(2) Effect of law With respect to a person described in this subsection, nothing in this subsection-- (A) limits any defense to liability that may be available to the person under any other provision of law; or (B) imposes liability on the person that is not otherwise imposed by subsection (a) of this section. (3) Assurances The Administrator may-- (A) issue an assurance that no enforcement action under this chapter will be initiated against a person described in paragraph (1); and (B) grant a person described in paragraph (1) protection against a cost recovery or contribution action under section 9613(f) of this title. (r) Prospective purchaser and windfall lien (1) Limitation on liability Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser's being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration. (2) Lien If there are unrecovered response costs incurred by the United States at a facility for which an owner of the facility is not liable by reason of paragraph (1), and if each of the conditions described in paragraph (3) is met, the United States shall have a lien on the facility, or may by agreement with the owner, obtain from the owner a lien on any other property or other assurance of payment satisfactory to the Administrator, for the unrecovered response costs. (3) Conditions The conditions referred to in paragraph (2) are the following: (A) Response action A response action for which there are unrecovered costs of the United States is carried out at the facility. (B) Fair market value The response action increases the fair market value of the facility above the fair market value of the facility that existed before the response action was initiated. (4) Amount; duration A lien under paragraph (2)-- (A) shall be in an amount not to exceed the increase in fair market value of the property attributable to the response action at the time of a sale or other disposition of the property; (B) shall arise at the time at which costs are first incurred by the United States with respect to a response action at the facility; (C) shall be subject to the requirements of subsection (l)(3) of this section; and (D) shall continue until the earlier of-- (i) satisfaction of the lien by sale or other means; or (ii) notwithstanding any statute of limitations under section 9613 of this title, recovery of all response costs incurred at the facility. (Pub. L. 96-510, title I, Sec. 107, Dec. 11, 1980, 94 Stat. 2781; Pub. L. 99-499, title I, Secs. 107(a)-(d)(2), (e), (f), 127(b), (e), title II, Secs. 201, 207(c), Oct. 17, 1986, 100 Stat. 1628-1630, 1692, 1693, 1705; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 103-429, Sec. 7(e)(2), Oct. 31, 1994, 108 Stat. 4390; Pub. L. 104-208, div. A, title II, Sec. 2502(a), Sept. 30, 1996, 110 Stat. 3009-462; Pub. L. 104-287, Sec. 6(j)(2), Oct. 11, 1996, 110 Stat. 3400; Pub. L. 107- 118, title I, Sec. 102(a), title II, Secs. 221, 222(b), Jan. 11, 2002, 115 Stat. 2356, 2368, 2371.) References in Text Such amendments, referred to in the last sentence of subsec. (a), probably means the amendments made by Pub. L. 99-499, Oct. 17, 1986, 100 Stat. 1613, known as the ``Superfund Amendments and Reauthorization Act of 1986''. For complete classification of this Act to the Code, see Short Title of 1986 Amendment note set out under section 9601 of this title and Tables. Act of March 3, 1851 (46 U.S.C. 183ff), referred to in subsec. (h), is act Mar. 3, 1851, ch. 43, 9 Stat. 635, which was incorporated into the Revised Statutes as R.S. Secs. 4282 to 4287 and 4289, and is classified to sections 182, 183, and 184 to 188 of Title 46, Appendix, Shipping. The Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subsec. (i), is act June 25, 1947, ch. 125, as amended generally by Pub. L. 92-516, Oct. 21, 1972, 86 Stat. 973, which is classified generally to subchapter II (Sec. 136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under section 136 of Title 7 and Tables. The Solid Waste Disposal Act, referred to in subsec. (k)(1), (3), (6)(E)(i), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795. Subtitles C and I of the Solid Waste Disposal Act are classified generally to subchapters III (Sec. 6921 et seq.) and IX (Sec. 6991 et seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. Section 9641 of this title, referred to in subsec. (k), was repealed by Pub. L. 99-499, title V, Sec. 514(b), Oct. 17, 1986, 100 Stat. 1767. Subchapter II of this chapter, referred to in subsec. (k)(4)(A) and (C), was in the original ``title II of this Act'', meaning title II of Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2796, known as the Hazardous Substance Response Revenue Act of 1980, which enacted subchapter II of this chapter and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code. Sections 221 to 223 and 232 of Pub. L. 96-510, which were classified to sections 9631 to 9633 and 9641 of this title, comprising subchapter II of this chapter, were repealed by Pub. L. 99-499, title V, Secs. 