II 

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. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Acceptance of Liability and Expedited Claims at Mis6 sissippi Canyon 252 Act’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—DEEPWATER HORIZON CLAIMS RESOLUTION 

Sec. 101. Findings and purpose. 

Sec. 102. Definitions. 

Subtitle A—Office of Deepwater Horizon Claims Compensation 

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. 

Subtitle B—Deepwater Horizon Compensation Procedures 

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. 

Subtitle C—Awards 

Sec. 131. Amount. 

Sec. 132. Payment. 

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

Sec. 134. Subrogation. 

Subtitle D—Judicial Review 

Sec. 141. Judicial review of rules and regulations. 

Sec. 142. Judicial review of award decisions. 

Sec. 143. Other judicial challenges. 

Subtitle E—Effect on Other Laws 

Sec. 151. Effect on other laws. 


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TITLE II—LIABILITY 

Sec. 201. Liability for Deepwater Horizon oil spill. 

1 TITLE I—DEEPWATER HORIZON 

2 CLAIMS RESOLUTION 

3 SEC. 101. FINDINGS AND PURPOSE. 

4 (a) FINDINGS.—Congress finds that— 

5 (1) the oil spill resulting from the Deepwater 

6 Horizon incident has caused major economic damage 

7 to the residents of the States bordering the Gulf of 

8 Mexico; 

9 (2) the limits on strict liability imposed by the 

10 Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.) 

11 will be exceeded by the claims resulting from the 

12 Deepwater Horizon incident; and 

13 (3) while the Oil Pollution Act of 1990 (33 

14 U.S.C. 2701 et seq.) places no restrictions on liabil15 ity for damages from the accident under State law, 

16 litigation of such cases may take decades, and con17 sume in litigation expenses funds that could other18 wise be used to quickly and efficiently compensate 

19 the citizens of the Gulf States for damages resulting 

20 from the Deepwater Horizon incident. 

21 (b) PURPOSE.—The purpose of this title is to create 

22 a fair and efficient system for the payment of legitimate 

23 present and future claims for damages resulting from the 

24 Deepwater Horizon incident. 


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1 SEC. 102. DEFINITIONS. 

2 In this title: 

3 (1) ADMINISTRATOR.—The term ‘‘Adminis4 trator’’ means the Administrator of the Office. 

5 (2) ADVISORY COMMITTEE.—The term ‘‘Advi6 sory Committee’’ means the Advisory Committee on 

7 Deepwater Horizon Compensation established under 

8 section 115(a). 

9 (3) CLAIM.—The term ‘‘claim’’ means any 

10 claim, based on any theory, allegation, or cause of 

11 action, for damages presented in a civil action or 

12 bankruptcy proceeding, directly, indirectly, or deriva13 tively arising out of, based on, or related to, in whole 

14 or in part, the effects of the Deepwater Horizon in15 cident. 

16 (4) CLAIMANT.—The term ‘‘claimant’’ means a 

17 person or State who files a claim under section 123. 

18 (5) CIVIL ACTION.— 

19 (A) IN GENERAL.—The term ‘‘civil action’’ 

20 means a civil action filed in Federal or State 

21 court, whether cognizable as a case at law, in 

22 equity, or in admiralty. 

23 (B) EXCLUSION.—The term ‘‘civil action’’ 

24 does not include an action relating to any work25 ers’ compensation law. 


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1 (6) COLLATERAL SOURCE COMPENSATION.— 

2 The term ‘‘collateral source compensation’’ means 

3 the compensation that a claimant received, or is en4 titled to receive, from a responsible party as a result 

5 of a final judgment, settlement, or other payment 

6 for damages that are the source of a claim under 

7 section 123, including payments made under the Oil 

8 Pollution Act of 1990 (33 U.S.C. 2701 et seq.). 

9 (7) COMPENSATION PROGRAM.—The term 

10 ‘‘compensation program’’ means the compensation 

11 program established under this title. 

12 (8) DAMAGES.—The term ‘‘damages’’ means 

13 damages specified in section 131(b), including the 

14 cost of assessing those damages. 

15 (9) DEEPWATER HORIZON INCIDENT.—The 

16 term ‘‘Deepwater Horizon incident’’ means the blow17 out and explosion of the Deepwater Horizon oil rig 

18 that occurred on April 20, 2010, and resulting hy19 drocarbon releases into the environment. 

20 (10) DEPARTMENT.—The term ‘‘Department’’ 

21 means the Department of the Interior. 

22 (11) FUND.—The term ‘‘Fund’’ means the Oil 

23 Spill Liability Trust Fund established by section 

24 9509 of the Internal Revenue Code of 1986. 


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1 (12) LAW.—The term ‘‘law’’ includes all law, 

2 judicial or administrative decisions, rules, regula3 tions, or any other principle or action having the ef4 fect of law. 

5 (13) OFFICE.—The term ‘‘Office’’ means the 

6 Office of Deepwater Horizon Claims Compensation 

7 established under section 111. 

8 (14) PARTIES.—The term ‘‘parties’’ means, 

9 with respect to an individual claim, the claimant and 

10 the responsible party. 

11 (15) PERSON.— 

12 (A) IN GENERAL.—The term ‘‘person’’ 

13 means an individual, trust, firm, joint stock 

14 company, partnership, association, insurance 

15 company, reinsurance company, or corporation. 

