Text: S.3410 — 111th Congress (2009-2010)All Information (Except Text)

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Placed on Calendar Senate (05/26/2010)

Calendar No. 410

111th CONGRESS
2d Session
S. 3410


To create a fair and efficient system to resolve claims of victims for economic injury caused by the Deepwater Horizon incident, and to direct the Secretary of the Interior to renegotiate the terms of the lease known as “Mississippi Canyon 252” with respect to claims relating to the Deepwater Horizon explosion and oil spill that exceed existing applicable economic liability limitations.


IN THE SENATE OF THE UNITED STATES

May 25, 2010

Mr. Vitter (for himself, Ms. Murkowski, Mr. LeMieux, and Mr. Isakson) introduced the following bill; which was read the first time

May 26, 2010

Read the second time and placed on the calendar


A BILL

To create a fair and efficient system to resolve claims of victims for economic injury caused by the Deepwater Horizon incident, and to direct the Secretary of the Interior to renegotiate the terms of the lease known as “Mississippi Canyon 252” with respect to claims relating to the Deepwater Horizon explosion and oil spill that exceed existing applicable economic liability limitations.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Acceptance of Liability and Expedited Claims at Mississippi Canyon 252 Act”.

(b) Table of contents.—The table of contents of this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 101. Findings and purpose.

Sec. 102. Definitions.

Sec. 111. Establishment of Office of Deepwater Horizon Claims Compensation.

Sec. 112. Claimant assistance.

Sec. 113. Compensation program startup.

Sec. 114. Authority of Administrator.

Sec. 115. Advisory Committee on Deepwater Horizon Compensation.

Sec. 121. Essential elements of eligible claim.

Sec. 122. General rule concerning no-fault compensation.

Sec. 123. Filing of claims.

Sec. 124. Eligibility determinations and claim awards.

Sec. 131. Amount.

Sec. 132. Payment.

Sec. 133. Setoffs for collateral source compensation and prior awards.

Sec. 134. Subrogation.

Sec. 141. Judicial review of rules and regulations.

Sec. 142. Judicial review of award decisions.

Sec. 143. Other judicial challenges.

Sec. 151. Effect on other laws.

Sec. 201. Liability for Deepwater Horizon oil spill.

SEC. 101. Findings and purpose.

(a) Findings.—Congress finds that—

(1) the oil spill resulting from the Deepwater Horizon incident has caused major economic damage to the residents of the States bordering the Gulf of Mexico;

(2) the limits on strict liability imposed by the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.) will be exceeded by the claims resulting from the Deepwater Horizon incident; and

(3) while the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.) places no restrictions on liability for damages from the accident under State law, litigation of such cases may take decades, and consume in litigation expenses funds that could otherwise be used to quickly and efficiently compensate the citizens of the Gulf States for damages resulting from the Deepwater Horizon incident.

(b) Purpose.—The purpose of this title is to create a fair and efficient system for the payment of legitimate present and future claims for damages resulting from the Deepwater Horizon incident.

SEC. 102. Definitions.

In this title:

(1) ADMINISTRATOR.—The term “Administrator” means the Administrator of the Office.

(2) ADVISORY COMMITTEE.—The term “Advisory Committee” means the Advisory Committee on Deepwater Horizon Compensation established under section 115(a).

(3) CLAIM.—The term “claim” means any claim, based on any theory, allegation, or cause of action, for damages presented in a civil action or bankruptcy proceeding, directly, indirectly, or derivatively arising out of, based on, or related to, in whole or in part, the effects of the Deepwater Horizon incident.

(4) CLAIMANT.—The term “claimant” means a person or State who files a claim under section 123.

(5) CIVIL ACTION.—

(A) IN GENERAL.—The term “civil action” means a civil action filed in Federal or State court, whether cognizable as a case at law, in equity, or in admiralty.

(B) EXCLUSION.—The term “civil action” does not include an action relating to any workers’ compensation law.

(6) COLLATERAL SOURCE COMPENSATION.—The term “collateral source compensation” means the compensation that a claimant received, or is entitled to receive, from a responsible party as a result of a final judgment, settlement, or other payment for damages that are the source of a claim under section 123, including payments made under the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.).