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For complete classification of title II to the Code, see Short Title of 1980 Amendment note set out under section 1 of Title 26 and Tables. The Hazardous and Solid Waste Amendments of 1984, referred to in subsec. (k)(6)(A), (E), is Pub. L. 98-616, Nov. 8, 1984, 98 Stat. 3221. For complete classification of this Act to the Code, see Short Title of 1984 Amendment note set out under section 6901 of this title and Tables. The Small Business Act, referred to in subsec. (p)(1), is Pub. L. 85-536, July 18, 1958, 72 Stat. 384, as amended, which is classified generally to chapter 14A (Sec. 631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables. Amendments 2002--Subsecs. (o), (p). Pub. L. 107-118, Sec. 102(a), added subsecs. (o) and (p). Subsec. (q). Pub. L. 107-118, Sec. 221, added subsec. (q). Subsec. (r). Pub. L. 107-118, Sec. 222(b), added subsec. (r). 1996--Subsec. (c)(1)(C). Pub. L. 104-287 substituted ``section 60101(a) of title 49'' for ``the Hazardous Liquid Pipeline Safety Act of 1979''. Subsec. (n). Pub. L. 104-208 added subsec. (n). 1994--Subsec. (c)(1)(C). Pub. L. 103-429 substituted ``hazardous liquid pipeline facility'' for ``pipeline''. 1986--Subsec. (a). Pub. L. 99-514, in penultimate sentence, substituted ``Internal Revenue Code of 1986'' for ``Internal Revenue Code of 1954'', which for purposes of codification was translated as ``title 26'' thus requiring no change in text. Pub. L. 99-499, Sec. 107(b), inserted concluding provisions relating to accrual and rate of interest on amounts recoverable under this section. Subsec. (a)(1). Pub. L. 99-499, Sec. 107(a), struck out ``(otherwise subject to the jurisdiction of the United States)'' after ``vessel''. Subsec. (a)(3). Pub. L. 99-499, Sec. 127(b)(1), inserted ``or incineration vessel'' after ``facility''. Subsec. (a)(4). Pub. L. 99-499, Secs. 107(b), 127(b)(2), 207(c)(1), in introductory provisions, inserted ``, incineration vessels'' after ``vessels'', in subpar. (A), inserted ``or an Indian tribe'' after ``State'', and added subpar. (D). Subsec. (c)(1)(A). Pub. L. 99-499, Sec. 127(b)(3), inserted ``, other than an incineration vessel,'' after ``vessel''. Subsec. (c)(1)(B). Pub. L. 99-499, Sec. 127(b)(4), inserted ``other than an incineration vessel,'' after ``other vessel,''. Subsec. (c)(1)(D). Pub. L. 99-499, Sec. 127(b)(5), inserted ``any incineration vessel or'' before ``any facility''. Subsec. (d). Pub. L. 99-499, Sec. 107(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ``No person shall be liable under this subchapter for damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the national contingency plan or at the direction of an onscene coordinator appointed under such plan, with respect to an incident creating a danger to public health or welfare or the environment as a result of any release of a hazardous substance or the threat thereof. This subsection shall not preclude liability for damages as the result of gross negligence or intentional misconduct on the part of such person. For the purposes of the preceding sentence, reckless, willful, or wanton misconduct shall constitute gross negligence.'' Subsec. (f)(1). Pub. L. 99-499, Sec. 107(d)(1), designated existing provisions as par. (1) and added heading. Pub. L. 99-499, Sec. 207(c)(2)(A), inserted ``and to any Indian tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation'' after third reference to ``State''. Pub. L. 99-499, Sec. 207(c)(2)(B), inserted ``or Indian tribe'' after fourth reference to ``State''. Pub. L. 99-499, Sec. 207(c)(2)(C), inserted in first sentence ``, so long as, in the case of damages to an Indian tribe occurring pursuant to a Federal permit or license, the issuance of that permit or license was not inconsistent with the fiduciary duty of the United States with respect to such Indian tribe''. Pub. L. 99-499, Sec. 107(d)(2), substituted ``Sums recovered by the United States Government as trustee under this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources. Sums recovered by a State as trustee under this subsection shall be available for use only to restore, replace, or acquire the equivalent of such natural resources by the State. The measure of damages in any action under subparagraph (C) of subsection (a) of this section shall not be limited by the sums which can be used to restore or replace such resources. There shall be no double recovery under this chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same release and natural resource'' for ``Sums recovered shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the Federal Government or the State government, but the measure of such damages shall not be limited by the sums which can be used to restore or replace such resources''. Pub. L. 99-499, Sec. 207(c)(2)(D), which directed the insertion of ``or the Indian tribe'' after ``State government'', could not be executed because the prior amendment by section 107(d)(2) of Pub. L. 99- 499, struck out third sentence referring to ``State government''. Subsec. (f)(2). Pub. L. 99-499, Sec. 107(d)(1), added par. (2). Subsec. (g). Pub. L. 99-499, Sec. 107(e), amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: ``Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this section.'' Subsec. (h). Pub. L. 99-499, Sec. 127(e), inserted ``, under maritime tort law,'' after ``with this section'' and inserted ``or the absence of any physical damage to the proprietary interest of the claimant'' before