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(continued)
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 the
Secretary has commenced and is diligently prosecuting an
action under this subsection,
(ii) with respect to which a State has commenced and is
diligently prosecuting an action under a State law comparable
to this subsection, or
(iii) for which the Administrator, the Secretary, or the
State has issued a final order not subject to further
judicial review and the violator has paid a penalty assessed
under this subsection, or such comparable State law, as the
case may be,

shall not be the subject of a civil penalty action under
subsection (d) of this section or section 1321(b) of this title
or section 1365 of this title.
(B) Applicability of limitation with respect to citizen suits
The limitations contained in subparagraph (A) on civil
penalty actions under section 1365 of this title shall not
apply with respect to any violation for which -
(i) a civil action under section 1365(a)(1) of this title
has been filed prior to commencement of an action under this
subsection, or
(ii) notice of an alleged violation of section 1365(a)(1)
of this title has been given in accordance with section
1365(b)(1)(A) of this title prior to commencement of an
action under this subsection and an action under section
1365(a)(1) of this title with respect to such alleged
violation is filed before the 120th day after the date on
which such notice is given.
(7) Effect of action on compliance
No action by the Administrator or the Secretary under this
subsection shall affect any person's obligation to comply with
any section of this chapter or with the terms and conditions of
any permit issued pursuant to section 1342 or 1344 of this title.
(8) Judicial review
Any person against whom a civil penalty is assessed under this
subsection or who commented on the proposed assessment of such
penalty in accordance with paragraph (4) may obtain review of
such assessment -
(A) 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
(B) 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 the Secretary, as the case may be,
and the Attorney General. The Administrator or the Secretary
shall promptly file in such court a certified copy of the record
on which the order was issued. Such court shall not set aside or
remand such order unless there is not substantial evidence in the
record, taken as a whole, to support the finding of a violation
or unless the Administrator's or Secretary's assessment of the
penalty constitutes an abuse of discretion and shall not impose
additional civil penalties for the same violation unless the
Administrator's or Secretary's assessment of the penalty
constitutes an abuse of discretion.
(9) Collection
If any person fails to pay an assessment of a civil penalty -
(A) after the order making the assessment has become final,
or
(B) after a court in an action brought under paragraph (8)
has entered a final judgment in favor of the Administrator or
the Secretary, as the case may be,

the Administrator or the 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 paragraph 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.
(10) 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 subsection. In case of contumacy or
refusal to obey a subpoena issued pursuant to this paragraph 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.
(11) Protection of existing procedures
Nothing in this subsection shall change the procedures existing
on the day before February 4, 1987, under other subsections of
this section for issuance and enforcement of orders by the
Administrator.

-SOURCE-
(June 30, 1948, ch. 758, title III, Sec. 309, as added Pub. L.
92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 859; amended Pub. L.
95-217, Secs. 54(b), 55, 56, 67(c)(2), Dec. 27, 1977, 91 Stat.
1591, 1592, 1606; Pub. L. 100-4, title III, Secs. 312, 313(a)(1),
(b)(1), (c), 314(a), Feb. 4, 1987, 101 Stat. 42, 45, 46; Pub. L.
101-380, title IV, Sec. 4301(c), Aug. 18, 1990, 104 Stat. 537.)

-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec. (c)(7), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (Sec. 6901 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 6901 of Title 42 and Tables.