(7) COMPENSATION PROGRAM.—The term “compensation program” means the compensation program established under this title.

(8) DAMAGES.—The term “damages” means damages specified in section 131(b), including the cost of assessing those damages.

(9) DEEPWATER HORIZON INCIDENT.—The term “Deepwater Horizon incident” means the blowout and explosion of the Deepwater Horizon oil rig that occurred on April 20, 2010, and resulting hydrocarbon releases into the environment.

(10) DEPARTMENT.—The term “Department” means the Department of the Interior.

(11) FUND.—The term “Fund” means the Oil Spill Liability Trust Fund established by section 9509 of the Internal Revenue Code of 1986.

(12) LAW.—The term “law” includes all law, judicial or administrative decisions, rules, regulations, or any other principle or action having the effect of law.

(13) OFFICE.—The term “Office” means the Office of Deepwater Horizon Claims Compensation established under section 111.

(14) PARTIES.—The term “parties” means, with respect to an individual claim, the claimant and the responsible party.

(15) PERSON.—

(A) IN GENERAL.—The term “person” means an individual, trust, firm, joint stock company, partnership, association, insurance company, reinsurance company, or corporation.

(B) EXCLUSIONS.—The term “person” does not include—

(i) the United States;

(ii) a State; or

(iii) a political subdivision of a State.

(16) RESPONSIBLE PARTY.—The term “responsible party” means a responsible party (as defined in section 1001 of the Oil Pollution Act of 1990 (33 U.S.C. 2701)) for the Deepwater Horizon incident.

(17) SECRETARY.—The term “Secretary” means the Secretary of the Interior.

(18) STATE.—The term “State” means

(A) each of the several States of the United States;

(B) the District of Columbia;

(C) the Commonwealth of Puerto Rico;

(D) Guam;

(E) American Samoa;

(F) the Commonwealth of the Northern Mariana Islands;

(G) the Federated States of Micronesia;

(H) the Republic of the Marshall Islands;

(I) the Republic of Palau; and

(J) the United States Virgin Islands..

(19) SUCCESSOR IN INTEREST.—The term “successor in interest” means any person that acquires assets, and substantially continues the business operations, of a responsible party, considering factors that include—

(A) retention of the same facilities or location;

(B) retention of the same employees;

(C) maintaining the same job under the same working conditions;

(D) retention of the same supervisory personnel;

(E) continuity of assets;

(F) production of the same product or offer of the same service;

(G) retention of the same name;

(H) maintenance of the same customer base;

(I) identity of stocks, stockholders, and directors between the asset seller and the purchaser; or

(J) whether the successor holds itself out as continuation of previous enterprise, but expressly does not include whether the person actually knew of the liability of the responsible party under this title.

SEC. 111. Establishment of Office of Deepwater Horizon Claims Compensation.

(a) In general.—

(1) ESTABLISHMENT.—There is established within the Department the Office of Deepwater Horizon Claims Compensation, which shall be headed by the Administrator.

(2) PURPOSE.—The purpose of the Office shall be to provide timely, fair compensation, under the terms specified in this title, on a no-fault basis and in a nonadversarial manner, to persons and State or local governments that have incurred damages as a result of the Deepwater Horizon incident.

(3) TERMINATION OF THE OFFICE.—The Office shall terminate effective not later than 1 year following the date of certification by the Administrator that the Fund has neither paid a claim in the previous 1-year period nor has debt obligations remaining to pay.

(4) EXPENSES.—The Fund shall be available to the Secretary for expenditure, without further appropriation and without fiscal year limitation, as necessary for any and all expenses associated with the Office, including—

(A) personnel salaries and expenses, including retirement and similar benefits; and

(B) all administrative and legal expenses.

(b) Appointment of Administrator.—

(1) IN GENERAL.—The Administrator of the Office shall be appointed by the President, by and with the advice and consent of the Senate.

(2) TERM.—The term of the Administrator shall be 5 years.

