33 U.S.C. § 2706 — Natural resources

Page 884 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2706 short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not re- flected in the paid or settled partial claim. (b) Period (1) In general Except as provided in paragraph (2), the pe- riod for which interest shall be paid is the pe- riod beginning on the 30th day following the date on which the claim is presented to the re- sponsible party or guarantor and ending on the date on which the claim is paid. (2) Exclusion of period due to offer by guar- antor If the guarantor offers to the claimant an amount equal to or greater than that finally paid in satisfaction of the claim, the period de- scribed in paragraph (1) does not include the period beginning on the date the offer is made and ending on the date the offer is accepted. If the offer is made within 60 days after the date on which the claim is presented under section 2713(a) of this title, the period described in paragraph (1) does not include any period be- fore the offer is accepted. (3) Exclusion of periods in interests of justice If in any period a claimant is not paid due to reasons beyond the control of the responsible party or because it would not serve the inter- ests of justice, no interest shall accrue under this section during that period. (4) Calculation of interest (A) In general The interest paid for claims, other than Federal Government cost recovery claims, under this section shall be calculated at the average of the highest rate for commercial and finance company paper of maturities of 180 days or less obtaining on each of the days included within the period for which interest must be paid to the claimant, as published in the Federal Reserve Bulletin. (B) Federal cost recovery claims The interest paid for Federal Government cost recovery claims under this section shall be calculated in accordance with section 3717 of title 31. (5) Interest not subject to liability limits (A) In general Interest (including prejudgment interest) under this paragraph is in addition to dam- ages and removal costs for which claims may be asserted under section 2702 of this title and shall be paid without regard to any limitation of liability under section 2704 of this title. (B) Payment by guarantor The payment of interest under this sub- section by a guarantor is subject to section 2716(g) of this title. (Pub. L. 101–380, title I, § 1005, Aug. 18, 1990, 104 Stat. 493; Pub. L. 104–324, title XI, § 1142(a), Oct. 19, 1996, 110 Stat. 3991; Pub. L. 117–263, div. K, title CXIII, § 11311, Dec. 23, 2022, 136 Stat. 4086.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (a), is Pub. L. 101–380, Aug. 18, 1990, 104 Stat. 484, as amended, known as the Oil Pollution Act of 1990, which is classified principally to 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 2022—Subsec. (b)(4). Pub. L. 117–263 designated exist- ing provisions as subpar. (A) and inserted heading, sub- stituted ‘‘The interest paid for claims, other than Fed- eral Government cost recovery claims,’’ for ‘‘The inter- est paid’’, and added subpar. (B). 1996—Pub. L. 104–324, § 1142(a)(1), inserted ‘‘; partial payment of claims’’ after ‘‘Interest’’ in section catch- line. Subsec. (a). Pub. L. 104–324, § 1142(a)(2), inserted at end ‘‘The responsible party shall establish a procedure for the payment or settlement of claims for interim, short-term damages. Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ulti- mately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.’’ § 2706. Natural resources (a) Liability In the case of natural resource damages under section 2702(b)(2)(A) of this title, liability shall be— (1) to the United States Government for nat- ural resources belonging to, managed by, con- trolled by, or appertaining to the United States; (2) to any State for natural resources belong- ing to, managed by, controlled by, or apper- taining to such State or political subdivision thereof; (3) to any Indian tribe for natural resources belonging to, managed by, controlled by, or appertaining to such Indian tribe; and (4) in any case in which section 2707 of this title applies, to the government of a foreign country for natural resources belonging to, managed by, controlled by, or appertaining to such country. (b) Designation of trustees (1) In general The President, or the authorized representa- tive of any State, Indian tribe, or foreign gov- ernment, shall act on behalf of the public, In- dian tribe, or foreign country as trustee of natural resources to present a claim for and to recover damages to the natural resources. (2) Federal trustees The President shall designate the Federal of- ficials who shall act on behalf of the public as trustees for natural resources under this Act. (3) State trustees The Governor of each State shall designate State and local officials who may act on be- half of the public as trustee for natural re- sources under this Act and shall notify the President of the designation. (4) Indian tribe trustees The governing body of any Indian tribe shall designate tribal officials who may act on be- Page 885 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2706 half of the tribe or its members as trustee for natural resources under this Act and shall no- tify the President of the designation. (5) Foreign trustees The head of any foreign government may designate the trustee who shall act on behalf of