1625-0068 Stat/Authority

USCODE-2011-title33-chap40-subchapI-sec2712.pdf

State Access to the Oil Spill Liability Trust Fund for Removal Costs Under the Oil Pollution Act of 1990

1625-0068 Stat/Authority

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Page 671

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

taken in connection with any discharge of oil.
For the purposes of the National Contingency
Plan, removal with respect to any discharge
shall be considered completed when so determined by the President in consultation with the
Governor or Governors of the affected States.
However, this determination shall not preclude
additional removal actions under applicable
State law.
(Pub. L. 101–380, title I, § 1011, Aug. 18, 1990, 104
Stat. 498.)
DELEGATION OF FUNCTIONS
Functions of President under this section delegated
to Administrator of Environmental Protection Agency
for inland zone and to Secretary of Department in
which Coast Guard is operating for coastal zone by section 3 of Ex. Ord. No. 12777, Oct. 18, 1991, 56 F.R. 54757,
set out as a note under section 1321 of this title.

§ 2712. Uses of Fund
(a) Uses generally
The Fund shall be available to the President
for—
(1) the payment of removal costs, including
the costs of monitoring removal actions, determined by the President to be consistent
with the National Contingency Plan—
(A) by Federal authorities; or
(B) by a Governor or designated State official under subsection (d) of this section;
(2) the payment of costs incurred by Federal,
State, or Indian tribe trustees in carrying out
their functions under section 2706 of this title
for assessing natural resource damages and for
developing and implementing plans for the
restoration, rehabilitation, replacement, or
acquisition of the equivalent of damaged resources determined by the President to be consistent with the National Contingency Plan;
(3) the payment of removal costs determined
by the President to be consistent with the National Contingency Plan as a result of, and
damages resulting from, a discharge, or a substantial threat of a discharge, of oil from a
foreign offshore unit;
(4) the payment of claims in accordance with
section 2713 of this title for uncompensated removal costs determined by the President to be
consistent with the National Contingency
Plan or uncompensated damages;
(5) the payment of Federal administrative,
operational, and personnel costs and expenses
reasonably necessary for and incidental to the
implementation, administration, and enforcement of this Act (including, but not limited
to, sections 1004(d)(2), 1006(e), 4107, 4110, 4111,
4112, 4117, 5006, 8103, and title VII) and subsections (b), (c), (d), (j), and (l) of section 1321
of this title with respect to prevention, removal, and enforcement related to oil discharges, provided that—
(A) not more than $25,000,000 in each fiscal
year shall be available to the Secretary for
operating expenses incurred by the Coast
Guard;
(B) not more than $15,000,000 in each fiscal
year shall be available to the Under Secretary of Commerce for Oceans and Atmosphere for expenses incurred by, and activi-

§ 2712

ties related to, response and damage assessment capabilities of the National Oceanic
and Atmospheric Administration;
(C) not more than $30,000,000 each year
through the end of fiscal year 1992 shall be
available to establish the National Response
System under section 1321(j) of this title, including the purchase and prepositioning of
oil spill removal equipment; and
(D) not more than $27,250,000 in each fiscal
year shall be available to carry out subchapter IV of this chapter; and
(6) the making of loans pursuant to the program established under section 2713(f) of this
title.
(b) Defense to liability for Fund
The Fund shall not be available to pay any
claim for removal costs or damages to a particular claimant, to the extent that the incident, removal costs, or damages are caused by the gross
negligence or willful misconduct of that claimant.
(c) Obligation of Fund by Federal officials
The President may promulgate regulations
designating one or more Federal officials who
may obligate money in accordance with subsection (a) of this section.
(d) Access to Fund by State officials
(1) Immediate removal
In accordance with regulations promulgated
under this section, the President, upon the request of the Governor of a State or pursuant
to an agreement with a State under paragraph
(2), may obligate the Fund for payment in an
amount not to exceed $250,000 for removal
costs consistent with the National Contingency Plan required for the immediate removal of a discharge, or the mitigation or prevention of a substantial threat of a discharge,
of oil.
(2) Agreements
(A) In general
The President shall enter into an agreement with the Governor of any interested
State to establish procedures under which
the Governor or a designated State official
may receive payments from the Fund for removal costs pursuant to paragraph (1).
(B) Terms
Agreements under this paragraph—
(i) may include such terms and conditions as may be agreed upon by the President and the Governor of a State;
(ii) shall provide for political subdivisions of the State to receive payments for
reasonable removal costs; and
(iii) may authorize advance payments
from the Fund to facilitate removal efforts.
(e) Regulations
The President shall—
(1) not later than 6 months after August 18,
1990, publish proposed regulations detailing
the manner in which the authority to obligate
the Fund and to enter into agreements under
this subsection shall be exercised; and