(3) REPORTING.—The Administrator shall report directly to the Assistant Secretary for Policy, Management, and Budget of the Department.

(c) Duties of Administrator.—

(1) IN GENERAL.—The Administrator shall be responsible for—

(A) processing claims for compensation for damages to eligible claimants in accordance with the criteria and procedures established under subtitle B;

(B) appointing or contracting for the services of such personnel, making such expenditures, and taking any other actions as may be necessary to carry out the responsibilities of the Office, including entering into cooperative agreements with other Federal or State agencies and entering into contracts with nongovernmental entities;

(C) conducting such audits and additional oversight as necessary to assure the integrity of the compensation program;

(D) promulgating such rules, regulations, and procedures as may be necessary to carry out this title;

(E) making such expenditures as may be necessary in carrying out this title;

(F) excluding evidence and disqualifying or debarring any attorney or other individual or entity who provide evidence in support of the application of the claimant for compensation if the Administrator determines that materially false, fraudulent, or fictitious statements or practices have been submitted or engaged in by the individual or entity; and

(G) having all other powers incidental, necessary, or appropriate to carrying out the functions of the Office.

(2) CERTAIN ENFORCEMENT.—

(A) FALSE STATEMENTS.—For each infraction described in paragraph (1)(F), the Administrator may impose a civil penalty not to exceed $10,000 on any individual or entity found to have submitted or engaged in a materially false, fraudulent, or fictitious statement or practice under this title.

(B) OTHER POWERS.—The Administrator shall issue appropriate regulations to carry out paragraph (1)(G).

(d) Audit and personnel review procedures.—The Administrator shall establish audit and personnel review procedures for evaluating the accuracy of eligibility recommendations of agency and contract personnel.

SEC. 112. Claimant assistance.

(a) Establishment.—Not later than 180 days after the date of enactment of this Act, the Administrator shall establish a comprehensive claimant assistance program—

(1) to publicize and provide information to potential claimants about—

(A) the availability of benefits for eligible claimants under this title; and

(B) the procedures for filing claims and for obtaining assistance in filing claims;

(2) to provide assistance to potential claimants in preparing and submitting claims, including assistance in obtaining the documentation necessary to support a claim;

(3) to respond to inquiries from claimants and potential claimants;

(4) to provide training with respect to the applicable procedures for the preparation and filing of claims to persons who provide assistance or representation to claimants, including nonprofit organizations and State and local government entities; and

(5) to provide for the establishment of a website on which claimants may access all relevant forms and information.

(b) Resource centers.—

(1) IN GENERAL.—The claimant assistance program shall provide for the establishment of resource centers in areas in which there are determined to be large concentrations of potential claimants.

(2) LOCATION.—The centers shall be located, to the maximum extent practicable, in facilities of the Department or other Federal agencies.

(c) Attorney’s fees.—

(1) IN GENERAL.—Notwithstanding any other provision of law, the representative of an individual may not receive, for services rendered in connection with the claim of an individual under this title, more than 5 percent of a final award made (whether by the Administrator initially or as a result of administrative review) on the claim.

(2) PENALTY.—Any representative of a claimant who violates this subsection shall be fined not more than the greater of—

(A) $5,000; or

(B) twice the amount received by the representative for services rendered in connection with each violation.

SEC. 113. Compensation program startup.

(a) Interim regulations.—Not later than 90 days after the date of enactment of this Act, the Administrator shall issue interim regulations and procedures for the processing of claims under this title.

(b) Interim personnel.—

(1) IN GENERAL.—The Secretary and the Assistant Secretary for Policy, Management, and Budget of the Department may make available to the Administrator on a temporary basis such personnel and other resources as may be necessary to facilitate the expeditious startup of the compensation program.

(2) CONTRACTS.—The Administrator may contract with individuals or entities having relevant experience to assist in the expeditious startup of the compensation program.

(c) Extreme financial hardship claims.—In the final regulations promulgated under section 111(c), the Administrator shall designate categories of claims to be handled on an expedited basis as a result of extreme financial hardship.