16 (B) EXCLUSIONS.—The term ‘‘person’’ 

17 does not include— 

18 (i) the United States; 

19 (ii) a State; or 

20 (iii) a political subdivision of a State. 

21 (16) RESPONSIBLE PARTY.—The term ‘‘respon22 sible party’’ means a responsible party (as defined in 

23 section 1001 of the Oil Pollution Act of 1990 (33 

24 U.S.C. 2701)) for the Deepwater Horizon incident. 


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1 (17) SECRETARY.—The term ‘‘Secretary’’ 

2 means the Secretary of the Interior. 

3 (18) STATE.—The term ‘‘State’’ means 

4 (A) each of the several States of the 

5 United States; 

6 (B) the District of Columbia; 

7 (C) the Commonwealth of Puerto Rico; 

8 (D) Guam; 

9 (E) American Samoa; 

10 (F) the Commonwealth of the Northern 

11 Mariana Islands; 

12 (G) the Federated States of Micronesia; 

13 (H) the Republic of the Marshall Islands; 

14 (I) the Republic of Palau; and 

15 (J) the United States Virgin Islands.. 

16 (19) SUCCESSOR IN INTEREST.—The term 

17 ‘‘successor in interest’’ means any person that ac18 quires assets, and substantially continues the busi19 ness operations, of a responsible party, considering 

20 factors that include— 

21 (A) retention of the same facilities or loca22 tion; 

23 (B) retention of the same employees; 

24 (C) maintaining the same job under the 

25 same working conditions; 


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1 (D) retention of the same supervisory per2 sonnel; 

3 (E) continuity of assets; 

4 (F) production of the same product or 

5 offer of the same service; 

6 (G) retention of the same name; 

7 (H) maintenance of the same customer 

8 base; 

9 (I) identity of stocks, stockholders, and di10 rectors between the asset seller and the pur11 chaser; or 

12 (J) whether the successor holds itself out 

13 as continuation of previous enterprise, but ex14 pressly does not include whether the person ac15 tually knew of the liability of the responsible 

16 party under this title. 

17 Subtitle A—Office of Deepwater 

18 Horizon Claims Compensation 

19 SEC. 111. ESTABLISHMENT OF OFFICE OF DEEPWATER HO20 RIZON CLAIMS COMPENSATION. 

21 (a) IN GENERAL.— 

22 (1) ESTABLISHMENT.—There is established 

23 within the Department the Office of Deepwater Ho24 rizon Claims Compensation, which shall be headed 

25 by the Administrator. 


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1 (2) PURPOSE.—The purpose of the Office shall 

2 be to provide timely, fair compensation, under the 

3 terms specified in this title, on a no-fault basis and 

4 in a nonadversarial manner, to persons and State or 

5 local governments that have incurred damages as a 

6 result of the Deepwater Horizon incident. 

7 (3) TERMINATION OF THE OFFICE.—The Office 

8 shall terminate effective not later than 1 year fol9 lowing the date of certification by the Administrator 

10 that the Fund has neither paid a claim in the pre11 vious 1-year period nor has debt obligations remain12 ing to pay. 

13 (4) EXPENSES.—The Fund shall be available to 

14 the Secretary for expenditure, without further ap15 propriation and without fiscal year limitation, as 

16 necessary for any and all expenses associated with 

17 the Office, including— 

18 (A) personnel salaries and expenses, in19 cluding retirement and similar benefits; and 

20 (B) all administrative and legal expenses. 

21 (b) APPOINTMENT OF ADMINISTRATOR.— 

22 (1) IN GENERAL.—The Administrator of the 

23 Office shall be appointed by the President, by and 

24 with the advice and consent of the Senate. 


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1 (2) TERM.—The term of the Administrator 

2 shall be 5 years. 

3 (3) REPORTING.—The Administrator shall re4 port directly to the Assistant Secretary for Policy, 

5 Management, and Budget of the Department. 

6 (c) DUTIES OF ADMINISTRATOR.— 

7 (1) IN GENERAL.—The Administrator shall be 

8 responsible for— 

9 (A) processing claims for compensation for 

10 damages to eligible claimants in accordance 

11 with the criteria and procedures established 

12 under subtitle B; 

13 (B) appointing or contracting for the serv14 ices of such personnel, making such expendi15 tures, and taking any other actions as may be 

16 necessary to carry out the responsibilities of the 

17 Office, including entering into cooperative 

18 agreements with other Federal or State agen19 cies and entering into contracts with nongovern20 mental entities; 

21 (C) conducting such audits and additional 

22 oversight as necessary to assure the integrity of 

23 the compensation program; 


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1 (D) promulgating such rules, regulations, 

2 and procedures as may be necessary to carry 

3 out this title; 

4 (E) making such expenditures as may be 

5 necessary in carrying out this title; 

6 (F) excluding evidence and disqualifying or 

7 debarring any attorney or other individual or 

8 entity who provide evidence in support of the 

9 application of the claimant for compensation if 

10 the Administrator determines that materially 

11 false, fraudulent, or fictitious statements or 

12 practices have been submitted or engaged in by 

13 the individual or entity; and 

14 (G) having all other powers incidental, nec15 essary, or appropriate to carrying out the func16 tions of the Office. 