that government as trustee for natural re- sources under this Act. (c) Functions of trustees (1) Federal trustees The Federal officials designated under sub- section (b)(2)— (A) shall assess natural resource damages under section 2702(b)(2)(A) of this title for the natural resources under their trustee- ship; (B) may, upon request of and reimburse- ment from a State or Indian tribe and at the Federal officials’ discretion, assess damages for the natural resources under the State’s or tribe’s trusteeship; and (C) shall develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the nat- ural resources under their trusteeship. (2) State trustees The State and local officials designated under subsection (b)(3)— (A) shall assess natural resource damages under section 2702(b)(2)(A) of this title for the purposes of this Act for the natural re- sources under their trusteeship; and (B) shall develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the nat- ural resources under their trusteeship. (3) Indian tribe trustees The tribal officials designated under sub- section (b)(4)— (A) shall assess natural resource damages under section 2702(b)(2)(A) of this title for the purposes of this Act for the natural re- sources under their trusteeship; and (B) shall develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the nat- ural resources under their trusteeship. (4) Foreign trustees The trustees designated under subsection (b)(5)— (A) shall assess natural resource damages under section 2702(b)(2)(A) of this title for the purposes of this Act for the natural re- sources under their trusteeship; and (B) shall develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the nat- ural resources under their trusteeship. (5) Notice and opportunity to be heard Plans shall be developed and implemented under this section only after adequate public notice, opportunity for a hearing, and consid- eration of all public comment. (d) Measure of damages (1) In general The measure of natural resource damages under section 2702(b)(2)(A) of this title is— (A) the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of, the damaged natural resources; (B) the diminution in value of those nat- ural resources pending restoration; plus (C) the reasonable cost of assessing those damages. (2) Determine costs with respect to plans Costs shall be determined under paragraph (1) with respect to plans adopted under sub- section (c). (3) No double recovery There shall be no double recovery under this Act for natural resource damages, including with respect to the costs of damage assess- ment or restoration, rehabilitation, replace- ment, or acquisition for the same incident and natural resource. (e) Damage assessment regulations (1) Regulations The President, acting through the Under Secretary of Commerce for Oceans and Atmos- phere and in consultation with the Adminis- trator of the Environmental Protection Agen- cy, the Director of the United States Fish and Wildlife Service, and the heads of other af- fected agencies, not later than 2 years after August 18, 1990, shall promulgate regulations for the assessment of natural resource dam- ages under section 2702(b)(2)(A) of this title re- sulting from a discharge of oil for the purpose of this Act. (2) Rebuttable presumption Any determination or assessment of dam- ages to natural resources for the purposes of this Act made under subsection (d) by a Fed- eral, State, or Indian trustee in accordance with the regulations promulgated under para- graph (1) shall have the force and effect of a rebuttable presumption on behalf of the trust- ee in any administrative or judicial proceeding under this Act. (f) Use of recovered sums Sums recovered under this Act by a Federal, State, Indian, or foreign trustee for natural re- source damages under section 2702(b)(2)(A) of this title shall be retained by the trustee in a re- volving trust account, without further appro- priation, for use only to reimburse or pay costs incurred by the trustee under subsection (c) with respect to the damaged natural resources. Any amounts in excess of those required for these reimbursements and costs shall be depos- ited in the Fund. (g) Compliance Review of actions by any Federal official where there is alleged to be a failure of that offi- cial to perform a duty under this section that is not discretionary with that official may be had by any person in the district court in which the person resides or in which the alleged damage to natural resources occurred. The court may award costs of litigation (including reasonable attorney and expert witness fees) to any pre- vailing or substantially prevailing party. Noth- ing in this subsection shall restrict any right which any person may have to seek relief under any other provision of law. Page 886 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2707 (Pub. L. 101–380, title I, § 1006, Aug. 18, 1990, 104 Stat. 494.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsecs. (b)(2)–(5), (c)(2)(A), (3)(A), (4)(A), (d)(3), (e), 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. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. Statutory Notes and Related Subsidiaries NOAA OIL AND HAZARDOUS SUBSTANCE SPILL COST REIMBURSEMENT Pub. L. 102–567, title II, § 205, Oct. 29, 1992, 106 Stat. 4282, provided that: ‘‘(a) TREATMENT OF AMOUNTS RECEIVED AS REIM- BURSEMENT OF EXPENSES.