-MISC1-
AMENDMENTS
1990 - Subsec. (c)(1)(A), (2)(A), (3)(A). Pub. L. 101-380
inserted "1321(b)(3)," after "1318,".
1987 - Subsec. (c). Pub. L. 100-4, Sec. 312, amended subsec. (c)
generally, revising provisions of par. (1), adding pars. (2), (3),
(5), and (7), redesignating former pars. (2) and (4) as (3) and
(6), respectively, and revising provisions of redesignated par.
(4).
Subsec. (d). Pub. L. 100-4, Sec. 313(a)(1), inserted ", or any
requirement imposed in a pretreatment program approved under
section 1342(a)(3) or 1342(b)(8) of this title," after second
reference to "State,".
Pub. L. 100-4, Sec. 313(b)(1), substituted "$25,000 per day for
each violation" for "$10,000 per day of such violation".
Pub. L. 100-4, Sec. 313(c), inserted at end "In determining the
amount of a civil penalty the court shall consider the seriousness
of the violation or violations, the economic benefit (if any)
resulting from the violation, any history of such violations, any
good-faith efforts to comply with the applicable requirements, the
economic impact of the penalty on the violator, and such other
matters as justice may require. For purposes of this subsection, a
single operational upset which leads to simultaneous violations of
more than one pollutant parameter shall be treated as a single
violation."
Subsec. (g). Pub. L. 100-4, Sec. 314(a), added subsec. (g).
1977 - Subsec. (a)(1). Pub. L. 95-217, Secs. 55(a), 67(c)(2)(A),
substituted "1318, 1328, or 1345 of this title" for "or 1318 of
this title" and "1342 or 1344 of this title" for "1342 of this
title".
Subsec. (a)(2). Pub. L. 95-217, Sec. 56(a), substituted "except
where an extension has been granted under paragraph (5)(B) of this
subsection, the Administrator shall enforce any permit condition or
limitation" for "the Administrator shall enforce any permit
condition or limitation".
Subsec. (a)(3). Pub. L. 95-217, Secs. 55(b), 67(c)(2)(B),
substituted "1318, 1328, or 1345 of this title" for "or 1318 of
this title" and inserted "or in a permit issued under section 1344
of this title by a State" after "in a permit issued under section
1342 of this title by him or by a State".
Subsec. (a)(4). Pub. L. 95-217, Sec. 56(b), struck out provision
that any order issued under this subsection had to be by personal
service and had to state with reasonable specificity the nature of
the violation and a time for compliance, not to exceed thirty days,
which the Administrator determined to be reasonable, taking into
account the seriousness of the violation and any good faith efforts
to comply with applicable requirements. See section subsec. (a)(5)
of this section.
Subsec. (a)(5), (6). Pub. L. 95-217, Sec. 56(c), added pars. (5)
and (6).
Subsec. (c)(1). Pub. L. 95-217, Sec. 67(c)(2)(C), substituted "by
a State or in a permit issued under section 1344 of this title by a
State, shall be punished" for "by a State, shall be punished".
Subsec. (d). Pub. L. 95-217, Secs. 55(c), 67(c)(2)(D),
substituted "1318, 1328, or 1345 of this title" for "or 1318 of
this title" and inserted "or in a permit issued under section 1344
of this title by a State," after "permit issued under section 1342
of this title by the Administrator, or by a State,".
Subsec. (f). Pub. L. 95-217, Sec. 54(b), added subsec. (f).

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.

SAVINGS PROVISION
Section 313(a)(2) of Pub. L. 100-4 provided that: "No State shall
be required before July 1, 1988, to modify a permit program
approved or submitted under section 402 of the Federal Water
Pollution Control Act [33 U.S.C. 1342] as a result of the amendment
made by paragraph (1) [amending this section]."

DEPOSIT OF CERTAIN PENALTIES INTO OIL SPILL LIABILITY TRUST FUND
Penalties paid pursuant to subsection (c) of this section and
sections 1321 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.

INCREASED PENALTIES NOT REQUIRED UNDER STATE PROGRAMS
Section 313(b)(2) of Pub. L. 100-4 provided that: "The Federal
Water Pollution Control Act [33 U.S.C. 1251 et seq.] shall not be
construed as requiring a State to have a civil penalty for
violations described in section 309(d) of such Act [33 U.S.C.
1319(d)] which has the same monetary amount as the civil penalty
established by such section, as amended by paragraph (1) [amending
this section]. Nothing in this paragraph shall affect the
Administrator's authority to establish or adjust by regulation a
minimum acceptable State civil penalty.

