43 U.S.C. § 1845 — Claims procedure

Page 604 TITLE 43—PUBLIC LANDS § 1845 1 See References in Text note below. Par. (2). Pub. L. 97–212, § 4(2), substituted ‘‘fifteen days after the date on which the vessel first returns to a port after discovering such damages’’ for ‘‘five days after the date on which such damages were discovered’’. Par. (3). Pub. L. 97–212, § 4(3), inserted ‘‘the latest’’ after ‘‘no record on’’, struck out ‘‘the’’ before ‘‘Notice to Mariners’’, and substituted ‘‘in effect at least 15 days prior to the date’’ for ‘‘on the date’’ and ‘‘where such damages occurred, except that in the case of damages caused by a pipeline, the presumption established by this section shall obtain whether or not there was any such record of the pipeline on the damage date’’ for ‘‘in such area’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–212 applicable with respect to claims for damages filed on or after June 30, 1982, with the Secretary of Commerce under section 1845(a) of this title, with provision for the refiling of pre- viously filed claims under certain circumstances, see section 9 of Pub. L. 97–212, set out as a note under sec- tion 1841 of this title. § 1845. Claims procedure (a) Filing requirement; time to file Any commercial fisherman suffering damages compensable under this subchapter may file a claim for compensation with the Secretary under subsection (d)(1). (b) Transmittal of copy of claim to Secretary of the Interior; reference to Secretary Upon receipt of any claim under this section, the Secretary shall transmit a copy of the claim to the Secretary of the Interior and shall take such further action regarding the claim that is required under subsection (d). (c) Notification to persons engaged in activities associated with Outer Continental Shelf en- ergy activities; response of persons notified; submittal of evidence The Secretary of the Interior shall make rea- sonable efforts to notify all persons known to have engaged in activities associated with Outer Continental Shelf energy activity in the vicin- ity. Each such person shall promptly notify the Secretary and the Secretary of the Interior as to whether he admits or denies responsibility for the damages claimed. Any such person, includ- ing lessees or permittees or their contractors or subcontractors, may submit evidence at any proceeding conducted with respect to such claim. (d) Acceptance of claim by Secretary; time to render decision; review of initial determina- tion (1) The Secretary shall, under regulations pre- scribed pursuant to section 1843(a) of this title, specify the time, form and manner in which claims must be filed. (2) The Secretary may not accept any claim that does not meet the filing requirements spec- ified under paragraph (1), and shall give a claim- ant whose claim is not accepted written notice of the reasons for nonacceptance. Such written notice must be given to the claimant within 30 days after the date on which the claim was filed and if the claimant does not refile an acceptable claim within 30 days after the date of such writ- ten notice, the claimant is not eligible for com- pensation under this subchapter for the damages concerned; except that the Secretary— (A) shall in any case involving a good faith effort by the claimant to meet such filing re- quirements, or (B) may in any case involving extenuating circumstances, accept a claim that does not meet the 30-day refiling requirement. (3)(A) The Secretary shall make an initial de- termination with respect to the claim within 60 days after the day on which the claim is accept- ed for filing. Within 30 days after the day on which the Secretary issues an initial determina- tion on a claim, the claimant, or any other in- terested person who submitted evidence relating to the initial determination, may petition the Secretary for a review of that determination. (B) If a petition for the review of an initial de- termination is not filed with the Secretary within the 30-day period provided under subpara- graph (A), the initial determination shall there- after be treated as a final determination by the Secretary on the claim involved. (C) If a petition for review of an initial deter- mination is timely filed under subparagraph (A), the Secretary shall allow the petitioner 30 days after the day on which the petition is received to submit written or oral evidence relating to the initial determination. The Secretary shall then undertake such review and, on the basis of such review, issue a final determination no later than the 60th day after the day on which the Secretary received the petition for review of an initial determination. (e) Claim preparation fees; attorney’s fees If the decision of the