Sec. 713. Implementing amendments
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The Antarctic Conservation Act of 1978 ( 16 U.S.C. 2401 et seq.) is amended— in section 3, by striking and at the end of paragraph (22), striking the period at the end of paragraph
(23)and inserting a semicolon, and by adding at the end the following: the term Annex VI means Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty, Liability Arising From Environmental Emergencies; the term environmental emergency means any event that occurs after the entry into force of Annex VI, and that results in, or imminently threatens to result in, any significant and harmful impact on the Antarctic environment; the term nongovernmental operator means any operator other than a governmental operator or a contractor or subcontractor acting on behalf of any governmental operator; the term operator means any person who organizes activities (including tourist activities) in the United States to be carried out in Antarctica, and any person who organizes activities (including tourist activities) in a country other than the United States to be carried out in Antarctica if such person has its principal place of business or habitual place of residence in the United States, or is incorporated in the United States, except that the term operator does not include— an individual who is an employee, contractor, subcontractor, or agent of, or who is in the service of, a person who organizes activities to be carried out in Antarctica; a contractor or subcontractor acting on behalf of any governmental operator; or any person who organizes only fishing activities to be carried out in Antarctica; the term reasonable , as applied to preventative measures and response action , means measures or actions which are appropriate, practicable, proportionate and based on the availability of objective criteria and information, including— risks to the Antarctic environment, and the rate of its natural recovery; risks to human life and safety; and technological and economic feasibility; and the term response action means reasonable measures taken after an environmental emergency has occurred to avoid, minimize or contain the impact of that environmental emergency, which to that end may include clean-up in appropriate circumstances, and includes determining the extent of that emergency and its impact, except that for purposes of this Act, the definition of response contained in section 101(25) of the Comprehensive Environmental Response, Compensation, and Liability Act ( 42 U.S.C. 9601(25) ) shall not apply. ; by inserting after section 4A the following: Operators shall undertake reasonable preventative measures that are designed to reduce the risk of environmental emergencies and their potential adverse impact. Such preventative measures may include— specialized structures or equipment incorporated into the design and construction of facilities and means of transportation; specialized procedures incorporated into the operation or maintenance of facilities and means of transportation; and specialized training of personnel. Operators shall— establish contingency plans for responses to incidents with potential adverse impacts on the Antarctic environment or dependent and associated ecosystems; and cooperate in the formulation and implementation of such contingency plans. Such contingency plans shall include, when appropriate, the following components: procedures for conducting an assessment of the nature of the incident; notification procedures; identification and mobilization of resources; response plans; training; recordkeeping; and demobilization. An operator shall take prompt and effective response action to environmental emergencies arising from the activities of that operator. ; by inserting after section 6 the following: Whenever, on the basis of information available to it, a Government of a State Party to Annex VI, other than the United States— finds that a nongovernmental operator has failed to take prompt and effective response action to an environmental emergency arising from that operator’s activities, as required by section 4D, and said Government takes a response action to that environmental emergency, such Government may bring a civil action against that operator to recover the costs of such response action in an appropriate district court in accordance with section 12. Any such operator found to have violated the requirements of section 4D shall be liable to pay to that Government the costs of the response action taken by such Government. Failure of a Government to comply with the provisions of Article 5, paragraphs 3, 4, or 5 of Annex VI shall not be a defense to liability under this section. Liability pursuant to subsections (a), (e), (k), and
(l)shall be strict. When an environmental emergency arises from the activities of two or more nongovernmental operators, they shall be jointly and severally liable under subsection (a), (k), or (l), except that an operator which establishes that only part of the environmental emergency resulted from its activities shall be liable in respect of that part only. Any nongovernmental operator may seek contribution from any other nongovernmental operator that is liable or potentially liable under section 2406 of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under subsection (a), (k), or
(l)of section 7. An action under section 7(a) or