17 (2) CERTAIN ENFORCEMENT.— 

18 (A) FALSE STATEMENTS.—For each in19 fraction described in paragraph (1)(F), the Ad20 ministrator may impose a civil penalty not to 

21 exceed $10,000 on any individual or entity 

22 found to have submitted or engaged in a mate23 rially false, fraudulent, or fictitious statement 

24 or practice under this title. 


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1 (B) OTHER POWERS.—The Administrator 

2 shall issue appropriate regulations to carry out 

3 paragraph (1)(G). 

4 (d) AUDIT AND PERSONNEL REVIEW PROCE5 DURES.—The Administrator shall establish audit and per6 sonnel review procedures for evaluating the accuracy of 

7 eligibility recommendations of agency and contract per8 sonnel. 

9 SEC. 112. CLAIMANT ASSISTANCE. 

10 (a) ESTABLISHMENT.—Not later than 180 days after 

11 the date of enactment of this Act, the Administrator shall 

12 establish a comprehensive claimant assistance program— 

13 (1) to publicize and provide information to po14 tential claimants about— 

15 (A) the availability of benefits for eligible 

16 claimants under this title; and 

17 (B) the procedures for filing claims and for 

18 obtaining assistance in filing claims; 

19 (2) to provide assistance to potential claimants 

20 in preparing and submitting claims, including assist21 ance in obtaining the documentation necessary to 

22 support a claim; 

23 (3) to respond to inquiries from claimants and 

24 potential claimants; 


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1 (4) to provide training with respect to the appli2 cable procedures for the preparation and filing of 

3 claims to persons who provide assistance or rep4 resentation to claimants, including nonprofit organi5 zations and State and local government entities; and 

6 (5) to provide for the establishment of a website 

7 on which claimants may access all relevant forms 

8 and information. 

9 (b) RESOURCE CENTERS.— 

10 (1) IN GENERAL.—The claimant assistance pro11 gram shall provide for the establishment of resource 

12 centers in areas in which there are determined to be 

13 large concentrations of potential claimants. 

14 (2) LOCATION.—The centers shall be located, to 

15 the maximum extent practicable, in facilities of the 

16 Department or other Federal agencies. 

17 (c) ATTORNEY’S FEES.— 

18 (1) IN GENERAL.—Notwithstanding any other 

19 provision of law, the representative of an individual 

20 may not receive, for services rendered in connection 

21 with the claim of an individual under this title, more 

22 than 5 percent of a final award made (whether by 

23 the Administrator initially or as a result of adminis24 trative review) on the claim. 


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1 (2) PENALTY.—Any representative of a claim2 ant who violates this subsection shall be fined not 

3 more than the greater of— 

4 (A) $5,000; or 

5 (B) twice the amount received by the rep6 resentative for services rendered in connection 

7 with each violation. 

8 SEC. 113. COMPENSATION PROGRAM STARTUP. 

9 (a) INTERIM REGULATIONS.—Not later than 90 days 

10 after the date of enactment of this Act, the Administrator 

11 shall issue interim regulations and procedures for the 

12 processing of claims under this title. 

13 (b) INTERIM PERSONNEL.— 

14 (1) IN GENERAL.—The Secretary and the As15 sistant Secretary for Policy, Management, and 

16 Budget of the Department may make available to 

17 the Administrator on a temporary basis such per18 sonnel and other resources as may be necessary to 

19 facilitate the expeditious startup of the compensa20 tion program. 

21 (2) CONTRACTS.—The Administrator may con22 tract with individuals or entities having relevant ex23 perience to assist in the expeditious startup of the 

24 compensation program. 


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1 (c) EXTREME FINANCIAL HARDSHIP CLAIMS.—In 

2 the final regulations promulgated under section 111(c), 

3 the Administrator shall designate categories of claims to 

4 be handled on an expedited basis as a result of extreme 

5 financial hardship. 

6 (d) INTERIM ADMINISTRATOR.—Until an Adminis7 trator is appointed and confirmed under section 111(b), 

8 the responsibilities of the Administrator under this title 

9 shall be performed by the Assistant Secretary for Policy, 

10 Management, and Budget of the Department, who shall 

11 have all the authority conferred by this title on the Admin12 istrator and who shall be considered to be the Adminis13 trator for purposes of this title. 

14 (e) STAY OF CLAIMS; RETURN TO TORT SYSTEM.— 

15 (1) STAY OF CLAIMS.— 

16 (A) PENDING ACTIONS.—Notwithstanding 

17 any other provision of this title, any claim for 

18 damages pending in any Federal or State court 

19 for monetary damages related to the Deepwater 

20 Horizon incident as of the date of enactment of 

21 this Act shall be subject to a stay. 

22 (B) FUTURE ACTIONS.—Notwithstanding 

23 any other provision of this title, any claim for 

24 damages filed in any Federal or State court for 

25 monetary damages related to the Deepwater 


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1 Horizon incident after the date of enactment of 

2 this Act shall be subject to a stay 60 days after 

3 the date of the filing of the claim, unless the 

4 claimant has filed an election to pursue the 

5 claim for damages in the Federal or State court 

6 under paragraph (2). 