(d) Interim Administrator.—Until an Administrator is appointed and confirmed under section 111(b), the responsibilities of the Administrator under this title shall be performed by the Assistant Secretary for Policy, Management, and Budget of the Department, who shall have all the authority conferred by this title on the Administrator and who shall be considered to be the Administrator for purposes of this title.

(e) Stay of claims; return to tort system.—

(1) STAY OF CLAIMS.—

(A) PENDING ACTIONS.—Notwithstanding any other provision of this title, any claim for damages pending in any Federal or State court for monetary damages related to the Deepwater Horizon incident as of the date of enactment of this Act shall be subject to a stay.

(B) FUTURE ACTIONS.—Notwithstanding any other provision of this title, any claim for damages filed in any Federal or State court for monetary damages related to the Deepwater Horizon incident after the date of enactment of this Act shall be subject to a stay 60 days after the date of the filing of the claim, unless the claimant has filed an election to pursue the claim for damages in the Federal or State court under paragraph (2).

(2) CLAIMS.—To be eligible for a claim, any person or State that has filed a timely claim seeking a judgment or order for monetary damages related to the Deepwater Horizon incident in any Federal or State court before, on, or after the date of enactment of this Act, shall file with the Administrator and serve on all defendants in the pending court action an election to pursue the claim for damages under this title or continue to pursue the claim in the Federal or State court—

(A) not later than 60 days after the date of enactment of this Act, if the claim was filed in a Federal or State court before the date of enactment of this Act; and

(B) not later than 60 days after the date of the filing of the claim, if the claim is filed in a Federal or State court on or after the date of enactment of this Act.

(3) STAY.—Until the claimant files an election under paragraph (2) to continue to pursue the claim in the Federal or State court, the stay under paragraph (1) shall remain in effect.

(4) EFFECT OF ELECTION.—

(A) IN GENERAL.—Any claimant that has elected to pursue a claim for damages in Federal or State court under paragraph (2) shall not be eligible for an award for those damages under section 131.

(B) STAY OF CLAIM.—Any claim seeking a judgment or order for monetary damages relating to the Deepwater Horizon incident in any Federal or State court filed by a claimant that has received a judgment for damages under this title for that claim shall be permanently stayed.

(5) EFFECT OF OPERATIONAL OR NONOPERATIONAL FUND.—

(A) REINSTATEMENT OF CLAIMS.—If, after 270 days after the date of enactment of this Act, the Administrator cannot certify to Congress that the Office is operational and paying claims at a reasonable rate, each person or State that has filed a claim stayed under this subsection may continue the claims of the person or State in the court in which the case was pending prior to the stay.

(B) OPERATIONAL OFFICE.—If the Administrator subsequently certifies to Congress that the Office has become operational and paying all valid claims at a reasonable rate, any claim in a civil action in Federal or State court that is not actually on trial before a jury that has been impaneled and presentation of evidence has commenced, but before deliberation, or before a judge and is at the presentation of evidence, may, at the option of the claimant, be considered a reinstated claim before the Administrator and the civil action before the Federal or State court shall be null and void.

(C) NONOPERATIONAL OFFICE.—Notwithstanding any other provision of this title, if the Administrator certifies to Congress that the Office cannot become operational and paying all valid claims at a reasonable rate, all claims that have a stay may be filed or reinstated.

SEC. 114. Authority of Administrator.

On any matter within the jurisdiction of the Administrator under this title, the Administrator may—

(1) issue subpoenas for and compel the attendance of witnesses within a radius of 200 miles;

(2) administer oaths;

(3) examine witnesses;

(4) require the production of books, papers, documents, and other potential evidence; and

(5) request assistance from other Federal agencies with the performance of the duties of the Administrator under this title.

SEC. 115. Advisory Committee on Deepwater Horizon Compensation.

(a) Establishment.—

(1) IN GENERAL.—Not later than 120 days after the date of enactment of this Act, the Administrator shall establish an Advisory Committee on Deepwater Horizon Compensation.