(k)of this title must be commenced within three years of the commencement of the response action or within three years of the date on which the Government bringing the action knew or ought reasonably to have known the identity of the nongovernmental operator, whichever is later. In no event shall an action against a nongovernmental operator be commenced later than 15 years after the commencement of the response action. An action under section 7(e) of this title for contribution toward costs incurred pursuant to section 7(a) or
(b)must be commenced within three years of the date of judgment in any action under section 7(a) or
(k)for recovery of such response costs or in the absence of such an action, within three years of the date that the person seeking contribution knew or ought reasonably to have known the identity of the nongovernmental operator. An action under section 7(e) for contribution toward response costs assessed pursuant to section 7(l) must be commenced within three years of the date of the assessment or within three years of the date of any judgment under subsection 7(l)(vii), whichever is later. The maximum amount for which each nongovernmental operator may be liable for the costs of response actions under sections 7(a), 7(k), or 7(l), in respect of each environmental emergency, shall be as follows: For an environmental emergency arising from an event involving a ship: one million SDR for a ship with a tonnage not exceeding 2,000 tons; and for a ship with a tonnage in excess of 2,000 tons, the following amount in addition to that referred to in subparagraph (A): for each ton from 2,001 to 30,000 tons, 400 SDR; for each ton from 30,001 to 70,000 tons, 300 SDR; and for each ton in excess of 70,000 tons, 200 SDR. For an environmental emergency arising from an event which does not involve a ship, three million SDR. For the purposes of this subsection: ship means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms; SDR means the Special Drawing Rights as defined by the International Monetary Fund; and a ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969. Notwithstanding the provisions of subsection (g), liability shall not be limited if it is proved that the environmental emergency resulted from an act or omission of the operator, committed with the intent to cause such emergency, or recklessly and with knowledge that such emergency would probably result. A nongovernmental operator shall not be liable pursuant to subsection (a), subsection (e), subsection (k), or subsection
(l)if it proves that the environmental emergency was caused by— an act or omission necessary to protect human life or safety; an event constituting in the circumstances of Antarctica a natural disaster of an exceptional character, which could not have been reasonably foreseen, either generally or in the particular case, provided all reasonable preventative measures were taken that are designed to reduce the risk of environmental emergencies and their potential adverse impact; an act of terrorism by some other person or entity; or an act of belligerency by some other person or entity against the activities of the operator. Nongovernmental operators shall maintain adequate insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover liability under section 7 of this title up to the limits set forth in subsection (g). Whenever, on the basis of information available to it, a department, agency or other instrumentality of the United States
(i)finds that a nongovernmental operator has failed to take prompt and effective response action to an environmental emergency arising from its activities, as required by section 4D, and
(ii)takes a response action to that environmental emergency, such department, agency or other instrumentality may request the Attorney General to bring a civil action to recover the costs of such response action in an appropriate district court in accordance with section 12 of this title. Any such operator found to have violated the requirements of section 4D shall be liable to the United States for the costs of the response action taken by said department, agency or instrumentality. The department, agency, or other instrumentality of the United States that takes a response action under this subsection, or section 9(a), is authorized to retain, in its budget, the monies collected pursuant to this subsection. Such monies shall remain available for expenditure, without further appropriation, until expended by that department, agency or other instrumentality. Upon notice that a nongovernmental operator has failed to take prompt and effective response action to an environmental emergency arising from its activities, as required by section 4D, and no response action was taken by any Party to the Protocol, the following procedures shall be followed: The Director, after notice and opportunity for a hearing in accordance with subsection (l)(ii), shall assess the cost of the response action that should have been taken and may assess the reasonable costs incurred by the United States under this subsection to determine that cost. The Director is authorized to promulgate regulations to implement this subsection. Hearings for the assessment of the costs under subsection (l)(i) shall be conducted in accordance with section 554 of title 5, United States Code. For the purposes of conducting any such hearing, the Director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpoena served upon any person pursuant to this subsection, 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 