7 (2) CLAIMS.—To be eligible for a claim, any 

8 person or State that has filed a timely claim seeking 

9 a judgment or order for monetary damages related 

10 to the Deepwater Horizon incident in any Federal or 

11 State court before, on, or after the date of enact12 ment of this Act, shall file with the Administrator 

13 and serve on all defendants in the pending court ac14 tion an election to pursue the claim for damages 

15 under this title or continue to pursue the claim in 

16 the Federal or State court— 

17 (A) not later than 60 days after the date 

18 of enactment of this Act, if the claim was filed 

19 in a Federal or State court before the date of 

20 enactment of this Act; and 

21 (B) not later than 60 days after the date 

22 of the filing of the claim, if the claim is filed 

23 in a Federal or State court on or after the date 

24 of enactment of this Act. 


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1 (3) STAY.—Until the claimant files an election 

2 under paragraph (2) to continue to pursue the claim 

3 in the Federal or State court, the stay under para4 graph (1) shall remain in effect. 

5 (4) EFFECT OF ELECTION.— 

6 (A) IN GENERAL.—Any claimant that has 

7 elected to pursue a claim for damages in Fed8 eral or State court under paragraph (2) shall 

9 not be eligible for an award for those damages 

10 under section 131. 

11 (B) STAY OF CLAIM.—Any claim seeking a 

12 judgment or order for monetary damages relat13 ing to the Deepwater Horizon incident in any 

14 Federal or State court filed by a claimant that 

15 has received a judgment for damages under this 

16 title for that claim shall be permanently stayed. 

17 (5) EFFECT OF OPERATIONAL OR NON18 OPERATIONAL FUND.— 

19 (A) REINSTATEMENT OF CLAIMS.—If, 

20 after 270 days after the date of enactment of 

21 this Act, the Administrator cannot certify to 

22 Congress that the Office is operational and pay23 ing claims at a reasonable rate, each person or 

24 State that has filed a claim stayed under this 

25 subsection may continue the claims of the perVerDate Mar 15 2010 00:03 May 27, 2010 Jkt 089200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S3410.PCS S3410

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1 son or State in the court in which the case was 

2 pending prior to the stay. 

3 (B) OPERATIONAL OFFICE.—If the Admin4 istrator subsequently certifies to Congress that 

5 the Office has become operational and paying 

6 all valid claims at a reasonable rate, any claim 

7 in a civil action in Federal or State court that 

8 is not actually on trial before a jury that has 

9 been impaneled and presentation of evidence 

10 has commenced, but before deliberation, or be11 fore a judge and is at the presentation of evi12 dence, may, at the option of the claimant, be 

13 considered a reinstated claim before the Admin14 istrator and the civil action before the Federal 

15 or State court shall be null and void. 

16 (C) NONOPERATIONAL OFFICE.—Notwith17 standing any other provision of this title, if the 

18 Administrator certifies to Congress that the Of19 fice cannot become operational and paying all 

20 valid claims at a reasonable rate, all claims that 

21 have a stay may be filed or reinstated. 

22 SEC. 114. AUTHORITY OF ADMINISTRATOR. 

23 On any matter within the jurisdiction of the Adminis24 trator under this title, the Administrator may— 


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1 (1) issue subpoenas for and compel the attend2 ance of witnesses within a radius of 200 miles; 

3 (2) administer oaths; 

4 (3) examine witnesses; 

5 (4) require the production of books, papers, 

6 documents, and other potential evidence; and 

7 (5) request assistance from other Federal agen8 cies with the performance of the duties of the Ad9 ministrator under this title. 

10 SEC. 115. ADVISORY COMMITTEE ON DEEPWATER HORIZON 

11 COMPENSATION. 

12 (a) ESTABLISHMENT.— 

13 (1) IN GENERAL.—Not later than 120 days 

14 after the date of enactment of this Act, the Adminis15 trator shall establish an Advisory Committee on 

16 Deepwater Horizon Compensation. 

17 (2) COMPOSITION AND APPOINTMENT.— 

18 (A) IN GENERAL.—The Advisory Com19 mittee shall be composed of 24 members, ap20 pointed in accordance with this paragraph. 

21 (B) LEGISLATIVE APPOINTMENTS.— 

22 (i) IN GENERAL.—The Majority Lead23 er of the Senate, the Minority Leader of 

24 the Senate, the Speaker of the House of 

25 Representatives, and the Minority Leader 


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1 of the House of Representatives shall each 

2 appoint 4 members to the Advisory Com3 mittee. 

4 (ii) REPRESENTATION.—Of the 4 

5 members appointed by each Member under 

6 clause (i)— 

7 (I) 2 members shall represent the 

8 interests of claimants; and 

9 (II) 2 members shall represent 

10 the interests of responsible parties. 

11 (C) APPOINTMENTS BY ADMINISTRATOR.— 

12 The Administrator shall appoint 8 members to 

13 the Advisory Committee, who shall be individ14 uals with qualifications and expertise relevant 

15 to the compensation program, including experi16 ence or expertise in marine or coastal ecology, 

17 oil spill remediation, fisheries management, ad18 ministering compensation programs, or audits. 

19 (b) DUTIES.—The Advisory Committee shall advise 

20 the Administrator on— 

21 (1) claims filing and claims processing proce22 dures; 

23 (2) claimant assistance programs; 


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1 (3) audit procedures and programs to ensure 

2 the quality and integrity of the compensation pro3 gram; 

4 (4) analyses or research that should be con5 ducted to evaluate past claims and to project future 

6 claims under the compensation program; and 

7 (5) such other matters related to the implemen8 tation of this title as the Administrator considers ap9 propriate. 