(2) COMPOSITION AND APPOINTMENT.—

(A) IN GENERAL.—The Advisory Committee shall be composed of 24 members, appointed in accordance with this paragraph.

(B) LEGISLATIVE APPOINTMENTS.—

(i) IN GENERAL.—The Majority Leader of the Senate, the Minority Leader of the Senate, the Speaker of the House of Representatives, and the Minority Leader of the House of Representatives shall each appoint 4 members to the Advisory Committee.

(ii) REPRESENTATION.—Of the 4 members appointed by each Member under clause (i)—

(I) 2 members shall represent the interests of claimants; and

(II) 2 members shall represent the interests of responsible parties.

(C) APPOINTMENTS BY ADMINISTRATOR.—The Administrator shall appoint 8 members to the Advisory Committee, who shall be individuals with qualifications and expertise relevant to the compensation program, including experience or expertise in marine or coastal ecology, oil spill remediation, fisheries management, administering compensation programs, or audits.

(b) Duties.—The Advisory Committee shall advise the Administrator on—

(1) claims filing and claims processing procedures;

(2) claimant assistance programs;

(3) audit procedures and programs to ensure the quality and integrity of the compensation program;

(4) analyses or research that should be conducted to evaluate past claims and to project future claims under the compensation program; and

(5) such other matters related to the implementation of this title as the Administrator considers appropriate.

(c) Operation of Committee.—

(1) TERM.—The term of a member of the Advisory Committee shall be 3 years.

(2) CHAIRPERSON AND VICE CHAIRPERSON.—The Administrator shall designate a Chairperson and Vice Chairperson of the Advisory Committee from among the members appointed under subsection (a)(2)(C).

(3) MEETINGS.—The Advisory Committee shall meet—

(A) at the call of the Chairperson or a majority of the members of the Advisory Committee; and

(B) at least—

(i) 4 times per year during the first 3 years of the compensation program; and

(ii) 2 times per year thereafter.

(4) INFORMATION.—

(A) IN GENERAL.—The Administrator shall provide to the Advisory Committee such information as is necessary and appropriate for the Advisory Committee to carry out this section.

(B) OTHER AGENCIES.—

(i) IN GENERAL.—On request of the Advisory Committee, the Administrator may secure directly from any Federal, State, or local department or agency such information as may be necessary to enable the Advisory Committee to carry out this section.

(ii) PROVISION OF INFORMATION.—On request of the Administrator, the head of the department or agency described in clause (i) shall furnish such information to the Advisory Committee.

(5) ADMINISTRATIVE SUPPORT.—The Administrator shall provide the Advisory Committee with such administrative support as is reasonably necessary to enable the Advisory Committee to carry out this section.

(d) Expenses.—A member of the Advisory Committee, other than a full-time Federal employee, while attending a meeting of the Advisory Committee or while otherwise serving at the request of the Administrator, and while serving away from the home or regular place of business of the member, shall be allowed travel and meal expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for individuals in the Federal Government serving without pay.

SEC. 121. Essential elements of eligible claim.

To be eligible for an award under this title for damages, a claimant shall—

(1) file a claim in a timely manner in accordance with section 123; and

(2) prove, by a preponderance of the evidence, that the claimant has suffered damages as a result of the Deepwater Horizon incident.

SEC. 122. General rule concerning no-fault compensation.

To be eligible for an award under this title for damages, a claimant shall not be required to demonstrate that the damages for which the claim is being made resulted from the negligence or other fault of any other person.

SEC. 123. Filing of claims.

(a) Eligible claimants.—

(1) IN GENERAL.—Any person or State that has suffered damage as a result of the Deepwater Horizon incident may file a claim with the Office for an award with respect to the damage.

(2) LIMITATION.—A claim may not be filed by any person or State under this title for contribution or indemnity.

(b) Statute of limitations.—Except as otherwise provided in this subsection, if a person or State fails to file a claim with the Office under this section during the 5-year period beginning on the date on which the person or State first discovered facts that would have led a reasonable person to conclude that damage had occurred, any claim relating to the damage, and any other claim related to that damage, shall be extinguished, and any recovery on the damage shall be prohibited.