ACTIONS BY SURGEON GENERAL RELATING TO INTERSTATE POLLUTION
Act July 9, 1956, ch. 518, Sec. 5, 70 Stat. 507, provided that
actions by the Surgeon General with respect to water pollutants
under section 2(d) of act June 30, 1948, ch. 758, 62 Stat. 1155, as
in effect prior to July 9, 1956, which had been completed prior to
such date, would still be subject to the terms of section 2(d) of
act June 30, 1948, in effect prior to the July 9, 1956 amendment,
but that actions with respect to such pollutants would nevertheless
subsequently be possible in accordance with the terms of act June
30, 1948, as amended by act July 9, 1956.

-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1256, 1321, 1342, 1344,
1365, 1368, 1377 of this title; title 26 section 9509; title 42
sections 7412, 9606, 9607.

-FOOTNOTE-
(!1) So in original.


-End-



-CITE-
33 USC Sec. 1320 01/19/04

-EXPCITE-
TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT

-HEAD-
Sec. 1320. International pollution abatement

-STATUTE-
(a) Hearing; participation by foreign nations
Whenever the Administrator, upon receipts of reports, surveys, or
studies from any duly constituted international agency, has reason
to believe that pollution is occurring which endangers the health
or welfare of persons in a foreign country, and the Secretary of
State requests him to abate such pollution, he shall give formal
notification thereof to the State water pollution control agency of
the State or States in which such discharge or discharges originate
and to the appropriate interstate agency, if any. He shall also
promptly call such a hearing, if he believes that such pollution is
occurring in sufficient quantity to warrant such action, and if
such foreign country has given the United States essentially the
same rights with respect to the prevention and control of pollution
occurring in that country as is given that country by this
subsection. The Administrator, through the Secretary of State,
shall invite the foreign country which may be adversely affected by
the pollution to attend and participate in the hearing, and the
representative of such country shall, for the purpose of the
hearing and any further proceeding resulting from such hearing,
have all the rights of a State water pollution control agency.
Nothing in this subsection shall be construed to modify, amend,
repeal, or otherwise affect the provisions of the 1909 Boundary
Waters Treaty between Canada and the United States or the Water
Utilization Treaty of 1944 between Mexico and the United States (59
Stat. 1219), relative to the control and abatement of pollution in
waters covered by those treaties.
(b) Functions and responsibilities of Administrator not affected
The calling of a hearing under this section shall not be
construed by the courts, the Administrator, or any person as
limiting, modifying, or otherwise affecting the functions and
responsibilities of the Administrator under this section to
establish and enforce water quality requirements under this
chapter.
(c) Hearing board; composition; findings of fact; recommendations;
implementation of board's decision
The Administrator shall publish in the Federal Register a notice
of a public hearing before a hearing board of five or more persons
appointed by the Administrator. A majority of the members of the
board and the chairman who shall be designated by the Administrator
shall not be officers or employees of Federal, State, or local
governments. On the basis of the evidence presented at such
hearing, the board shall within sixty days after completion of the
hearing make findings of fact as to whether or not such pollution
is occurring and shall thereupon by decision, incorporating its
findings therein, make such recommendations to abate the pollution
as may be appropriate and shall transmit such decision and the
record of the hearings to the Administrator. All such decisions
shall be public. Upon receipt of such decision, the Administrator
shall promptly implement the board's decision in accordance with
the provisions of this chapter.
(d) Report by alleged polluter
In connection with any hearing called under this subsection, the
board is authorized to require any person whose alleged activities
result in discharges causing or contributing to pollution to file
with it in such forms as it may prescribe, a report based on
existing data, furnishing such information as may reasonably be
required as to the character, kind, and quantity of such discharges
and the use of facilities or other means to prevent or reduce such
discharges by the person filing such a report. Such report shall be
made under oath or otherwise, as the board may prescribe, and shall
be filed with the board within such reasonable period as it may
prescribe, unless additional time is granted by it. Upon a showing
satisfactory to the board by the person filing such report that
such report or portion thereof (other than effluent data), to which
the Administrator has access under this section, if made public
would divulge trade secrets or secret processes of such person, the
board shall consider such report or portion thereof confidential
for the purposes of section 1905 of title 18. If any person
required to file any report under this paragraph shall fail to do
so within the time fixed by the board for filing the same, and such
failure shall continue for thirty days after notice 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.