10 (c) OPERATION OF COMMITTEE.— 

11 (1) TERM.—The term of a member of the Advi12 sory Committee shall be 3 years. 

13 (2) CHAIRPERSON AND VICE CHAIRPERSON.— 

14 The Administrator shall designate a Chairperson 

15 and Vice Chairperson of the Advisory Committee 

16 from among the members appointed under sub17 section (a)(2)(C). 

18 (3) MEETINGS.—The Advisory Committee shall 

19 meet— 

20 (A) at the call of the Chairperson or a ma21 jority of the members of the Advisory Com22 mittee; and 

23 (B) at least— 

24 (i) 4 times per year during the first 3 

25 years of the compensation program; and 


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1 (ii) 2 times per year thereafter. 

2 (4) INFORMATION.— 

3 (A) IN GENERAL.—The Administrator 

4 shall provide to the Advisory Committee such 

5 information as is necessary and appropriate for 

6 the Advisory Committee to carry out this sec7 tion. 

8 (B) OTHER AGENCIES.— 

9 (i) IN GENERAL.—On request of the 

10 Advisory Committee, the Administrator 

11 may secure directly from any Federal, 

12 State, or local department or agency such 

13 information as may be necessary to enable 

14 the Advisory Committee to carry out this 

15 section. 

16 (ii) PROVISION OF INFORMATION.— 

17 On request of the Administrator, the head 

18 of the department or agency described in 

19 clause (i) shall furnish such information to 

20 the Advisory Committee. 

21 (5) ADMINISTRATIVE SUPPORT.—The Adminis22 trator shall provide the Advisory Committee with 

23 such administrative support as is reasonably nec24 essary to enable the Advisory Committee to carry 

25 out this section. 


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1 (d) EXPENSES.—A member of the Advisory Com2 mittee, other than a full-time Federal employee, while at3 tending a meeting of the Advisory Committee or while oth4 erwise serving at the request of the Administrator, and 

5 while serving away from the home or regular place of busi6 ness of the member, shall be allowed travel and meal ex7 penses, including per diem in lieu of subsistence, as au8 thorized by section 5703 of title 5, United States Code, 

9 for individuals in the Federal Government serving without 

10 pay. 

11 Subtitle B—Deepwater Horizon 

12 Compensation Procedures 

13 SEC. 121. ESSENTIAL ELEMENTS OF ELIGIBLE CLAIM. 

14 To be eligible for an award under this title for dam15 ages, a claimant shall— 

16 (1) file a claim in a timely manner in accord17 ance with section 123; and 

18 (2) prove, by a preponderance of the evidence, 

19 that the claimant has suffered damages as a result 

20 of the Deepwater Horizon incident. 

21 SEC. 122. GENERAL RULE CONCERNING NO-FAULT COM22 PENSATION. 

23 To be eligible for an award under this title for dam24 ages, a claimant shall not be required to demonstrate that 


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1 the damages for which the claim is being made resulted 

2 from the negligence or other fault of any other person. 

3 SEC. 123. FILING OF CLAIMS. 

4 (a) ELIGIBLE CLAIMANTS.— 

5 (1) IN GENERAL.—Any person or State that 

6 has suffered damage as a result of the Deepwater 

7 Horizon incident may file a claim with the Office for 

8 an award with respect to the damage. 

9 (2) LIMITATION.—A claim may not be filed by 

10 any person or State under this title for contribution 

11 or indemnity. 

12 (b) STATUTE OF LIMITATIONS.—Except as otherwise 

13 provided in this subsection, if a person or State fails to 

14 file a claim with the Office under this section during the 

15 5-year period beginning on the date on which the person 

16 or State first discovered facts that would have led a rea17 sonable person to conclude that damage had occurred, any 

18 claim relating to the damage, and any other claim related 

19 to that damage, shall be extinguished, and any recovery 

20 on the damage shall be prohibited. 

21 (c) FUTURE CLAIMS NOT PRECLUDED.—Filing of a 

22 claim under subsection (a) shall not preclude the filing of 

23 additional claims for damages arising from the Deepwater 

24 Horizon incident that are manifest at a later date. 


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1 (d) REQUIRED INFORMATION.—A claim filed under 

2 subsection (a) shall be in such form, and contain such in3 formation in such detail, as the Administrator shall by 

4 regulation prescribe. 

5 (e) DATE OF FILING.—A claim shall be considered 

6 to be filed on the date that the claimant mails the claim 

7 to the Office, as determined by postmark, or on the date 

8 that the claim is received by the Office, whichever is the 

9 earliest determinable date. 

10 (f) INCOMPLETE CLAIMS.— 

11 (1) IN GENERAL.—If a claim filed under sub12 section (a) is incomplete, the Administrator shall no13 tify the claimant of the information necessary to 

14 complete the claim and inform the claimant of such 

15 services as may be available through the claimant 

16 assistance program established under section 112 to 

17 assist the claimant in completing the claim. 