(c) Future claims not precluded.—Filing of a claim under subsection (a) shall not preclude the filing of additional claims for damages arising from the Deepwater Horizon incident that are manifest at a later date.

(d) Required information.—A claim filed under subsection (a) shall be in such form, and contain such information in such detail, as the Administrator shall by regulation prescribe.

(e) Date of filing.—A claim shall be considered to be filed on the date that the claimant mails the claim to the Office, as determined by postmark, or on the date that the claim is received by the Office, whichever is the earliest determinable date.

(f) Incomplete claims.—

(1) IN GENERAL.—If a claim filed under subsection (a) is incomplete, the Administrator shall notify the claimant of the information necessary to complete the claim and inform the claimant of such services as may be available through the claimant assistance program established under section 112 to assist the claimant in completing the claim.

(2) TIME PERIODS.—

(A) IN GENERAL.—Except as provided in subparagraph (B), any time period for the processing of the claim shall be suspended until such time as the claimant submits the information necessary to complete the claim.

(B) DEADLINE.—If the information described in subparagraph (A) is not received during the 1-year period beginning on the date of the notification, the claim shall be dismissed.

SEC. 124. Eligibility determinations and claim awards.

(a) In general.—

(1) REVIEW OF CLAIMS.—The Administrator shall, in accordance with this section, determine whether each claim filed satisfies the requirements for eligibility for an award under this title and, if so, the value of the award.

(2) FACTORS.—In making a determination under paragraph (1), the Administrator shall consider—

(A) the claim presented by the claimant;

(B) the factual evidence submitted by the claimant in support of the claim; and

(C) the results of such investigation as the Administrator may consider necessary to determine whether the claim satisfies the criteria for eligibility established by this title.

(3) ADDITIONAL EVIDENCE.—

(A) IN GENERAL.—The Administrator may request the submission of evidence in addition to the minimum requirements of section 123 if necessary to make a determination of eligibility for an award.

(B) COST.—If the Administrator requests additional evidence under subparagraph (A), the cost of obtaining the additional evidence shall be borne by the Office.

(b) Proposed decisions.—

(1) IN GENERAL.—Not later than 90 days after the date of the filing of a claim, the Administrator shall provide to the parties a proposed decision—

(A) accepting or rejecting the claim in whole or in part; and

(B) specifying the amount of any proposed award.

(2) FORM.—The proposed decision shall—

(A) be in writing;

(B) contain findings of fact and conclusions of law; and

(C) contain an explanation of the procedure for obtaining review of the proposed decision.

(c) Review of proposed decisions.—

(1) RIGHT TO HEARING.—

(A) IN GENERAL.—Any party not satisfied with a proposed decision of the Administrator under subsection (b) shall be entitled, on written request made not later than 90 days after the date of the issuance of the decision, to a hearing on the claim of the claimant before a representative of the Administrator.

(B) TESTIMONY.—At the hearing, the party shall be entitled to present oral evidence and written testimony in further support of the claim.

(C) CONDUCT OF HEARING.—

(i) IN GENERAL.—The hearing shall, to the maximum extent practicable, be conducted at a time and place convenient for the claimant.

(ii) ADMINISTRATION.—Except as otherwise provided in this title, in conducting the hearing, the representative of the Administrator shall conduct the hearing in a manner that best determines the rights of the parties and shall not be bound by—

(I) common law or statutory rules of evidence;

(II) technical or formal rules of procedure; or

(III) section 554 of title 5, United States Code.

(iii) EVIDENCE.—For purposes of clause (ii), the representative of the Administrator shall receive such relevant evidence as the claimant adduces and such other evidence as the representative determines necessary or useful in evaluating the claim.

(D) REQUEST FOR SUBPOENAS.—

(i) IN GENERAL.—Subject to clause (iv), a party may request a representative of the Administrator to issue a subpoena but the decision to grant or deny the request is within the discretion of the representative.

(ii) SUBPOENAS.—Subject to clause (iii), the representative may issue subpoenas for—

(I) the attendance and testimony of witnesses; and

(II) the production of books, records, correspondence, papers, or other relevant documents.