§ 2712

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(2) not later than 3 months after the close of
the comment period for such proposed regulations, promulgate final regulations for that
purpose.
(f) Rights of subrogation
Payment of any claim or obligation by the
Fund under this Act shall be subject to the
United States Government acquiring by subrogation all rights of the claimant or State to
recover from the responsible party.
(g) Audits
(1) In general
The Comptroller General of the United
States shall conduct an audit, including a detailed accounting of each disbursement from
the Fund in excess of $500,000 that is—
(A) disbursed by the National Pollution
Fund Center and not reimbursed by the responsible party; and
(B) administered and managed by the receiving Federal agencies, including final
payments made to agencies and contractors
and, to the extent possible, subcontractors.
(2) Frequency
The audits shall be conducted—
(A) at least once every 3 years after October 15, 2010, until 2016; and
(B) at least once every 5 years after the
last audit conducted under subparagraph
(A).
(3) Submission of results
The Comptroller shall submit the results of
each audit conducted under paragraph (1) to—
(A) the Senate Committee on Commerce,
Science, and Transportation;
(B) the House of Representatives Committee on Transportation and Infrastructure;
and
(C) the Secretary or Administrator of each
agency referred to in paragraph (1)(B).
(h) Period of limitations for claims
(1) Removal costs
No claim may be presented under this subchapter for recovery of removal costs for an
incident unless the claim is presented within 6
years after the date of completion of all removal actions for that incident.
(2) Damages
No claim may be presented under this section for recovery of damages unless the claim
is presented within 3 years after the date on
which the injury and its connection with the
discharge in question were reasonably discoverable with the exercise of due care, or in the
case of natural resource damages under section 2702(b)(2)(A) of this title, if later, the date
of completion of the natural resources damage
assessment under section 2706(e) of this title.
(3) Minors and incompetents
The time limitations contained in this subsection shall not begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age
or the date on which a legal representative
is duly appointed for the minor, or
(B) against an incompetent person until
the earlier of the date on which such incom-

Page 672

petent’s incompetency ends or the date on
which a legal representative is duly appointed for the incompetent.
(i) Limitation on payment for same costs
In any case in which the President has paid an
amount from the Fund for any removal costs or
damages specified under subsection (a) of this
section, no other claim may be paid from the
Fund for the same removal costs or damages.
(j) Obligation in accordance with plan
(1) In general
Except as provided in paragraph (2),
amounts may be obligated from the Fund for
the restoration, rehabilitation, replacement,
or acquisition of natural resources only in accordance with a plan adopted under section
2706(c) of this title.
(2) Exception
Paragraph (1) shall not apply in a situation
requiring action to avoid irreversible loss of
natural resources or to prevent or reduce any
continuing danger to natural resources or
similar need for emergency action.
(k) Preference for private persons in area affected by discharge
(1) In general
In the expenditure of Federal funds for removal of oil, including for distribution of supplies, construction, and other reasonable and
appropriate activities, under a contract or
agreement with a private person, preference
shall be given, to the extent feasible and practicable, to private persons residing or doing
business primarily in the area affected by the
discharge of oil.
(2) Limitation
This subsection shall not be considered to
restrict the use of Department of Defense resources.
(l) Reports
(1) In general
Within one year after October 15, 2010, and
annually thereafter, the President, through
the Secretary of the Department in which the
Coast Guard is operating, shall—
(A) provide a report on disbursements for
the preceding fiscal year from the Fund, regardless of whether those disbursements
were subject to annual appropriations, to—
(i) the Senate Committee on Commerce,
Science, and Transportation; and
(ii) the House of Representatives Committee on Transportation and Infrastructure; and
(B) make the report available to the public
on the National Pollution Funds Center
Internet website.
(2) Contents
The report shall include—
(A) a list of each disbursement of $250,000
or more from the Fund during the preceding
fiscal year; and
(B) a description of how each such use of
the Fund meets the requirements of subsection (a).