Secretary under sub- section (d) is in favor of the commercial fisher- man filing the claim, the Secretary, as a part of the amount awarded, shall include reasonable claim preparation fees and reasonable attorney’s fees, if any, incurred by the claimant in pur- suing the claim. (f) Powers of Secretary (1) For purposes of any proceeding conducted pursuant to this section, the Secretary shall have the power to administer oaths and subpena the attendance or testimony of witnesses and the production of books, records, and other evi- dence relative or pertinent to the issues being presented for determination. (2) In any proceeding conducted pursuant to this section with respect to a claim for damages resulting from activities on any area of the Outer Continental Shelf, the Secretary shall consider evidence of obstructions in such area which have been identified pursuant to the sur- vey conducted under section 1847 1 of this title. (g) Place of proceeding Any proceeding conducted with respect to an initial determination on a claim under sub- section (d)(3)(A) shall be conducted within such United States judicial district as may be mutu- ally agreeable to the claimant and the Secretary or, if no agreement can be reached, within the United States judicial district in which the home port of the claimant is located. Page 605 TITLE 43—PUBLIC LANDS § 1845 2 So in original. Probably should be ‘‘subsequently’’. (h) Certification and disbursement of award; subrogation of rights; payment of costs of proceedings (1) The amount awarded in an initial deter- mination by the Secretary under subsection (d) shall be immediately disbursed, subject to the limitations of this section, by the Secretary if the claimant— (A) states in writing that he will not peti- tion for review of the initial determination; and (B) enters into an agreement with the Sec- retary to repay to the Secretary all or any part of the amount of the award if, after re- view under subsection (d)(3)(C) or, if applica- ble, after judicial review, the amount of the award, or any part thereof, is not sustained. (2) Upon payment of a claim by the Secretary pursuant to this subsection, the Secretary shall acquire by subrogation all rights of the claim- ant against any person found to be responsible for the damages with respect to which such claim was made. Any moneys recovered by the Secretary through subrogation shall be depos- ited into the Fund. (3) Any person who denies responsibility for damages with respect to which a claim is made and who is subquently 2 found to be responsible for such damages, and any commercial fisher- man who files a claim for damages and who is subsequently found to be responsible for such damages, shall pay the costs of the proceedings under this section with respect to such claim. (i) Judicial review Any claimant or other person who suffers a legal wrong or who is adversely affected or ag- grieved by a final determination of the Sec- retary under subsection (d), may, no later than 30 days after such determination is made, seek judicial review of the determination in the United States district court for such United States judicial district as may be mutually agreeable to the parties concerned or, if no agreement can be reached, in the United States district court for the United States judicial dis- trict in which is located the home port of the claimant. (Pub. L. 95–372, title IV, § 405, Sept. 18, 1978, 92 Stat. 688; Pub. L. 97–212, § 5, June 30, 1982, 96 Stat. 145; Pub. L. 98–498, title IV, § 420(3), (4), Oct. 19, 1984, 98 Stat. 2309, 2310.) Editorial Notes REFERENCES IN TEXT Section 1847 of this title, referred to in subsec. (f)(2), was repealed by Pub. L. 97–212, § 6(a), June 30, 1982, 96 Stat. 147. AMENDMENTS 1984—Subsec. (a). Pub. L. 98–498, § 420(3), substituted ‘‘under subsection (d)(1)’’ for ‘‘, except that no such claim may be filed more than 60 days after the date of discovery of the damages with respect to which such claim is made’’. Subsec. (d)(1). Pub. L. 98–498, § 420(4), inserted ‘‘time,’’ before ‘‘form’’. 