the period at end. Subsec. (i). Pub. L. 99-499, Sec. 207(c)(3), inserted ``or Indian tribe'' after ``State''. Subsec. (j). Pub. L. 99-499, Sec. 207(c)(4), inserted ``or Indian tribe'' after first reference to ``State''. Subsec. (k)(5), (6). Pub. L. 99-499, Sec. 201, added pars. (5) and (6). Subsec. (l), Pub. L. 99-499, Sec. 107(f), added subsec. (l). Subsec. (l)(3). Pub. L. 99-514 substituted ``Internal Revenue Code of 1986'' for ``Internal Revenue Code of 1954'', which for purposes of codification was translated as ``title 26'' thus requiring no change in text. Subsec. (m). Pub. L. 99-499, Sec. 107(f), added subsec. (m). Effective Date of 1996 Amendment Amendment by Pub. L. 104-208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L. 104-208, set out as a note under section 6991b of this title. Effect on Concluded Actions Pub. L. 107-118, title I, Sec. 103, Jan. 11, 2002, 115 Stat. 2360, provided that: ``The amendments made by this title [amending this section and section 9622 of this title] shall not apply to or in any way affect any settlement lodged in, or judgment issued by, a United States District Court, or any administrative settlement or order entered into or issued by the United States or any State, before the date of the enactment of this Act [Jan. 11, 2002].'' Recovery of Costs Pub. L. 104-303, title II, Sec. 209, Oct. 12, 1996, 110 Stat. 3681, provided that: ``Amounts recovered under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9607) for any response action taken by the Secretary in support of the civil works program of the Department of the Army and any other amounts recovered by the Secretary from a contractor, insurer, surety, or other person to reimburse the Department of the Army for any expenditure for environmental response activities in support of the Army civil works program shall be credited to the appropriate trust fund account from which the cost of such response action has been paid or will be charged.'' Coordination of Titles I to IV of Pub. L. 99-499 Any provision of titles I to IV of Pub. L. 99-499, imposing any tax, premium, or fee; establishing any trust fund; or authorizing expenditures from any trust fund, to have no force or effect, see section 531 of Pub. L. 99-499, set out as a note under section 1 of Title 26, Internal Revenue Code. Section Referred to in Other Sections This section is referred to in sections 6924, 6939a, 6991b, 6991c, 9601, 9603, 9604, 9606, 9608, 9611, 9612, 9613, 9614, 9619, 9620, 9622, 9624, 9627, 9628, 9651, 9656, 9658 of this title; title 14 section 692; title 16 sections 1437, 1443; title 26 section 9507. Sec. 9608. Financial responsibility (a) Establishment and maintenance by owner or operator of vessel; amount; failure to obtain certification of compliance (1) The owner or operator of each vessel (except a nonself-propelled barge that does not carry hazardous substances as cargo) over three hundred gross tons that uses any port or place in the United States or the navigable waters or any offshore facility, shall establish and maintain, in accordance with regulations promulgated by the President, evidence of financial responsibility of $300 per gross ton (or for a vessel carrying hazardous substances as cargo, or $5,000,000, whichever is greater) to cover the liability prescribed under paragraph (1) of section 9607(a) of this title. Financial responsibility may be established by any one, or any combination, of the following: insurance, guarantee, surety bond, or qualification as a self-insurer. Any bond filed shall be issued by a bonding company authorized to do business in the United States. In cases where an owner or operator owns, operates, or charters more than one vessel subject to this subsection, evidence of financial responsibility need be established only to meet the maximum liability applicable to the largest of such vessels. (2) The Secretary of the Treasury shall withhold or revoke the clearance required by section 91 of title 46, Appendix, of any vessel subject to this subsection that does not have certification furnished by the President that the financial responsibility provisions of paragraph (1) of this subsection have been complied with. (3) The Secretary of Transportation, in accordance with regulations issued by him, shall (A) deny entry to any port or place in the United States or navigable waters to, and (B) detain at the port or place in the United States from which it is about to depart for any other port or place in the United States, any vessel subject to this subsection that, upon request, does not produce certification furnished by the President that the financial responsibility provisions of paragraph (1) of this subsection have been complied with. (4) In addition to the financial responsibility provisions of paragraph (1) of this subsection, the President shall require additional evidence of financial responsibility for incineration vessels in such amounts, and to cover such liabilities recognized by law, as the President deems appropriate, taking into account the potential risks posed by incineration and transport for incineration, and any other factors deemed relevant. (b) Establishment and maintenance by owner or operator of