Page 673

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(3) Agency recordkeeping
Each Federal agency that receives amounts
from the Fund shall maintain records describing the purposes for which such funds were obligated or expended in such detail as the Secretary may require for purposes of the report
required under paragraph (1).
(Pub. L. 101–380, title I, § 1012, Aug. 18, 1990, 104
Stat. 498; Pub. L. 108–293, title VII, § 708(b), Aug.
9, 2004, 118 Stat. 1077; Pub. L. 111–281, title VII,
§ 708, Oct. 15, 2010, 124 Stat. 2984.)
REFERENCES IN TEXT
This Act, referred to in subsecs. (a)(5) and (f), is Pub.
L. 101–380, Aug. 18, 1990, 104 Stat. 484, known as the Oil
Pollution Act of 1990, which is classified principally to
this chapter. Sections 1004(d)(2) and 1006(e) are classified to sections 2704(d)(2) and 2706(e), respectively, of
this title. Section 4107 amended section 1223 of this
title and enacted provisions set out as a note under section 1223 of this title. Sections 4110 and 4111 enacted
provisions set out as a note and formerly set out as a
note under section 3703 of Title 46, Shipping. Section
4112 is not classified to the Code. Section 4117 enacted
provisions set out as a note under section 1295 of the
former Appendix to Title 46. Section 5006 is classified to
section 2736 of this title. Section 8103 enacted provisions formerly set out as a note under section 1651 of
Title 43, Public Lands. Title VII is classified to subchapter IV of this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 2701 of this title and Tables.
AMENDMENTS
2010—Subsec. (a)(5)(B) to (D). Pub. L. 111–281, § 708(a),
added subpar. (B) and redesignated former subpars. (B)
and (C) as (C) and (D), respectively.
Subsec. (g). Pub. L. 111–281, § 708(b)(1), added subsec.
(g) and struck out former subsec. (g). Prior to amendment, text read as follows: ‘‘The Comptroller General
shall audit all payments, obligations, reimbursements,
and other uses of the Fund, to assure that the Fund is
being properly administered and that claims are being
appropriately and expeditiously considered. The Comptroller General shall submit to the Congress an interim
report one year after August 18, 1990. The Comptroller
General shall thereafter audit the Fund as is appropriate. Each Federal agency shall cooperate with the
Comptroller General in carrying out this subsection.’’
Subsec. (l). Pub. L. 111–281, § 708(b)(2), added subsec.
(l).
2004—Subsec. (a)(6). Pub. L. 108–293 added par. (6).
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.
DELEGATION OF FUNCTIONS
Functions of President under subsecs. (a)(1), (3), (4),
(d), and (e) of this section delegated to Secretary of Department in which Coast Guard is operating by section
7(a)(1)(A), (c)(1), (3) of Ex. Ord. No. 12777, Oct. 18, 1991,
56 F.R. 54766, 54767, set out as a note under section 1321
of this title.
Functions of President under subsec. (a)(2) of this
section delegated to Federal trustees designated in National Contingency Plan by section 7(a)(2) of Ex. Ord.
No. 12777.
Functions of President under subsecs. (a)(5) and (c) of
this section delegated to each head of departments and

§ 2713

agencies having responsibility for implementation, administration, and enforcement of the Oil Pollution Act
of 1990 (Pub. L. 101–380, see Tables for classification)
and section 1321(b), (c), (d), (j), (l) of this title by section 7(a)(3), (b) of Ex. Ord. No. 12777.
Memorandum of the President of the United States,
Aug. 24, 1990, 55 F.R. 35291, which delegated to the Secretary of the Department in which the Coast Guard is
operating authority to make available from the Oil
Spill Liability Trust Fund not to exceed $50,000,000 in
any fiscal year to remove discharged oil or hazardous
substances from navigable waters, was revoked by Ex.
Ord. No. 12777, § 8(i), Oct. 18, 1991, 56 F.R. 54769, set out
as a note under section 1321 of this title.
USE OF FUND FOR SPILLS OF NATIONAL SIGNIFICANCE
Pub. L. 112–74, div. D, title V, § 563, Dec. 23, 2011, 125
Stat. 981, provided that: ‘‘For fiscal year 2012 and thereafter, notwithstanding section 1012(a)(5) of the Oil Pollution Act of 1990 (33 U.S.C. 2712(a)(5)) and 31 U.S.C.
3302, in the event that a spill of national significance
occurs, any payment of amounts from the Oil Spill Liability Trust Fund pursuant to section 1012(a)(1) of the
Oil Pollution Act of 1990 (33 U.S.C. 2712(a)(1)) for the removal costs incurred by the Coast Guard for such spill,
shall be credited directly to the accounts of the Coast
Guard current at the time such removal costs were incurred or when reimbursement is received: Provided,
That such amounts shall be merged with and, without
further appropriations, made available for the same
time period and the same purpose as the appropriation
to which it is credited.’’

§ 2713. Claims procedure
(a) Presentation
Except as provided in subsection (b) of this
section, all claims for removal costs or damages
shall be presented first to the responsible party
or guarantor of the source designated under section 2714(a) of this title.
(b) Presentation to Fund
(1) In general
Claims for removal costs or damages may be
presented first to the Fund—
(A) if the President has advertised or
otherwise notified claimants in accordance
with section 2714(c) of this title;
(B) by a responsible party who may assert
a claim under section 2708 of this title;
(C) by the Governor of a State for removal
costs incurred by that State; or
(D) by a United States claimant in a case
where a foreign offshore unit has discharged
oil causing damage for which the Fund is
liable under section 2712(a) of this title.
(2) Limitation on presenting claim
No claim of a person against the Fund may
be approved or certified during the pendency
of an action by the person in court to recover
costs which are the subject of the claim.
(c) Election
If a claim is presented in accordance with subsection (a) of this section and—
(1) each person to whom the claim is presented denies all liability for the claim, or
(2) the claim is not settled by any person by
payment within 90 days after the date upon
which (A) the claim was presented, or (B) advertising was begun pursuant to section 2714(b)
of this title, whichever is later,
the claimant may elect to commence an action
in court against the responsible party or guarantor or to present the claim to the Fund.


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