—Notwithstanding any other provision of law, amounts received by the United States as reimbursement of expenses related to oil or hazardous substance spill response activities, or nat- ural resource damage assessment, restoration, rehabili- tation, replacement, or acquisition activities, con- ducted (or to be conducted) by the National Oceanic and Atmospheric Administration— ‘‘(1) shall be deposited into the Fund; ‘‘(2) shall be available, without fiscal year limita- tion and without apportionment, for use in accord- ance with the law under which the activities are con- ducted; and ‘‘(3) shall not be considered to be an augmentation of appropriations. ‘‘(b) APPLICATION.—Subsection (a) shall apply to amounts described in subsection (a) that are received— ‘‘(1) after the date of the enactment of this Act [Oct. 29, 1992]; or ‘‘(2) with respect to the oil spill associated with the grounding of the EXXON VALDEZ. ‘‘(c) DEFINITIONS.—For purposes of this section— ‘‘(1) the term ‘Fund’ means the Damage Assessment and Restoration Revolving Fund of the National Oce- anic and Atmospheric Administration referred to in title I of Public Law 101–515 under the heading ‘Na- tional Oceanic and Atmospheric Administration’ (104 Stat. 2105) [set out as a note below]; and ‘‘(2) the term ‘expenses’ includes incremental and base salaries, ships, aircraft, and associated indirect costs, except the term does not include base salaries and benefits of National Oceanic and Atmospheric Administration Support Coordinators.’’ DAMAGE ASSESSMENT AND RESTORATION REVOLVING FUND; DEPOSITS; AVAILABILITY; TRANSFER Pub. L. 101–515, title I, Nov. 5, 1990, 104 Stat. 2105, pro- vided that: ‘‘For contingency planning, response and natural resource damage assessment and restoration activities, pursuant to the Comprehensive Environ- mental Response, Compensation[,] and Liability Act [of 1980], as amended [42 U.S.C. 9601 et seq.], the Federal Water Pollution Control Act, as amended [33 U.S.C. 1251 et seq.], the Marine Protection, Research[,] and Sanc- tuaries Act [of 1972], as amended [16 U.S.C. 1431et seq., 1447 et seq.; 33 U.S.C. 1401 et seq., 2801 et seq.], and the Oil Pollution Act of 1990 [33 U.S.C. 2701 et seq.], $5,000,000 to remain available until expended: Provided, That notwithstanding any other provision of law, in fiscal year 1991 and thereafter, sums provided by any party or governmental entity for natural resource dam- age assessment, response or restoration activities con- ducted or to be conducted by the National Oceanic and Atmospheric Administration as a result of any injury to the marine environment and/or resources for which the National Oceanic and Atmospheric Administration acts as trustee of said marine environment and/or re- sources, shall be deposited in the Damage Assessment and Restoration Revolving Fund and said funds so de- posited shall remain available until expended: Provided further, That for purposes of obligation and expenditure in fiscal year 1991 and thereafter, sums available in the Damage Assessment and Restoration Revolving Fund may be transferred, upon the approval of the Secretary of Commerce or his delegate, to the Operations, Re- search, and Facilities appropriation of the National Oceanic and Atmospheric Administration.’’ Executive Documents DELEGATION OF FUNCTIONS Functions of President under subsec. (b)(3) and (4) of this section delegated to Administrator of Environ- mental Protection Agency by section 8(c) of Ex. Ord. No. 12777, Oct. 18, 1991, 56 F.R. 54768, set out as a note under section 1321 of this title. § 2707. Recovery by foreign claimants (a) Required showing by foreign claimants (1) In general In addition to satisfying the other require- ments of this Act, to recover removal costs or damages resulting from an incident a foreign claimant shall demonstrate that— (A) the claimant has not been otherwise compensated for the removal costs or dam- ages; and (B) recovery is authorized by a treaty or executive agreement between the United States and the claimant’s country, or the Secretary of State, in consultation with the Attorney General and other appropriate offi- cials, has certified that the claimant’s coun- try provides a comparable remedy for United States claimants. (2) Exceptions Paragraph (1)(B) shall not apply with respect to recovery by a resident of Canada in the case of an incident described in subsection (b)(4). (b) Discharges in foreign countries A foreign claimant may make a claim for re- moval costs and damages resulting from a dis- charge, or substantial threat of a discharge, of oil in or on the territorial sea, internal waters, or adjacent shoreline of a foreign country, only if the discharge is from— (1) an Outer Continental Shelf facility or a deepwater port; (2) a vessel in the navigable waters; (3) a vessel carrying oil as cargo between 2 places in the United States; or (4) a tanker that received the oil at the ter- minal of the pipeline constructed under the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1651 et seq.), for transportation to a place in the United States, and the discharge or threat occurs prior to delivery of the oil to that place. (c) ‘‘Foreign claimant’’ defined In this section, the term ‘‘foreign claimant’’ means— (1) a person residing in a foreign country; (2) the government of a foreign country; and (3) an agency or political subdivision of a foreign country. (Pub. L. 101–380, title I, § 1007, Aug. 18, 1990, 104 Stat. 496.)