(iii) PREREQUISITES.—Subpoenas may be issued for documents under this subparagraph only if —

(I) in the case of documents, the documents are relevant and cannot be obtained by other means; and

(II) in the case of witnesses, oral testimony is the best way to ascertain the facts.

(iv) REQUEST.—

(I) HEARING PROCESS.—A party may request a subpoena under this subparagraph only as part of the hearing process.

(II) FORM.—To request a subpoena, the requester shall—

(aa) submit the request in writing and send the to the representative as early as practicable, but not later than 30 days, after the date of the original hearing request; and

(bb) explain why the testimony or evidence is directly relevant to the issues at hand, and a subpoena is the best method or opportunity to obtain the evidence because there are no other means by which the documents or testimony could have been obtained.

(v) FEES AND MILEAGE.—

(I) IN GENERAL.—Any person required by a subpoena to attend as a witness shall be allowed and paid the same fees and mileage as are paid witnesses in the district courts of the United States.

(II) FUND.—The fees and mileage shall be paid from the Fund.

(2) REVIEW OF WRITTEN RECORD.—

(A) IN GENERAL.—Instead of a hearing under paragraph (1), any party not satisfied with a proposed decision of the Administrator shall have the option, on written request made not later than 90 days after the date of the issuance of the decision, of obtaining a review of the written record by a representative of the Administrator.

(B) OPPORTUNITY TO BE HEARD.—If a review is requested under subparagraph (A), the parties shall be afforded an opportunity to submit any written evidence or argument that the claimant believes relevant.

(d) Final decisions.—

(1) IN GENERAL.—If the period of time for requesting review of the proposed decision expires and no request has been filed, or if the parties waive any objections to the proposed decision, the Administrator shall issue a final decision.

(2) VARIANCE FROM PROPOSED DECISION.—If the decision materially differs from the proposed decision, the parties shall be entitled to review of the decision under subsection (c).

(3) TIMING.—If the parties request review of all or part of the proposed decision the Administrator shall issue a final decision on the claim not later than—

(A) 180 days after the date the request for review is received, if a party requests a hearing; or

(B) 90 days after the date the request for review is received, if the claimant requests review of the written record.

(4) CONTENT.—The decision shall be in writing and contain findings of fact and conclusions of law.

(e) Representation.—A party may authorize an attorney or other individual to represent the party in any proceeding under this title.

SEC. 131. Amount.

(a) In general.—A claimant that meets the requirements of section 121 shall be entitled to an award in an amount equal to the damages specified in subsection (b) sustained as a result of Deepwater Horizon incident.

(b) Covered damages.—For purposes of subsection (a), covered damages shall be 1 or more of the following types of damages (if applicable):

(1) REAL OR PERSONAL PROPERTY.—Damages for injury to, or economic losses resulting from destruction of, real or personal property, which shall be recoverable by a claimant who owns or leases that property.

(2) SUBSISTENCE USE.—Damages for loss of subsistence use of natural resources, which shall be recoverable by any claimant who so uses natural resources that have been injured, destroyed, or lost, without regard to the ownership or management of the resources.

(3) REVENUES.—Damages equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by a State or a political subdivision of a State.

(4) PROFITS AND EARNING CAPACITY.—Damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.

(5) PUBLIC SERVICES.—Damages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil, which shall be recoverable by a State or a political subdivision of a State.

SEC. 132. Payment.

(a) Payments.—Not later than 30 days after a final determination of an award under this title, a claimant that is entitled to an award under this title shall receive the amount of the award through payments from the responsible parties.

(b) Limitation on transferability.—A claim filed under this title shall not be assignable or otherwise transferable under this title.

SEC. 133. Setoffs for collateral source compensation and prior awards.

The amount of an award otherwise available to a claimant under this title shall be reduced by the amount of collateral source compensation.

SEC. 134. Subrogation.

Any person that pays compensation pursuant to this title to any claimant for damages shall be subrogated to all rights, claims, and causes of action the claimant has under any other law.