-SOURCE-
(June 30, 1948, ch. 758, title III, Sec. 310, as added Pub. L.
92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 860.)


-MISC1-
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, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note
under section 5376 of Title 5.

-End-



-CITE-
33 USC Sec. 1321 01/19/04

-EXPCITE-
TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT

-HEAD-
Sec. 1321. Oil and hazardous substance liability

-STATUTE-
(a) Definitions
For the purpose of this section, the term -
(1) "oil" means oil of any kind or in any form, including, but
not limited to, petroleum, fuel oil, sludge, oil refuse, and oil
mixed with wastes other than dredged spoil;
(2) "discharge" includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping, but
excludes (A) discharges in compliance with a permit under section
1342 of this title, (B) discharges resulting from circumstances
identified and reviewed and made a part of the public record with
respect to a permit issued or modified under section 1342 of this
title, and subject to a condition in such permit,,(!1) (C)
continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under
section 1342 of this title, which are caused by events occurring
within the scope of relevant operating or treatment systems, and
(D) discharges incidental to mechanical removal authorized by the
President under subsection (c) of this section;

(3) "vessel" means every description of watercraft or other
artificial contrivance used, or capable of being used, as a means
of transportation on water other than a public vessel;
(4) "public vessel" means a vessel owned or bareboat-chartered
and operated by the United States, or by a State or political
subdivision thereof, or by a foreign nation, except when such
vessel is engaged in commerce;
(5) "United States" means the States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, Guam, American Samoa, the Virgin Islands, and
the Trust Territory of the Pacific Islands;
(6) "owner or operator" means (A) in the case of a vessel, any
person owning, operating, or chartering by demise, such vessel,
and (B) in the case of an onshore facility, and an offshore
facility, any person owning or operating such onshore facility or
offshore facility, and (C) in the case of any abandoned offshore
facility, the person who owned or operated such facility
immediately prior to such abandonment;
(7) "person" includes an individual, firm, corporation,
association, and a partnership.
(8) "remove" or "removal" refers to containment and removal of
the oil or hazardous substances from the water and shorelines or
the taking of such other actions as may be necessary to prevent,
minimize, or mitigate damage to the public health or welfare,
including, but not limited to, fish, shellfish, wildlife, and
public and private property, shorelines, and beaches;
(9) "contiguous zone" means the entire zone established or to
be established by the United States under article 24 of the
Convention on the Territorial Sea and the Contiguous Zone;
(10) "onshore facility" means any facility (including, but not
limited to, motor vehicles and rolling stock) of any kind located
in, on, or under, any land within the United States other than
submerged land;
(11) "offshore facility" means any facility of any kind located
in, on, or under, any of the navigable waters of the United
States, and any facility of any kind which is subject to the
jurisdiction of the United States and is located in, on, or under
any other waters, other than a vessel or a public vessel;
(12) "act of God" means an act occasioned by an unanticipated
grave natural disaster;
(13) "barrel" means 42 United States gallons at 60 degrees
Fahrenheit;
(14) "hazardous substance" means any substance designated
pursuant to subsection (b)(2) of this section;
(15) "inland oil barge" means a non-self-propelled vessel
carrying oil in bulk as cargo and certificated to operate only in
the inland waters of the United States, while operating in such
waters;
(16) "inland waters of the United States" means those waters of
the United States lying inside the baseline from which the
territorial sea is measured and those waters outside such
baseline which are a part of the Gulf Intracoastal Waterway;
(17) "otherwise subject to the jurisdiction of the United
States" means subject to the jurisdiction of the United States by
virtue of United States citizenship, United States vessel
documentation or numbering, or as provided for by international
agreement to which the United States is a party;
(18) "Area Committee" means an Area Committee established under
subsection (j) of this section;
(19) "Area Contingency Plan" means an Area Contingency Plan
prepared under subsection (j) of this section;
(20) "Coast Guard District Response Group" means a Coast Guard
District Response Group established under subsection (j) of this
section;
(21) "Federal On-Scene Coordinator" means a Federal On-Scene
Coordinator designated in the National Contingency Plan;
(22) "National Contingency Plan" means the National Contingency
Plan prepared and published under subsection (d) of this section;
(23) "National Response Unit" means the National Response Unit
established under subsection (j) of this section;
(24) "worst case discharge" means -
(A) in the case of a vessel, a discharge in adverse weather
conditions of its entire cargo; and
(B) in the case of an offshore facility or onshore facility,
the largest foreseeable discharge in adverse weather
conditions; and