production, etc., facilities; amount; adjustment; consolidated form of responsibility; coverage of motor carriers (1) Beginning not earlier than five years after December 11, 1980, the President shall promulgate requirements (for facilities in addition to those under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] and other Federal law) that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. Not later than three years after December 11, 1980, the President shall identify those classes for which requirements will be first developed and publish notice of such identification in the Federal Register. Priority in the development of such requirements shall be accorded to those classes of facilities, owners, and operators which the President determines present the highest level of risk of injury. (2) The level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction. To the maximum extent practicable, the President shall cooperate with and seek the advice of the commercial insurance industry in developing financial responsibility requirements. Financial responsibility may be established by any one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer. In promulgating requirements under this section, the President is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the purposes of this chapter. (3) Regulations promulgated under this subsection shall incrementally impose financial responsibility requirements as quickly as can reasonably be achieved but in no event more than 4 years after the date of promulgation. Where possible, the level of financial responsibility which the President believes appropriate as a final requirement shall be achieved through incremental, annual increases in the requirements. (4) Where a facility is owned or operated by more than one person, evidence of financial responsibility covering the facility may be established and maintained by one of the owners or operators, or, in consolidated form, by or on behalf of two or more owners or operators. When evidence of financial responsibility is established in a consolidated form, the proportional share of each participant shall be shown. The evidence shall be accompanied by a statement authorizing the applicant to act for and in behalf of each participant in submitting and maintaining the evidence of financial responsibility. (5) The requirements for evidence of financial responsibility for motor carriers covered by this chapter shall be determined under section 31139 of title 49. (c) Direct action (1) Releases from vessels In the case of a release or threatened release from a vessel, any claim authorized by section 9607 or 9611 of this title may be asserted directly against any guarantor providing evidence of financial responsibility for such vessel under subsection (a) of this section. In defending such a claim, the guarantor may invoke all rights and defenses which would be available to the owner or operator under this subchapter. The guarantor may also invoke the defense that the incident was caused by the willful misconduct of the owner or operator, but the guarantor may not invoke any other defense that the guarantor might have been entitled to invoke in a proceeding brought by the owner or operator against him. (2) Releases from facilities In the case of a release or threatened release from a facility, any claim authorized by section 9607 or 9611 of this title may be asserted directly against any guarantor providing evidence of financial responsibility for such facility under subsection (b) of this section, if the person liable under section 9607 of this title is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code, or if, with reasonable diligence, jurisdiction in the Federal courts cannot be obtained over a person liable under section 9607 of this title who is likely to be solvent at the time of judgment. In the case of any action pursuant to this paragraph, the guarantor shall be entitled to invoke all rights and defenses which would have been available to the person liable under section 9607 of this title if any action had been brought against such person by the claimant and all rights and defenses which would have been available to the guarantor if an action had been brought against the guarantor by such person. (d) Limitation of guarantor liability (1) Total liability The total liability of any guarantor in a direct action suit brought under this section shall be limited to the aggregate amount of the monetary limits of the policy of insurance, guarantee, surety bond, letter of credit, or similar instrument obtained from the guarantor by the person subject to liability under section 9607 of this title for the purpose of satisfying the requirement for evidence of financial responsibility. (2) Other liability Nothing in this subsection shall be construed to limit any other State or Federal statutory, contractual, or common law liability of a guarantor, including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed, interpreted, or applied to diminish the liability of any person under section 9607 of this title or other applicable law. (Pub. L. 96-510, title I, Sec. 108, Dec. 11, 1980, 94 Stat. 2785; Pub. L. 99-499, title I, Secs. 108, 127(c), Oct. 17, 1986, 100 Stat. 1631, 1692.) References in Text