18 (2) TIME PERIODS.— 

19 (A) IN GENERAL.—Except as provided in 

20 subparagraph (B), any time period for the proc21 essing of the claim shall be suspended until 

22 such time as the claimant submits the informa23 tion necessary to complete the claim. 

24 (B) DEADLINE.—If the information de25 scribed in subparagraph (A) is not received durVerDate Mar 15 2010 00:03 May 27, 2010 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S3410.PCS S3410

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1 ing the 1-year period beginning on the date of 

2 the notification, the claim shall be dismissed. 

3 SEC. 124. ELIGIBILITY DETERMINATIONS AND CLAIM 

4 AWARDS. 

5 (a) IN GENERAL.— 

6 (1) REVIEW OF CLAIMS.—The Administrator 

7 shall, in accordance with this section, determine 

8 whether each claim filed satisfies the requirements 

9 for eligibility for an award under this title and, if so, 

10 the value of the award. 

11 (2) FACTORS.—In making a determination 

12 under paragraph (1), the Administrator shall con13 sider— 

14 (A) the claim presented by the claimant; 

15 (B) the factual evidence submitted by the 

16 claimant in support of the claim; and 

17 (C) the results of such investigation as the 

18 Administrator may consider necessary to deter19 mine whether the claim satisfies the criteria for 

20 eligibility established by this title. 

21 (3) ADDITIONAL EVIDENCE.— 

22 (A) IN GENERAL.—The Administrator may 

23 request the submission of evidence in addition 

24 to the minimum requirements of section 123 if 


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1 necessary to make a determination of eligibility 

2 for an award. 

3 (B) COST.—If the Administrator requests 

4 additional evidence under subparagraph (A), 

5 the cost of obtaining the additional evidence 

6 shall be borne by the Office. 

7 (b) PROPOSED DECISIONS.— 

8 (1) IN GENERAL.—Not later than 90 days after 

9 the date of the filing of a claim, the Administrator 

10 shall provide to the parties a proposed decision— 

11 (A) accepting or rejecting the claim in 

12 whole or in part; and 

13 (B) specifying the amount of any proposed 

14 award. 

15 (2) FORM.—The proposed decision shall— 

16 (A) be in writing; 

17 (B) contain findings of fact and conclu18 sions of law; and 

19 (C) contain an explanation of the proce20 dure for obtaining review of the proposed deci21 sion. 

22 (c) REVIEW OF PROPOSED DECISIONS.— 

23 (1) RIGHT TO HEARING.— 

24 (A) IN GENERAL.—Any party not satisfied 

25 with a proposed decision of the Administrator 


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1 under subsection (b) shall be entitled, on writ2 ten request made not later than 90 days after 

3 the date of the issuance of the decision, to a 

4 hearing on the claim of the claimant before a 

5 representative of the Administrator. 

6 (B) TESTIMONY.—At the hearing, the 

7 party shall be entitled to present oral evidence 

8 and written testimony in further support of the 

9 claim. 

10 (C) CONDUCT OF HEARING.— 

11 (i) IN GENERAL.—The hearing shall, 

12 to the maximum extent practicable, be con13 ducted at a time and place convenient for 

14 the claimant. 

15 (ii) ADMINISTRATION.—Except as 

16 otherwise provided in this title, in con17 ducting the hearing, the representative of 

18 the Administrator shall conduct the hear19 ing in a manner that best determines the 

20 rights of the parties and shall not be 

21 bound by— 

22 (I) common law or statutory 

23 rules of evidence; 

24 (II) technical or formal rules of 

25 procedure; or 


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1 (III) section 554 of title 5, 

2 United States Code. 

3 (iii) EVIDENCE.—For purposes of 

4 clause (ii), the representative of the Ad5 ministrator shall receive such relevant evi6 dence as the claimant adduces and such 

7 other evidence as the representative deter8 mines necessary or useful in evaluating the 

9 claim. 

10 (D) REQUEST FOR SUBPOENAS.— 

11 (i) IN GENERAL.—Subject to clause 

12 (iv), a party may request a representative 

13 of the Administrator to issue a subpoena 

14 but the decision to grant or deny the re15 quest is within the discretion of the rep16 resentative. 

17 (ii) SUBPOENAS.—Subject to clause 

18 (iii), the representative may issue sub19 poenas for— 

20 (I) the attendance and testimony 

21 of witnesses; and 

22 (II) the production of books, 

23 records, correspondence, papers, or 

24 other relevant documents. 


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1 (iii) PREREQUISITES.—Subpoenas 

2 may be issued for documents under this 

3 subparagraph only if — 

4 (I) in the case of documents, the 

5 documents are relevant and cannot be 

6 obtained by other means; and 

7 (II) in the case of witnesses, oral 

8 testimony is the best way to ascertain 

9 the facts. 

10 (iv) REQUEST.— 

11 (I) HEARING PROCESS.—A party 

12 may request a subpoena under this 

13 subparagraph only as part of the 

14 hearing process. 

15 (II) FORM.—To request a sub16 poena, the requester shall— 

17 (aa) submit the request in 

18 writing and send the to the rep19 resentative as early as prac20 ticable, but not later than 30 

21 days, after the date of the origi22 nal hearing request; and 

23 (bb) explain why the testi24 mony or evidence is directly rel25 evant to the issues at hand, and 


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1 a subpoena is the best method or 

2 opportunity to obtain the evi3 dence because there are no other 

4 means by which the documents 

5 or testimony could have been ob6 tained. 