(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.
(b) Congressional declaration of policy against discharges of oil
or hazardous substances; designation of hazardous substances;
study of higher standard of care incentives and report to
Congress; liability; penalties; civil actions: penalty
limitations, separate offenses, jurisdiction, mitigation of
damages and costs, recovery of removal costs, alternative
remedies, and withholding clearance of vessels
(1) The Congress hereby declares that it is the policy of the
United States that there should be no discharges of oil or
hazardous substances into or upon the navigable waters of the
United States, adjoining shorelines, or into or upon the waters of
the contiguous zone, or in connection with activities under the
Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.] or the
Deepwater Port Act of 1974 [33 U.S.C. 1501 et seq.], or which may
affect natural resources belonging to, appertaining to, or under
the exclusive management authority of the United States (including
resources under the Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.]).
(2)(A) The Administrator shall develop, promulgate, and revise as
may be appropriate, regulations designating as hazardous
substances, other than oil as defined in this section, such
elements and compounds which, when discharged in any quantity into
or upon the navigable waters of the United States or adjoining
shorelines or the waters of the contiguous zone or in connection
with activities under the Outer Continental Shelf Lands Act [43
U.S.C. 1331 et seq.] or the Deepwater Port Act of 1974 [33 U.S.C.
1501 et seq.], or which may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of the
United States (including resources under the Magnuson-Stevens
Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.]),
present an imminent and substantial danger to the public health or
welfare, including, but not limited to, fish, shellfish, wildlife,
shorelines, and beaches.
(B) The Administrator shall within 18 months after the date of
enactment of this paragraph, conduct a study and report to the
Congress on methods, mechanisms, and procedures to create
incentives to achieve a higher standard of care in all aspects of
the management and movement of hazardous substances on the part of
owners, operators, or persons in charge of onshore facilities,
offshore facilities, or vessels. The Administrator shall include in
such study (1) limits of liability, (2) liability for third party
damages, (3) penalties and fees, (4) spill prevention plans, (5)
current practices in the insurance and banking industries, and (6)
whether the penalty enacted in subclause (bb) of clause (iii) of
subparagraph (B) of subsection (b)(2) of section 311 of Public Law
92-500 should be enacted.
(3) The discharge of oil or hazardous substances (i) into or upon
the navigable waters of the United States, adjoining shorelines, or
into or upon the waters of the contiguous zone, or (ii) in
connection with activities under the Outer Continental Shelf Lands
Act [43 U.S.C. 1331 et seq.] or the Deepwater Port Act of 1974 [33
U.S.C. 1501 et seq.], or which may affect natural resources
belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the
Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C.
1801 et seq.]), in such quantities as may be harmful as determined
by the President under paragraph (4) of this subsection, is
prohibited, except (A) in the case of such discharges into the
waters of the contiguous zone or which may affect natural resources
belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the
Magnuson-Stevens Fishery Conservation and Management Act), where
permitted under the Protocol of 1978 Relating to the International
Convention for the Prevention of Pollution from Ships, 1973, and
(B) where permitted in quantities and at times and locations or
under such circumstances or conditions as the President may, by
regulation, determine not to be harmful. Any regulations issued
under this subsection shall be consistent with maritime safety and
with marine and navigation laws and regulations and applicable
water quality standards.
(4) The President shall by regulation determine for the purposes
of this section those quantities of oil and any hazardous
substances the discharge of which may be harmful to the public
health or welfare or the environment of the United States,
including but not limited to fish, shellfish, wildlife, and public
and private property, shorelines, and beaches.
(5) Any person in charge of a vessel or of an onshore facility or
an offshore facility shall, as soon as he has knowledge of any
discharge of oil or a hazardous substance from such vessel or
facility in violation of paragraph (3) of this subsection,
immediately notify the appropriate agency of the United States
Government of such discharge. The Federal agency shall immediately
notify the appropriate State agency of any State which is, or may
reasonably be expected to be, affected by the discharge of oil or a
hazardous substance. Any such person (A) in charge of a vessel from
which oil or a hazardous substance is discharged in violation of
paragraph (3)(i) of this subsection, or (B) in charge of a vessel
from which oil or a hazardous substance is discharged in violation
of paragraph (3)(ii) of this subsection and who is otherwise
subject to the jurisdiction of the United States at the time of the
discharge, or (C) in charge of an onshore facility or an offshore
facility, who fails to notify immediately such agency of such
discharge shall, upon conviction, be fined in accordance with title
18, or imprisoned for not more than 5 years, or both. Notification
received pursuant to this paragraph shall not be used against any
such natural person in any criminal case, except a prosecution for
perjury or for giving a false statement.
(6) Administrative penalties. -
(A) Violations. - Any owner, operator, or person in charge of
any vessel, onshore facility, or offshore facility -
(i) from which oil or a hazardous substance is discharged in
violation of paragraph (3), or
(ii) who fails or refuses to comply with any regulation
issued under subsection (j) of this section to which that
owner, operator, or person in charge is subject,

