry
monitoring for such employees;
‘‘(3) the feasibility of requiring routine radiation
exposure monitoring in fixed railroad locations, such
as yards and repair facilities; and
‘‘(4) a review of the effectiveness of the Department’s packaging requirements for radioactive materials.
‘‘(b) REPORT.—Not later than 18 months after the date
of enactment of this Act [Oct. 16, 2008], the Secretary
of Transportation shall transmit a report on the results
of the study required by subsection (a) and any recommendations to further protect employees of a railroad
carrier or of a contractor or subcontractor to a railroad
carrier from unsafe exposure to radiation during the
transportation of high-level radioactive waste and
spent nuclear fuel to the Senate Committee on Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure.
‘‘(c) REGULATORY AUTHORITY.—The Secretary of
Transportation may issue regulations that the Secretary determines appropriate, pursuant to the report
required by subsection (b), to protect railroad employees from unsafe exposure to radiation during the transportation of radioactive materials.’’
[For definitions of ‘‘railroad carrier’’, ‘‘Department’’,
‘‘railroad’’, and ‘‘Secretary’’, as used in section 411 of
Pub. L. 110–432, set out above, see section 2(a) of Pub.
L. 110–432, set out as a note under section 20102 of this
title.]
SAFE PLACEMENT OF TRAIN CARS
Section 111 of Pub. L. 103–311 provided that: ‘‘The
Secretary of Transportation shall conduct a study of
existing practices regarding the placement of cars on
trains, with particular attention to the placement of
cars that carry hazardous materials. In conducting the
study, the Secretary shall consider whether such placement practices increase the risk of derailment, hazardous materials spills, or tank ruptures or have any other
adverse effect on safety. The results of the study shall
be submitted to Congress within 1 year after the date
of enactment of this Act [Aug. 26, 1994].’’
FIBER DRUM PACKAGING
Pub. L. 104–88, title IV, § 406, Dec. 29, 1995, 109 Stat.
957, provided that:
‘‘(a) IN GENERAL.—In the administration of chapter 51
of title 49, United States Code, the Secretary of Transportation shall issue a final rule within 60 days after
the date of the enactment of this Act [Dec. 29, 1995] authorizing the continued use of fiber drum packaging
with a removable head for the transportation of liquid
hazardous materials with respect to those liquid hazardous materials transported by such drums pursuant
to regulations in effect on September 30, 1991, if—
‘‘(1) the packaging is in compliance with regulations of the Secretary under the Hazardous Materials
Transportation Act [former 49 U.S.C. 1801 et seq.] as
in effect on September 30, 1991; and
‘‘(2) the packaging will not be used for the transportation of hazardous materials that include materials
which are poisonous by inhalation or materials in
Packing Groups I and II.
‘‘(b) EXPIRATION.—The regulation referred to in subsection (a) shall expire on the later of September 30,
1997, or the date on which funds are authorized to be appropriated to carry out chapter 51 of title 49, United
States Code (relating to transportation of hazardous