7 (v) FEES AND MILEAGE.— 

8 (I) IN GENERAL.—Any person re9 quired by a subpoena to attend as a 

10 witness shall be allowed and paid the 

11 same fees and mileage as are paid 

12 witnesses in the district courts of the 

13 United States. 

14 (II) FUND.—The fees and mile15 age shall be paid from the Fund. 

16 (2) REVIEW OF WRITTEN RECORD.— 

17 (A) IN GENERAL.—Instead of a hearing 

18 under paragraph (1), any party not satisfied 

19 with a proposed decision of the Administrator 

20 shall have the option, on written request made 

21 not later than 90 days after the date of the 

22 issuance of the decision, of obtaining a review 

23 of the written record by a representative of the 

24 Administrator. 


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1 (B) OPPORTUNITY TO BE HEARD.—If a re2 view is requested under subparagraph (A), the 

3 parties shall be afforded an opportunity to sub4 mit any written evidence or argument that the 

5 claimant believes relevant. 

6 (d) FINAL DECISIONS.— 

7 (1) IN GENERAL.—If the period of time for re8 questing review of the proposed decision expires and 

9 no request has been filed, or if the parties waive any 

10 objections to the proposed decision, the Adminis11 trator shall issue a final decision. 

12 (2) VARIANCE FROM PROPOSED DECISION.—If 

13 the decision materially differs from the proposed de14 cision, the parties shall be entitled to review of the 

15 decision under subsection (c). 

16 (3) TIMING.—If the parties request review of 

17 all or part of the proposed decision the Adminis18 trator shall issue a final decision on the claim not 

19 later than— 

20 (A) 180 days after the date the request for 

21 review is received, if a party requests a hearing; 

22 or 

23 (B) 90 days after the date the request for 

24 review is received, if the claimant requests re25 view of the written record. 


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1 (4) CONTENT.—The decision shall be in writing 

2 and contain findings of fact and conclusions of law. 

3 (e) REPRESENTATION.—A party may authorize an 

4 attorney or other individual to represent the party in any 

5 proceeding under this title. 

6 Subtitle C—Awards 

7 SEC. 131. AMOUNT. 

8 (a) IN GENERAL.—A claimant that meets the re9 quirements of section 121 shall be entitled to an award 

10 in an amount equal to the damages specified in subsection 

11 (b) sustained as a result of Deepwater Horizon incident. 

12 (b) COVERED DAMAGES.—For purposes of subsection 

13 (a), covered damages shall be 1 or more of the following 

14 types of damages (if applicable): 

15 (1) REAL OR PERSONAL PROPERTY.—Damages 

16 for injury to, or economic losses resulting from de17 struction of, real or personal property, which shall 

18 be recoverable by a claimant who owns or leases that 

19 property. 

20 (2) SUBSISTENCE USE.—Damages for loss of 

21 subsistence use of natural resources, which shall be 

22 recoverable by any claimant who so uses natural re23 sources that have been injured, destroyed, or lost, 

24 without regard to the ownership or management of 

25 the resources. 


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1 (3) REVENUES.—Damages equal to the net loss 

2 of taxes, royalties, rents, fees, or net profit shares 

3 due to the injury, destruction, or loss of real prop4 erty, personal property, or natural resources, which 

5 shall be recoverable by a State or a political subdivi6 sion of a State. 

7 (4) PROFITS AND EARNING CAPACITY.—Dam8 ages equal to the loss of profits or impairment of 

9 earning capacity due to the injury, destruction, or 

10 loss of real property, personal property, or natural 

11 resources, which shall be recoverable by any claim12 ant. 

13 (5) PUBLIC SERVICES.—Damages for net costs 

14 of providing increased or additional public services 

15 during or after removal activities, including protec16 tion from fire, safety, or health hazards, caused by 

17 a discharge of oil, which shall be recoverable by a 

18 State or a political subdivision of a State. 

19 SEC. 132. PAYMENT. 

20 (a) PAYMENTS.—Not later than 30 days after a final 

21 determination of an award under this title, a claimant that 

22 is entitled to an award under this title shall receive the 

23 amount of the award through payments from the respon24 sible parties. 


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1 (b) LIMITATION ON TRANSFERABILITY.—A claim 

2 filed under this title shall not be assignable or otherwise 

3 transferable under this title. 

4 SEC. 133. SETOFFS FOR COLLATERAL SOURCE COMPENSA5 TION AND PRIOR AWARDS. 

6 The amount of an award otherwise available to a 

7 claimant under this title shall be reduced by the amount 

8 of collateral source compensation. 

9 SEC. 134. SUBROGATION. 

10 Any person that pays compensation pursuant to this 

11 title to any claimant for damages shall be subrogated to 

12 all rights, claims, and causes of action the claimant has 

13 under any other law. 

14 Subtitle D—Judicial Review 

15 SEC. 141. JUDICIAL REVIEW OF RULES AND REGULATIONS. 

16 (a) EXCLUSIVE JURISDICTION.—The United States 

17 Court of Appeals for the District of Columbia Circuit shall 

18 have exclusive jurisdiction over any action to review rules 

19 or regulations promulgated by the Administrator under 

20 this title. 