may be assessed a class I or class II civil penalty by the
Secretary of the department in which the Coast Guard is operating
or the Administrator.
(B) Classes of penalties. -
(i) Class i. - The amount of a class I civil penalty under
subparagraph (A) may not exceed $10,000 per violation, except
that the maximum amount of any class I civil penalty under this
subparagraph shall not exceed $25,000. Before assessing a civil
penalty under this clause, the Administrator or Secretary, as
the case may be, shall give to the person to be assessed such
penalty written notice of the Administrator's or Secretary's
proposal to assess the penalty and the opportunity to request,
within 30 days of the date the notice is received by such
person, a hearing on the proposed penalty. Such hearing shall
not be subject to section 554 or 556 of title 5, but shall
provide a reasonable opportunity to be heard and to present
evidence.
(ii) Class ii. - The amount of a class II civil penalty under
subparagraph (A) may not exceed $10,000 per day for each day
during which the violation continues; except that the maximum
amount of any class II civil penalty under this subparagraph
shall not exceed $125,000. Except as otherwise provided in this
subsection, a class II civil penalty shall be assessed and
collected in the same manner, and subject to the same
provisions, as in the case of civil penalties assessed and
collected after notice and opportunity for a hearing on the
record in accordance with section 554 of title 5. The
Administrator and Secretary may issue rules for discovery
procedures for hearings under this paragraph.

(C) Rights of interested persons. -
(i) Public notice. - Before issuing an order assessing a
class II civil penalty under this paragraph the Administrator
or Secretary, as the case may be, shall provide public notice
of and reasonable opportunity to comment on the proposed
issuance of such order.
(ii) Presentation of evidence. - Any person who comments on a
proposed assessment of a class II civil penalty under this
paragraph shall be given notice of any hearing held under this
paragraph and of the order assessing such penalty. In any
hearing held under this paragraph, such person shall have a
reasonable opportunity to be heard and to present evidence.
(iii) Rights of interested persons to a hearing. - If no
hearing is held under subparagraph (B) before issuance of an
order assessing a class II civil penalty under this paragraph,
any person who commented on the proposed assessment may
petition, within 30 days after the issuance of such order, the
Administrator or Secretary, as the case may be, to set aside
such order and to provide a hearing on the penalty. If the
evidence presented by the petitioner in support of the petition
is material and was not considered in the issuance of the
order, the Administrator or Secretary shall immediately set
aside such order and provide a hearing in accordance with
subparagraph (B)(ii). If the Administrator or Secretary denies
a hearing under this clause, the Administrator or Secretary
shall provide to the petitioner, and publish in the Federal
Register, notice of and the reasons for such denial.