1982—Subsec. (b). Pub. L. 97–212, § 5(1), struck out pars. (1) and (2) designations, and substituted ‘‘shall take such further action regarding the claim that is re- quired under subsection (d)’’ for ‘‘refer such matter to a hearing examiner appointed under section 3105 of title 5’’. Subsec. (c). Pub. L. 97–212, § 5(2), substituted ‘‘pro- ceeding’’ for ‘‘hearing’’. Subsec. (d). Pub. L. 97–212, § 5(3), substituted provi- sions relating to the filing of claims with the Secretary of the Interior in order to be eligible for compensation under this subchapter, the time for such filing, the time in which the Secretary must make his initial de- termination with respect to the claim, and the submis- sion of evidence by the petitioner when reviewing an initial determination by the Secretary, for provisions relating to the time in which a hearing examiner has to render a decision. Subsec. (e). Pub. L. 97–212, § 5(4), substituted provi- sions that if the decision of the Secretary is in favor of the commercial fisherman filing the claim, the Sec- retary shall award to such claimant reasonable attor- ney’s fees and claim preparation fees incurred by claimant in pursuing such claim for provisions that upon a decision in favor of the claimant fisherman, the hearing examiner include in the award reasonable at- torney’s fees incurred by the claimant in pursuing such claim. Subsec. (f). Pub. L. 97–212, § 5(5), substituted ‘‘the Sec- retary’’ for ‘‘hearing examiner’’ and ‘‘proceeding’’ for ‘‘hearing’’ wherever appearing. The amendment which directed the substitution of ‘‘the Secretary’’ for ‘‘hear- ing examiner’’ was executed by substituting ‘‘the Sec- retary’’ for ‘‘the hearing examiner’’, as the probable in- tent of Congress, to avoid repeating the article ‘‘the’’ before ‘‘Secretary’’ in two places. Subsec. (g). Pub. L. 97–212, § 5(6), substituted ‘‘Any proceeding conducted with respect to an initial deter- mination on a claim under subsection (d)(3)(A) shall be conducted within such United States judicial district as may be mutually agreeable to the claimant and the Secretary or, if no agreement can be reached, within the United States judicial district in which the home port of the claimant is located’’ for ‘‘A hearing con- ducted under this section shall be conducted within the United States judicial district within which the matter giving rise to the claim occurred, or, if such matter oc- curred within two or more districts, in any of the af- fected districts, or, if such matter occurred outside of any district, in the nearest district’’. Subsec. (h)(1). Pub. L. 97–212, § 5(7)(A), substituted provisions that the amount awarded in an initial deter- mination by the Secretary under subsec. (d) be imme- diately disbursed by the Secretary if the claimant states in writing that he will not petition for review of the initial determination and he enters into an agree- ment with the Secretary to repay to the Secretary all or any part of the award that is not sustained upon later judicial review for provisions that upon a decision of the hearing examiner and in absence of judicial re- view, any amount to be paid would be certified to the Secretary who would promptly disburse the award and that such decision of the hearing examiner was not re- viewable by the Secretary. Subsec. (h)(2). Pub. L. 97–212, § 5(7)(B), inserted provi- sion that any moneys recovered by the Secretary through subrogation shall be deposited into the Fund. Subsec. (i). Pub. L. 97–212, § 5(8), substituted ‘‘Any claimant or other person who suffers a legal wrong or who is adversely affected or aggrieved by a final deter- mination of the Secretary under subsection (d), may, no later than 30 days after such determination is made, seek judicial review of the determination in the United States district court for such United States judicial district as may be mutually agreeable to the parties concerned or, if no agreement can be reached, in the United States district court for the United States judi- cial district in which is located the home port of the claimant’’ for ‘‘Any person who suffers legal wrong or who is adversely affected or aggrieved by the decision of a hearing examiner under this section may, no later than 60 days after such decision is made, seek judicial Page 606 TITLE 43—PUBLIC LANDS § 1846 1 So in original. Probably should be ‘‘determining—’’. review of such decision in the United States court of appeals for the circuit in which the damage occurred, or if such damage occurred outside of any circuit, in the United States court of appeals for the nearest cir- cuit’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–212 applicable with respect to claims for damages filed on or after June 30, 1982, with the Secretary of Commerce under section 1845(a) of this title, with provision for the refiling of pre- viously filed claims under certain circumstances, see section 9 of Pub. L. 97–212, set out as a note under sec- tion 1841 of this title. COMPENSATION FOR CERTAIN FISHING VESSEL AND GEAR DAMAGE; APPLICATION Authority to owners or operators of fishing vessels and commercial fishermen failing to make application for compensation within the time limitations of this section or section 1980 of Title 22, Foreign Relations and Intercourse, to make application for compensation within the 60-day period beginning on Dec. 22, 1980, see section 