§ 5103a

TITLE 49—TRANSPORTATION

materials), for fiscal years beginning after September
30, 1997.
‘‘(c) STUDY.—
‘‘(1) IN GENERAL.—Within 90 days after the date of
the enactment of this Act [Dec. 29, 1995], the Secretary shall contract with the National Academy of
Sciences to conduct a study—
‘‘(A) to determine whether the requirements of
section 5103(b) of title 49, United States Code (relating to regulations for safe transportation), as they
pertain to fiber drum packaging with a removable
head can be met for the transportation of liquid
hazardous materials (with respect to those liquid
hazardous materials transported by such drums
pursuant to regulations in effect on September 30,
1991) with standards (including fiber drum industry
standards set forth in a June 8, 1992, exemption application submitted to the Department of Transportation), other than the performance-oriented packaging standards adopted under docket number
HM–181 contained in part 178 of title 49, Code of
Federal Regulations; and
‘‘(B) to determine whether a packaging standard
(including such fiber drum industry standards),
other than such performance-oriented packaging
standards, will provide an equal or greater level of
safety for the transportation of liquid hazardous
materials than would be provided if such performance-oriented packaging standards were in effect.
‘‘(2) COMPLETION.—The study shall be completed before March 1, 1997 and shall be transmitted to the
Committee on Commerce, Science, and Transportation of the Senate and the Transportation and Infrastructure Committee of the House of Representatives.
‘‘(d) SECRETARIAL ACTION.—By September 30, 1997, the
Secretary shall issue final regulations to determine
what standards should apply to fiber drum packaging
with a removable head for transportation of liquid hazardous materials (with respect to those liquid hazardous materials transported by such drums pursuant to
regulations in effect on September 30, 1991) after September 30, 1997. In issuing such regulations, the Secretary shall give full and substantial consideration to
the results of the study conducted in subsection (c).’’
Section 122 of Pub. L. 103–311 provided that:
‘‘(a) INITIATION OF RULEMAKING PROCEEDING.—Not
later than the 60th day following the date of enactment
of this Act [Aug. 26, 1994], the Secretary of Transportation shall initiate a rulemaking proceeding to determine whether the requirements of section 5103(b) of
title 49, United States Code (relating to regulations for
safe transportation), as they pertain to open head fiber
drum packaging can be met for the domestic transportation of liquid hazardous materials (with respect to
those classifications of liquid hazardous materials
transported by such drums pursuant to regulations in
effect on September 30, 1991) with standards other than
the performance-oriented packaging standards adopted
under docket number HM–181 contained in part 178 of
title 49, Code of Federal Regulations.
‘‘(b) ISSUANCE OF STANDARDS.—If the Secretary of
Transportation determines, as a result of the rulemaking proceeding initiated under subsection (a), that
a packaging standard other than the performance-oriented packaging standards referred to in subsection (a)
will provide an equal or greater level of safety for the
domestic transportation of liquid hazardous materials
than would be provided if such performance-oriented
packaging standards were in effect, the Secretary shall
issue regulations which implement such other standard
and which take effect before October 1, 1996.
‘‘(c) COMPLETION OF RULEMAKING PROCEEDING.—The
rulemaking proceeding initiated under subsection (a)
shall be completed before October 1, 1995.
‘‘(d) LIMITATIONS.—
‘‘(1) The provisions of subsections (a), (b), and (c)
shall not apply to packaging for those hazardous materials regulated by the Department of Transportation as poisonous by inhalation under chapter 51 of
title 49, United States Code.

Page 136

‘‘(2) Nothing in this section shall be construed to
prohibit the Secretary of Transportation from issuing
or enforcing regulations for the international transportation of hazardous materials.’’

§ 5103a. Limitation on issuance of hazmat licenses
(a) LIMITATION.—
(1) ISSUANCE OF LICENSES.—A State may not
issue to any individual a license to operate a
motor vehicle transporting in commerce a
hazardous material unless the Secretary of
Homeland Security has first determined, upon
receipt of a notification under subsection
(d)(1)(B), that the individual does not pose a
security risk warranting denial of the license.
(2) RENEWALS INCLUDED.—For the purposes of
this section, the term ‘‘issue’’, with respect to
a license, includes renewal of the license.
(b) HAZARDOUS MATERIALS DESCRIBED.—The
limitation in subsection (a) shall apply with respect to any material defined as hazardous material by the Secretary of Transportation for
which the Secretary of Transportation requires
placarding of a commercial motor vehicle transporting that material in commerce.
(c) RECOMMENDATIONS ON CHEMICAL AND BIOLOGICAL MATERIALS.—The Secretary of Health
and Human Services shall recommend to the
Secretary of Transportation any chemical or biological material or agent for regulation as a
hazardous material under section 5103(a) if the
Secretary of Health and Human Services determines that such material or agent poses a significant risk to the health of individuals.
(d) BACKGROUND RECORDS CHECK.—
(1) IN GENERAL.—Upon the request of a State
regarding issuance of a license described in
subsection (a)(1) to an individual, the Attorney General—
(A) shall carry out a background records
check regarding the individual; and
(B) upon completing the background
records check, shall notify the Secretary of
Homeland Security of the completion and
results of the background records check.
(2) SCOPE.—A background records check regarding an individual under this subsection
shall consist of the following:
(A) A check of the relevant criminal history data bases.
(B) In the case of an alien, a check of the
relevant data bases to determine the status
of the alien under the immigration laws of
the United States.
(C) As appropriate, a check of the relevant
international
data
bases
through
Interpol–U.S. National Central Bureau or
other appropriate means.
(e) REPORTING REQUIREMENT.—Each State
shall submit to the Secretary of Homeland Security, at such time and in such manner as the
Secretary of Homeland Security may prescribe,
the name, address, and such other information
as the Secretary of Homeland Security may require, concerning—
(1) each alien to whom the State issues a license described in subsection (a); and
(2) each other individual to whom such a license is issued, as the Secretary of Homeland
Security may require.