(D) Finality of order. - An order assessing a class II civil
penalty under this paragraph shall become final 30 days after its
issuance unless a petition for judicial review is filed under
subparagraph (G) or a hearing is requested under subparagraph
(C)(iii). If such a hearing is denied, such order shall become
final 30 days after such denial.
(E) Effect of order. - Action taken by the Administrator or
Secretary, as the case may be, under this paragraph shall not
affect or limit the Administrator's or Secretary's authority to
enforce any provision of this chapter; except that any violation
-
(i) with respect to which the Administrator or Secretary has
commenced and is diligently prosecuting an action to assess a
class II civil penalty under this paragraph, or
(ii) for which the Administrator or Secretary has issued a
final order assessing a class II civil penalty not subject to
further judicial review and the violator has paid a penalty
assessed under this paragraph,

shall not be the subject of a civil penalty action under section
1319(d), 1319(g), or 1365 of this title or under paragraph (7).
(F) Effect of action on compliance. - No action by the
Administrator or Secretary under this paragraph shall affect any
person's obligation to comply with any section of this chapter.
(G) Judicial review. - Any person against whom a civil penalty
is assessed under this paragraph or who commented on the proposed
assessment of such penalty in accordance with subparagraph (C)
may obtain review of such assessment -
(i) in the case of assessment of a class I civil penalty, in
the United States District Court for the District of Columbia
or in the district in which the violation is alleged to have
occurred, or
(ii) in the case of assessment of a class II civil penalty,
in United States Court of Appeals for the District of Columbia
Circuit or for any other circuit in which such person resides
or transacts business,

by filing a notice of appeal in such court within the 30-day
period beginning on the date the civil penalty order is issued
and by simultaneously sending a copy of such notice by certified
mail to the Administrator or Secretary, as the case may be, and
the Attorney General. The Administrator or Secretary shall
promptly file in such court a certified copy of the record on
which the order was issued. Such court shall not set aside or
remand such order unless there is not substantial evidence in the
record, taken as a whole, to support the finding of a violation
or unless the Administrator's or Secretary's assessment of the
penalty constitutes an abuse of discretion and shall not impose
additional civil penalties for the same violation unless the
Administrator's or Secretary's assessment of the penalty
constitutes an abuse of discretion.
(H) Collection. - If any person fails to pay an assessment of a
civil penalty -
(i) after the assessment has become final, or
(ii) after a court in an action brought under subparagraph
(G) has entered a final judgment in favor of the Administrator
or Secretary, as the case may be,

the Administrator or Secretary shall request the Attorney General
to bring a civil action in an appropriate district court to
recover the amount assessed (plus interest at currently
prevailing rates from the date of the final order or the date of
the final judgment, as the case may be). In such an action, the
validity, amount, and appropriateness of such penalty shall not
be subject to review. Any person who fails to pay on a timely
basis the amount of an assessment of a civil penalty as described
in the first sentence of this subparagraph shall be required to
pay, in addition to such amount and interest, attorneys fees and
costs for collection proceedings and a quarterly nonpayment
penalty for each quarter during which such failure to pay
persists. Such nonpayment penalty shall be in an amount equal to
20 percent of the aggregate amount of such person's penalties and
nonpayment penalties which are unpaid as of the beginning of such
quarter.
(I) Subpoenas. - The Administrator or Secretary, as the case
may be, may issue subpoenas for the attendance and testimony of
witnesses and the production of relevant papers, books, or
documents in connection with hearings under this paragraph. In
case of contumacy or refusal to obey a subpoena issued pursuant
to this subparagraph and served upon any person, the district
court of the United States for any district in which such person
is found, resides, or transacts business, upon application by the
United States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear
and give testimony before the administrative law judge or to
appear and produce documents before the administrative law judge,
or both, and any failure to obey such order of the court may be
punished by such court as a contempt thereof.