SEC. 141. Judicial review of rules and regulations.

(a) Exclusive jurisdiction.—The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over any action to review rules or regulations promulgated by the Administrator under this title.

(b) Period for filing petition.—A petition for review under this section shall be filed not later than 60 days after the date notice of the promulgation of the rules or regulations appears in the Federal Register.

(c) Expedited procedures.—The United States Court of Appeals for the District of Columbia shall provide for expedited procedures for reviews under this section.

SEC. 142. Judicial review of award decisions.

(a) In general.—Any claimant or responsible party adversely affected or aggrieved by a final decision of the Administrator awarding or denying compensation under this title may petition for judicial review of the decision.

(b) Period for filing petition.—Any petition for review under this section shall be filed not later than 90 days after the date of issuance of a final decision of the Administrator.

(c) Exclusive jurisdiction.—A petition for review may only be filed in the United States Court of Appeals for the circuit in which the claimant resides at the time of the issuance of the final order.

(d) Standard of review.—The court shall uphold the decision of the Administrator unless the court determines, on review of the record as a whole, that the decision is not supported by substantial evidence, is contrary to law, or is not in accordance with procedure required by law.

(e) Expedited procedures.—The United States Court of Appeals shall provide for expedited procedures for reviews under this section.

SEC. 143. Other judicial challenges.

(a) Exclusive jurisdiction.—The United States District Court for the District of Columbia shall have exclusive jurisdiction over any action for declaratory or injunctive relief challenging any provision of this title.

(b) Period for filing petitions.—An action under this section shall be filed not later than the later of—

(1) the date that is 60 days after the date of enactment of this Act; or

(2) the date that is 60 days after the final action by the Administrator or the Office giving rise to the action.

(c) Direct appeal.—

(1) IN GENERAL.—A final decision in the action shall be reviewable on appeal directly to the Supreme Court.

(2) ADMINISTRATION.—The appeal shall be taken by the filing of a notice of appeal not later than 30 days, and the filing of a jurisdictional statement not later than 60 days, after the date of the entry of the final decision.

(d) Expedited procedures.—It is the sense of Congress that the Supreme Court and the United States District Court for the District of Columbia are urged to advance on the docket and otherwise expedite, to the maximum extent practicable, the disposition of an action covered by this section.

SEC. 151. Effect on other laws.

This title shall supersede any Federal or State law to the extent that the law relates to any claim for damages compensated under this title.

SEC. 201. Liability for Deepwater Horizon oil spill.

(a) In general.—Congress finds that—

(1) executives of British Petroleum Exploration & Production, Incorporated (referred to in this section as “BP”) testified before Congress in May 2010 that BP would pay all legitimate claims relating to the Deepwater Horizon explosion and oil spill that exceed existing applicable economic liability limitations;

(2) a letter from the Group Chief Executive of BP to the Secretaries of Homeland Security and the Interior dated May 16, 2010, states in part that BP is “prepared to pay above $75 million” on “all legitimate claims” relating to that explosion and oil spill; and

(3) all documented legitimate claims pursuant to the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.) for economic damages relating to the Deepwater Horizon explosion and oil spill should be paid by BP without limit on liability.

(b) Directive to Secretary of the Interior.—

(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary of the Interior (referred to in this section as the “Secretary”) shall renegotiate the terms of the lease known as “Mississippi Canyon 252” to reflect statements made by BP in the letter described in subsection (a)(2).

(2) PAYMENT OF CLAIMS.—As a condition of the renegotiated lease described in paragraph (1), BP shall pay all damages awarded pursuant to title I.


Calendar No. 410

111th CONGRESS
     2d Session
S. 3410

A BILL
To create a fair and efficient system to resolve claims of victims for economic injury caused by the Deepwater Horizon incident, and to direct the Secretary of the Interior to renegotiate the terms of the lease known as “Mississippi Canyon 252” with respect to claims relating to the Deepwater Horizon explosion and oil spill that exceed existing applicable economic liability limitations.

May 26, 2010
Read the second time and placed on the calendar