21 (b) PERIOD FOR FILING PETITION.—A petition for 

22 review under this section shall be filed not later than 60 

23 days after the date notice of the promulgation of the rules 

24 or regulations appears in the Federal Register. 


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1 (c) EXPEDITED PROCEDURES.—The United States 

2 Court of Appeals for the District of Columbia shall provide 

3 for expedited procedures for reviews under this section. 

4 SEC. 142. JUDICIAL REVIEW OF AWARD DECISIONS. 

5 (a) IN GENERAL.—Any claimant or responsible party 

6 adversely affected or aggrieved by a final decision of the 

7 Administrator awarding or denying compensation under 

8 this title may petition for judicial review of the decision. 

9 (b) PERIOD FOR FILING PETITION.—Any petition for 

10 review under this section shall be filed not later than 90 

11 days after the date of issuance of a final decision of the 

12 Administrator. 

13 (c) EXCLUSIVE JURISDICTION.—A petition for review 

14 may only be filed in the United States Court of Appeals 

15 for the circuit in which the claimant resides at the time 

16 of the issuance of the final order. 

17 (d) STANDARD OF REVIEW.—The court shall uphold 

18 the decision of the Administrator unless the court deter19 mines, on review of the record as a whole, that the decision 

20 is not supported by substantial evidence, is contrary to 

21 law, or is not in accordance with procedure required by 

22 law. 

23 (e) EXPEDITED PROCEDURES.—The United States 

24 Court of Appeals shall provide for expedited procedures 

25 for reviews under this section. 


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1 SEC. 143. OTHER JUDICIAL CHALLENGES. 

2 (a) EXCLUSIVE JURISDICTION.—The United States 

3 District Court for the District of Columbia shall have ex4 clusive jurisdiction over any action for declaratory or in5 junctive relief challenging any provision of this title. 

6 (b) PERIOD FOR FILING PETITIONS.—An action 

7 under this section shall be filed not later than the later 

8 of— 

9 (1) the date that is 60 days after the date of 

10 enactment of this Act; or 

11 (2) the date that is 60 days after the final ac12 tion by the Administrator or the Office giving rise 

13 to the action. 

14 (c) DIRECT APPEAL.— 

15 (1) IN GENERAL.—A final decision in the action 

16 shall be reviewable on appeal directly to the Su17 preme Court. 

18 (2) ADMINISTRATION.—The appeal shall be 

19 taken by the filing of a notice of appeal not later 

20 than 30 days, and the filing of a jurisdictional state21 ment not later than 60 days, after the date of the 

22 entry of the final decision. 

23 (d) EXPEDITED PROCEDURES.—It is the sense of 

24 Congress that the Supreme Court and the United States 

25 District Court for the District of Columbia are urged to 

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1 imum extent practicable, the disposition of an action cov2 ered by this section. 

3 Subtitle E—Effect on Other Laws 

4 SEC. 151. EFFECT ON OTHER LAWS. 

5 This title shall supersede any Federal or State law 

6 to the extent that the law relates to any claim for damages 

7 compensated under this title. 

8 TITLE II—LIABILITY 

9 SEC. 201. LIABILITY FOR DEEPWATER HORIZON OIL SPILL. 

10 (a) IN GENERAL.—Congress finds that— 

11 (1) executives of British Petroleum Exploration 

12 & Production, Incorporated (referred to in this sec13 tion as ‘‘BP’’) testified before Congress in May 2010 

14 that BP would pay all legitimate claims relating to 

15 the Deepwater Horizon explosion and oil spill that 

16 exceed existing applicable economic liability limita17 tions; 

18 (2) a letter from the Group Chief Executive of 

19 BP to the Secretaries of Homeland Security and the 

20 Interior dated May 16, 2010, states in part that BP 

21 is ‘‘prepared to pay above $75 million’’ on ‘‘all legiti22 mate claims’’ relating to that explosion and oil spill; 

23 and 

24 (3) all documented legitimate claims pursuant 

25 to the Oil Pollution Act of 1990 (33 U.S.C. 2701 et 


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1 seq.) for economic damages relating to the Deep2 water Horizon explosion and oil spill should be paid 

3 by BP without limit on liability. 

4 (b) DIRECTIVE TO SECRETARY OF THE INTERIOR.— 

5 (1) IN GENERAL.—Notwithstanding any other 

6 provision of law, the Secretary of the Interior (re7 ferred to in this section as the ‘‘Secretary’’) shall re8 negotiate the terms of the lease known as ‘‘Mis9 sissippi Canyon 252’’ to reflect statements made by 

10 BP in the letter described in subsection (a)(2). 

11 (2) PAYMENT OF CLAIMS.—As a condition of 

12 the renegotiated lease described in paragraph (1), 

13 BP shall pay all damages awarded pursuant to title 

14 I. 


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Calendar No. 410 

111TH CONGRESS 

2D SESSION S. 3410 

A BILL 

To create a fair and efficient system to resolve 

existing applicable economic liability limitations. water Horizon explosion and oil spill that exceed 252’’ with respect to claims relating to the Deepterms of the lease known as ‘‘Mississippi Canyon the Secretary of the Interior to renegotiate the the Deepwater Horizon incident, and to direct claims of victims for economic injury caused by 

MAY 26, 2010 

Read the second time and placed on the calendar 


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