240(a), (b)(1) of Pub. L. 96–561, title II, Dec. 22, 1980, 94 Stat. 3300, set out as a note under section 1980 of Title 22. § 1846. Repealed. Pub. L. 104–66, title I, § 1021(f), Dec. 21, 1995, 109 Stat. 713 Section, Pub. L. 95–372, title IV, § 406, Sept. 18, 1978, 92 Stat. 689, directed Secretary to submit annual reports to Congress setting forth Fishermen’s Contingency Fund damage descriptions and compensation amounts and, in first annual report, to evaluate feasibility of (1) fine or penalty impositions, or (2) bonding require- ments. § 1847. Repealed. Pub. L. 97–212, § 6(a), June 30, 1982, 96 Stat. 147 Section, Pub. L. 95–372, title IV, § 407, Sept. 18, 1978, 92 Stat. 690, related to survey of obstructions on Outer Continental Shelf and development of charts for com- mercial fishermen. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal effective June 30, 1982, and applicable with re- spect to claims for damages filed on or after such date, with the Secretary of Commerce under section 1845(a) of this title, see section 9(a) of Pub. L. 97–212, set out as an Effective Date of 1982 Amendment note under sec- tion 1841. SUBCHAPTER III—MISCELLANEOUS PROVISIONS § 1861. Repealed. Pub. L. 99–367, § 2(b), July 31, 1986, 100 Stat. 774 Section, Pub. L. 95–372, title VI, § 601, Sept. 18, 1978, 92 Stat. 693, required Secretary of the Interior, within six months of Sept. 18, 1978, and in his annual report there- after, to report to Comptroller General on shut-in and flaring oil and gas wells and required Comptroller Gen- eral, within six months after receipt of report, to re- view and evaluate methodology used by Secretary in allowing wells to be shut-in or flare natural gas and submit his findings and recommendations to Congress. § 1862. Natural gas distribution (a) Expanded participation by local distribution companies in acquisition of leases and devel- opment of natural gas resources The purpose of this section is to encourage ex- panded participation by local distribution com- panies in acquisition of leases and development of natural gas resources on the Outer Conti- nental Shelf by facilitating the transportation in interstate commerce of natural gas, which is produced from a lease located on the Outer Con- tinental Shelf and owned, in whole or in part, by a local distribution company, from such lease to the service area of such local distribution com- pany. (b) Application and issuance of certificates of public convenience and necessity for trans- portation of natural gas The Federal Energy Regulatory Commission shall, after opportunity for presentation of writ- ten and oral views, promulgate and publish in the Federal Register a statement of Commission policy which carries out the purpose of this sec- tion and sets forth the standards under which the Commission will consider applications for, and, as appropriate, issue certificates of public convenience and necessity, pursuant to section 717f of title 15, for the transportation in inter- state commerce of natural gas, which is pro- duced from a lease located on the Outer Conti- nental Shelf and owned, in whole or in part, by a local distribution company, from such lease to the service area of such local distribution com- pany. Such statement of policy shall specify the criteria, limitations, or requirements the Com- mission will apply in determing— 1 (1) whether the application of any local dis- tribution company qualifies for consideration under the statement of policy; and (2) whether the public convenience and ne- cessity will be served by the issuance of the requested certificate of transportation. Such statement of policy shall also set forth the terms or limitations on which the Commission may condition, pursuant to section 717f of title 15, the issuance of a certificate of transportation under such statement of policy. To the max- imum extent practicable, such statement shall be promulgated and published within one year after September 18, 1978. (c) Definitions For purposes of this section, the term— (1) ‘‘local distribution company’’ means any person— (A) engaged in the distribution of natural gas at retail, including any subsidiary or af- filiate thereof engaged in the exploration and production of natural gas; and (B) regulated, or operated as a public util- ity, by a State or local government or agen- cy thereof; (2) ‘‘interstate commerce’’ shall have the same meaning as such term has under section 717a(7) of title 15; and (3) ‘‘Commission’’ means the Federal Energy Regulatory Commission. (Pub. L. 95–372, title VI, § 603, Sept. 18, 1978, 92 Stat. 694.) § 1863. Unlawful employment practices; regula- tions Each agency or department given responsi- bility for the promulgation or enforcement of