43 U.S.C. § 1845 | Claims procedure

(a)

Filing requirement; time to file

Any commercial fisherman suffering damages compensable under this subchapter may file a claim for compensation with the Secretary under subsection (d)(1).

(b)

Transmittal of copy of claim to Secretary of the Interior; reference to Secretary

Upon receipt of any claim under this section, the Secretary shall transmit a copy of the claim to the Secretary of the Interior and shall take such further action regarding the claim that is required under subsection (d).

(c)

Notification to persons engaged in activities associated with Outer Continental Shelf energy activities; response of persons notified; submittal of evidence

The Secretary of the Interior shall make reasonable efforts to notify all persons known to have engaged in activities associated with Outer Continental Shelf energy activity in the vicinity. Each such person shall promptly notify the Secretary and the Secretary of the Interior as to whether he admits or denies responsibility for the damages claimed. Any such person, including lessees or permittees or their contractors or subcontractors, may submit evidence at any proceeding conducted with respect to such claim.

(d)

Acceptance of claim by Secretary; time to render decision; review of initial determination

(1)

section 1843(a) of this title The Secretary shall, under regulations prescribed pursuant to , specify the time, form and manner in which claims must be filed.

(2)

The Secretary may not accept any claim that does not meet the filing requirements specified under paragraph (1), and shall give a claimant whose claim is not accepted written notice of the reasons for nonacceptance. Such written notice must be given to the claimant within 30 days after the date on which the claim was filed and if the claimant does not refile an acceptable claim within 30 days after the date of such written notice, the claimant is not eligible for compensation under this subchapter for the damages concerned; except that the Secretary—

(A)

shall in any case involving a good faith effort by the claimant to meet such filing requirements, or

(B)

may in any case involving extenuating circumstances, accept a claim that does not meet the 30-day refiling requirement.

(3)

(A)

The Secretary shall make an initial determination with respect to the claim within 60 days after the day on which the claim is accepted for filing. Within 30 days after the day on which the Secretary issues an initial determination on a claim, the claimant, or any other interested person who submitted evidence relating to the initial determination, may petition the Secretary for a review of that determination.

(B)

If a petition for the review of an initial determination is not filed with the Secretary within the 30-day period provided under subparagraph (A), the initial determination shall thereafter be treated as a final determination by the Secretary on the claim involved.

(C)

If a petition for review of an initial determination is timely filed under subparagraph (A), the Secretary shall allow the petitioner 30 days after the day on which the petition is received to submit written or oral evidence relating to the initial determination. The Secretary shall then undertake such review and, on the basis of such review, issue a final determination no later than the 60th day after the day on which the Secretary received the petition for review of an initial determination.

(e)

Claim preparation fees; attorney’s fees

If the decision of the Secretary under subsection (d) is in favor of the commercial fisherman filing the claim, the Secretary, as a part of the amount awarded, shall include reasonable claim preparation fees and reasonable attorney’s fees, if any, incurred by the claimant in pursuing the claim.

(f)

Powers of Secretary

(1)

For purposes of any proceeding conducted pursuant to this section, the Secretary shall have the power to administer oaths and subpena the attendance or testimony of witnesses and the production of books, records, and other evidence relative or pertinent to the issues being presented for determination.

(2)

1 See References in Text note below.

In any proceeding conducted pursuant to this section with respect to a claim for damages resulting from activities on any area of the Outer Continental Shelf, the Secretary shall consider evidence of obstructions in such area which have been identified pursuant to the survey conducted under section 1847  of this title.

(g)

Place of proceeding

Any proceeding conducted with respect to an initial determination on a claim under subsection (d)(3)(A) shall be conducted within such United States judicial district as may be mutually agreeable to the claimant and the Secretary or, if no agreement can be reached, within the United States judicial district in which the home port of the claimant is located.

(h)

Certification and disbursement of award; subrogation of rights; payment of costs of proceedings

(1)

The amount awarded in an initial determination by the Secretary under subsection (d) shall be immediately disbursed, subject to the limitations of this section, by the Secretary if the claimant—

(A)

states in writing that he will not petition for review of the initial determination; and

(B)

enters into an agreement with the Secretary to repay to the Secretary all or any part of the amount of the award if, after review under subsection (d)(3)(C) or, if applicable, after judicial review, the amount of the award, or any part thereof, is not sustained.

(2)

Upon payment of a claim by the Secretary pursuant to this subsection, the Secretary shall acquire by subrogation all rights of the claimant against any person found to be responsible for the damages with respect to which such claim was made. Any moneys recovered by the Secretary through subrogation shall be deposited into the Fund.

(3)

2 So in original. Probably should be “subsequently”.

Any person who denies responsibility for damages with respect to which a claim is made and who is subquently  found to be responsible for such damages, and any commercial fisherman who files a claim for damages and who is subsequently found to be responsible for such damages, shall pay the costs of the proceedings under this section with respect to such claim.

(i)

Judicial review

Any claimant or other person who suffers a legal wrong or who is adversely affected or aggrieved by a final determination of the Secretary under subsection (d), may, no later than 30 days after such determination is made, seek judicial review of the determination in the United States district court for such United States judicial district as may be mutually agreeable to the parties concerned or, if no agreement can be reached, in the United States district court for the United States judicial district in which is located the home port of the claimant.