Director or to appear and produce documents before the Director and any failure to obey such order of the court may be punished by such court as a contempt thereof. Response action costs assessed pursuant to this section shall reflect, as much as possible, the costs of the response action that should have been taken and the maximum recovery amount of those costs shall be as set forth in subsection (g). Further, the assessment of response action costs pursuant to this section shall not be deemed to preclude the assessment of additional civil or criminal penalties for violations of any other provision of this Chapter or any other law. At the request of the Director, and with the concurrence of the Secretary of the Department in which the Coast Guard is operating, the Commandant of the Coast Guard shall— render, on a non-reimbursable basis, such assistance that the Director may require, necessary to assess the cost of response action that should have been taken in the case of an environmental emergency caused by the operator’s ship-based activities, including any determination concerning the underlying response activity; and conduct, on a non-reimbursable basis, an investigation or an evidentiary hearing, necessary to assess the cost of the response action that should have been taken in the case of an environmental emergency caused by the operator’s ship-based activities, including any determination concerning the underlying response activity and to submit to the Director proposed findings of fact and recommendations for adjudication by the Director. With regard to any investigation or evidentiary hearing conducted pursuant to clause (iv), the Director is authorized to delegate, to the Commandant, the authority, set forth in clause (ii), to issue subpoenas and administer oaths, and to pay fees and mileage. In case of contumacy or refusal to obey a subpoena served upon any person pursuant to this clause, 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 agency head or to appear and produce documents before the agency head, and any failure to obey such order of the court may be punished by such court as a contempt thereof. The Director shall not commence an administrative proceeding in accordance with clauses
(i)and
(ii)of this section later than 15 years after the United States Government becomes aware of the environmental emergency. Upon the failure of any operator against whom costs have been assessed under this section to pay such costs, the Director may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found, resides, or transacts business to collect the costs and such court shall have jurisdiction to hear and decide any such action. The court shall hear such action on the record made before the Director pursuant to this section and shall sustain the Director’s decision if it is supported by substantial evidence on the record considered as a whole. Any monetary recovery under subsections (a),
(k)and
(l)shall, in addition, include all reasonable attorney’s fees and costs. An amount equal to the amount recovered pursuant to section
(1)for the cost of the response action that should have been taken shall be forwarded to the fund established pursuant to Article 12 of Annex VI. To the extent the department, agency, or other instrumentality of the United States retains monies collected pursuant to this section, such entity is authorized to retain, in its budget, the monies collected pursuant to this section. Such monies shall remain available for expenditure, without further appropriation, until expended by that department, agency or other instrumentality of the United States. ; in section 6— in subsection (a)— by striking Annex II and Annex V and inserting Annex II, Annex V and Annex VI ; and by striking including sections 4(b)(2), (3),
(4)and
(5)and inserting including section 3, section 4(b)(2), (3),
(4)and (5), section 4D and section 7 ; and in subsection (b), by striking to implement Annex IV to the Protocol and the provisions of this Act which implement that Annex and inserting to implement Annex IV and ship-based matters under Annex VI to the Protocol and the provisions of this Act which implement these Annexes ; in section 9— in subsection
(a)by adding other than a Federal department, agency or instrumentality after person ; and by striking $5,000 and inserting $10,000 ; in section 11— by striking the section heading and inserting ; Jurisdiction of Federal courts; venue, review of regulations; service of process by inserting
(a)before U.S. District Courts .— The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this chapter or of any regulation prescribed, or permit issued, under this chapter. ; and by adding the following subsections at the end of the section: An action by any Government of a State Party to Annex VI, including the United States, against any person subject to legal action under this chapter may be brought only in a district court in a jurisdiction where such person is located or resides or is doing business. A claim for contribution by a nongovernmental operator under section 2406(e) of this title may be brought in any district in which the defendant resides, may be found, or has his principal office. In any action brought under section 2406 of this title, process may be served in any district where the defendant is found, resides, transacts business, or has appointed an agent for the service of process. .
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