(7) Civil penalty action. -
(A) Discharge, generally. - Any person who is the owner,
operator, or person in charge of any vessel, onshore facility, or
offshore facility from which oil or a hazardous substance is
discharged in violation of paragraph (3), shall be subject to a
civil penalty in an amount up to $25,000 per day of violation or
an amount up to $1,000 per barrel of oil or unit of reportable
quantity of hazardous substances discharged.
(B) Failure to remove or comply. - Any person described in
subparagraph (A) who, without sufficient cause -
(i) fails to properly carry out removal of the discharge
under an order of the President pursuant to subsection (c) of
this section; or
(ii) fails to comply with an order pursuant to subsection
(e)(1)(B) of this section;

shall be subject to a civil penalty in an amount up to $25,000
per day of violation or an amount up to 3 times the costs
incurred by the Oil Spill Liability Trust Fund as a result of
such failure.
(C) Failure to comply with regulation. - Any person who fails
or refuses to comply with any regulation issued under subsection
(j) of this section shall be subject to a civil penalty in an
amount up to $25,000 per day of violation.
(D) Gross negligence. - In any case in which a violation of
paragraph (3) was the result of gross negligence or willful
misconduct of a person described in subparagraph (A), the person
shall be subject to a civil penalty of not less than $100,000,
and not more than $3,000 per barrel of oil or unit of reportable
quantity of hazardous substance discharged.
(E) Jurisdiction. - An action to impose a civil penalty under
this paragraph may be brought in the district court of the United
States for the district in which the defendant is located,
resides, or is doing business, and such court shall have
jurisdiction to assess such penalty.
(F) Limitation. - A person is not liable for a civil penalty
under this paragraph for a discharge if the person has been
assessed a civil penalty under paragraph (6) for the discharge.

(8) Determination of amount. - In determining the amount of a
civil penalty under paragraphs (6) and (7), the Administrator,
Secretary, or the court, as the case may be, shall consider the
seriousness of the violation or violations, the economic benefit to
the violator, if any, resulting from the violation, the degree of
culpability involved, any other penalty for the same incident, any
history of prior violations, the nature, extent, and degree of
success of any efforts of the violator to minimize or mitigate the
effects of the discharge, the economic impact of the penalty on the
violator, and any other matters as justice may require.
(9) Mitigation of damage. - In addition to establishing a penalty
for the discharge of oil or a hazardous substance, the
Administrator or the Secretary of the department in which the Coast
Guard is operating may act to mitigate the damage to the public
health or welfare caused by such discharge. The cost of such
mitigation shall be deemed a cost incurred under subsection (c) of
this section for the removal of such substance by the United States
Government.
(10) Recovery of removal costs. - Any costs of removal incurred
in connection with a discharge excluded by subsection (a)(2)(C) of
this section shall be recoverable from the owner or operator of the
source of the discharge in an action brought under section 1319(b)
of this title.
(11) Limitation. - Civil penalties shall not be assessed under
both this section and section 1319 of this title for the same
discharge.
(12) Withholding clearance. - If any owner, operator, or person
in charge of a vessel is liable for a civil penalty under this
subsection, or if reasonable cause exists to believe that the
owner, operator, or person in charge may be subject to a civil
penalty under this subsection, the Secretary of the Treasury, upon
the request of the Secretary of the department in which the Coast
Guard is operating or the Administrator, shall with respect to such
vessel refuse or revoke -
(A) the clearance required by section 91 of title 46, Appendix;
(B) a permit to proceed under section 313 (!2) of title 46,
Appendix; 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 (continued)