Pub. L. 95–372, title IV, § 405Sept. 18, 197892 Stat. 688 Pub. L. 97–212, § 5June 30, 198296 Stat. 145 Pub. L. 98–498, title IV, § 420(3)Oct. 19, 198498 Stat. 2309(, , ; , , ; , (4), , , 2310.)

Editorial Notes

References in Text

Section 1847 of this title Pub. L. 97–212, § 6(a)June 30, 198296 Stat. 147, referred to in subsec. (f)(2), was repealed by , , .

Amendments

Pub. L. 98–498, § 420(3)1984—Subsec. (a). , substituted “under subsection (d)(1)” for “, except that no such claim may be filed more than 60 days after the date of discovery of the damages with respect to which such claim is made”.

Pub. L. 98–498, § 420(4)Subsec. (d)(1). , inserted “time,” before “form”.

Pub. L. 97–212, § 5(1)section 3105 of title 51982—Subsec. (b). , struck out pars. (1) and (2) designations, and substituted “shall take such further action regarding the claim that is required under subsection (d)” for “refer such matter to a hearing examiner appointed under ”.

Pub. L. 97–212, § 5(2)Subsec. (c). , substituted “proceeding” for “hearing”.

Pub. L. 97–212, § 5(3)Subsec. (d). , substituted provisions relating to the filing of claims with the Secretary of the Interior in order to be eligible for compensation under this subchapter, the time for such filing, the time in which the Secretary must make his initial determination with respect to the claim, and the submission of evidence by the petitioner when reviewing an initial determination by the Secretary, for provisions relating to the time in which a hearing examiner has to render a decision.

Pub. L. 97–212, § 5(4)Subsec. (e). , substituted provisions that if the decision of the Secretary is in favor of the commercial fisherman filing the claim, the Secretary shall award to such claimant reasonable attorney’s fees and claim preparation fees incurred by claimant in pursuing such claim for provisions that upon a decision in favor of the claimant fisherman, the hearing examiner include in the award reasonable attorney’s fees incurred by the claimant in pursuing such claim.

Pub. L. 97–212, § 5(5)Subsec. (f). , substituted “the Secretary” for “hearing examiner” and “proceeding” for “hearing” wherever appearing. The amendment which directed the substitution of “the Secretary” for “hearing examiner” was executed by substituting “the Secretary” for “the hearing examiner”, as the probable intent of Congress, to avoid repeating the article “the” before “Secretary” in two places.

Pub. L. 97–212, § 5(6)Subsec. (g). , substituted “Any proceeding conducted with respect to an initial determination on a claim under subsection (d)(3)(A) shall be conducted within such United States judicial district as may be mutually agreeable to the claimant and the Secretary or, if no agreement can be reached, within the United States judicial district in which the home port of the claimant is located” for “A hearing conducted under this section shall be conducted within the United States judicial district within which the matter giving rise to the claim occurred, or, if such matter occurred within two or more districts, in any of the affected districts, or, if such matter occurred outside of any district, in the nearest district”.

Pub. L. 97–212, § 5(7)(A)Subsec. (h)(1). , substituted provisions that the amount awarded in an initial determination by the Secretary under subsec. (d) be immediately disbursed by the Secretary if the claimant states in writing that he will not petition for review of the initial determination and he enters into an agreement with the Secretary to repay to the Secretary all or any part of the award that is not sustained upon later judicial review for provisions that upon a decision of the hearing examiner and in absence of judicial review, any amount to be paid would be certified to the Secretary who would promptly disburse the award and that such decision of the hearing examiner was not reviewable by the Secretary.

Pub. L. 97–212, § 5(7)(B)Subsec. (h)(2). , inserted provision that any moneys recovered by the Secretary through subrogation shall be deposited into the Fund.

Pub. L. 97–212, § 5(8)Subsec. (i). , substituted “Any claimant or other person who suffers a legal wrong or who is adversely affected or aggrieved by a final determination of the Secretary under subsection (d), may, no later than 30 days after such determination is made, seek judicial review of the determination in the United States district court for such United States judicial district as may be mutually agreeable to the parties concerned or, if no agreement can be reached, in the United States district court for the United States judicial district in which is located the home port of the claimant” for “Any person who suffers legal wrong or who is adversely affected or aggrieved by the decision of a hearing examiner under this section may, no later than 60 days after such decision is made, seek judicial review of such decision in the United States court of appeals for the circuit in which the damage occurred, or if such damage occurred outside of any circuit, in the United States court of appeals for the nearest circuit”.

Statutory Notes and Related Subsidiaries

Effective Date of 1982 Amendment

Pub. L. 97–212June 30, 1982section 1845(a) of this title section 9 of Pub. L. 97–212 section 1841 of this titleAmendment by applicable with respect to claims for damages filed on or after , with the Secretary of Commerce under , with provision for the refiling of previously filed claims under certain circumstances, see , set out as a note under .

Compensation for Certain Fishing Vessel and Gear Damage; Application

section 1980 of Title 22Dec. 22, 1980Pub. L. 96–561, title IIDec. 22, 198094 Stat. 3300 section 1980 of Title 22Authority to owners or operators of fishing vessels and commercial fishermen failing to make application for compensation within the time limitations of this section or , Foreign Relations and Intercourse, to make application for compensation within the 60-day period beginning on , see section 240(a), (b)(1) of , , , set out as a note under .