The Solid Waste Disposal Act, referred to in subsec. (b)(1), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Solid Waste Disposal Act is classified generally to subchapter III (Sec. 6921 et seq.) of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. The Federal Bankruptcy Code, referred to in subsec. (c)(2), probably means a reference to Title 11, Bankruptcy. Codification In subsec. (b)(5), ``section 31139 of title 49'' substituted for ``section 30 of the Motor Carrier Act of 1980, Public Law 96-296'' on authority of Pub. L. 103-272, Sec. 6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation. Amendments 1986--Subsec. (a)(1). Pub. L. 99-499, Sec. 127(c)(1), inserted ``to cover the liability prescribed under paragraph (1) of section 9607(a) of this title'' after ``whichever is greater)''. Subsec. (a)(4). Pub. L. 99-499, Sec. 127(c)(2), added par. (4). Subsec. (b)(2). Pub. L. 99-499, Sec. 108(a), inserted provisions relating to evidence of financial responsibility and authority of the President regarding establishment of that evidence. Subsec. (b)(3). Pub. L. 99-499, Sec. 108(b), substituted ``as quickly as can reasonably be achieved but in no event more than 4 years'' for ``over a period of not less than three and no more than six years''. Subsec. (c). Pub. L. 99-499, Sec. 108(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ``Any claim authorized by section 9607 or 9611 of this title may be asserted directly against any guarantor providing evidence of financial responsibility as required under this section. In defending such a claim, the guarantor may invoke all rights and defenses which would be available to the owner or operator under this subchapter. The guarantor may also invoke the defense that the incident was caused by the willful misconduct of the owner or operator, but such guarantor may not invoke any other defense that such guarantor might have been entitled to invoke in a proceeding brought by the owner or operator against him.'' Subsec. (d). Pub. L. 99-499, Sec. 108(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ``Any guarantor acting in good faith against which claims under this chapter are asserted as a guarantor shall be liable under section 9607 of this title or section 9612(c) of this title only up to the monetary limits of the policy of insurance or indemnity contract such guarantor has undertaken or of the guaranty of other evidence of financial responsibility furnished under this section, and only to the extent that liability is not excluded by restrictive endorsement: Provided, That this subsection shall not alter the liability of any person under section 9607 of this title.'' Section Referred to in Other Sections This section is referred to in section 9609 of this title. Sec. 9609. Civil penalties and awards (a) Class I administrative penalty (1) Violations A civil penalty of not more than $25,000 per violation may be assessed by the President in the case of any of the following-- (A) A violation of the requirements of section 9603(a) or (b) of this title (relating to notice). (B) A violation of the requirements of section 9603(d)(2) of this title (relating to destruction of records, etc.). (C) A violation of the requirements of section 9608 of this title (relating to financial responsibility, etc.), the regulations issued under section 9608 of this title, or with any denial or detention order under section 9608 of this title. (D) A violation of an order under section 9622(d)(3) of this title (relating to settlement agreements for action under section 9604(b) of this title). (E) Any failure or refusal referred to in section 9622(l) of this title (relating to violations of administrative orders, consent decrees, or agreements under section 9620 of this title). (2) Notice and hearings No civil penalty may be assessed under this subsection unless the person accused of the violation is given notice and opportunity for a hearing with respect to the violation. (3) Determining amount In determining the amount of any penalty assessed pursuant to this subsection, the President shall take into account the nature, circumstances, extent and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, and such other matters as justice may require. (4) Review Any person against whom a civil penalty is assessed under this subsection may obtain review thereof in the appropriate district court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the President. The President shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order or after the appropriate court has entered final judgment in favor of the United States, the President may request the Attorney General of the United States to institute a civil action in an appropriate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the violation and the assessment of the civil penalty on the record. (5) Subpoenas The President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, or documents in connection with hearings under this subsection. In case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the administrative law judge or to appear and produce documents before the administrative law judge, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (b) Class II administrative penalty A civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the President in the case of any of the following-- (1) A violation of the notice requirements of section 9603(a) or (b) of this title. (2) A violation of section 9603(d)(2) of this title (relating to destruction of records, etc.). (3) A violation of the requirements of section 9608 of this title (relating to financial responsibility, etc.), the regulations issued under section 9608 of this title, or with any denial or detention order under section 9608 of this title. (4) A violation of an order under section 9622(d)(3) of this title (relating to settlement agreements for action under section 9604(b) of this title). (5) Any failure or refusal referred to in section 9622(l) of this title (relating to violations of administrative orders, consent decrees, or agreements under section 9620 of this title). In the case of a second or subsequent violation the amount of such penalty may be not more than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and opportunity for hearing on the record in accordance with section 554 of title 5. In any proceeding for the assessment of a civil penalty under this subsection the President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents and may promulgate rules for discovery procedures. Any person who requested a hearing with respect to a civil penalty under this subsection and who is aggrieved by an order assessing the civil penalty may file a petition for judicial review of such order with the United States Court of Appeals for the District of Columbia Circuit or for any other circuit in which such person resides or transacts business. Such a petition may only be filed within the 30- day period beginning on the date the order making such assessment was issued. (c) Judicial assessment The President may bring an action in the United States district court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation (or failure or refusal) continues in the case of any of the following-- (1) A violation of the notice requirements of section 9603(a) or (b) of this title. (2) A violation of section 9603(d)(2) of this title (relating to destruction of records, etc.). (3) A violation of the requirements of section 9608 of this title (relating to financial responsibility, etc.), the regulations issued under section 9608 of this title, or with any denial or detention order under section 9608 of this title. (4) A violation of an order under section 9622(d)(3) of this title (relating to settlement agreements for action under section 9604(b) of this title). (5) Any failure or refusal referred to in section 9622(l) of this title (relating to violations of administrative orders, consent decrees, or agreements under section 9620 of this title). In the case of a second or subsequent violation (or failure or refusal), the amount of such penalty may be not more than $75,000 for each day during which the violation (or failure or refusal) continues. For additional provisions providing for judicial assessment of civil penalties for failure to comply with a request or order under section 9604(e) of this title (relating to information gathering and access authorities), see section 9604(e) of this title. (d) Awards The President may pay an award of up to $10,000 to any individual who provides information leading to the arrest and conviction of any person for a violation subject to a criminal penalty under this chapter, including any violation of section 9603 of this title and any other violation referred to in this section. The President shall, by regulation, prescribe criteria for such an award and may pay any award under this subsection from the Fund, as provided in section 9611 of this title. (e) Procurement procedures Notwithstanding any other provision of law, any executive agency may use competitive procedures or procedures other than competitive procedures to procure the services of experts for use in preparing or prosecuting a civil or criminal action under this chapter, whether or not the expert is expected to testify at trial. The executive agency need not provide any written justification for the use of procedures other than competitive procedures when procuring such expert services under this chapter and need not furnish for publication in the Commerce Business Daily or otherwise any notice of solicitation or synopsis with respect to such procurement. (f) Savings clause Action taken by the President pursuant to this section shall not affect or limit the President's authority to enforce any provisions of this chapter. (Pub. L. 96-510, title I, Sec. 109, Dec. 11, 1980, 94 Stat. 2787; Pub. L. 99-499, title I, Sec. 109(c), Oct. 17, 1986, 100 Stat. 1633.) Amendments 1986--Pub. L. 99-499 amended section generally. Prior to amendment, section read as follows: ``Any person who, after notice and an opportunity for a hearing, is found to have failed to comply with the requirements of section 9608 of this title, the regulations issued thereunder, or with any denial or detention order shall be liable to the United States for a civil penalty, not to exceed $10,000 for each day of violation.'' Coordination of Titles I to IV of Pub. L. 99-499 Any provision of titles I to IV of Pub. L. 99-499, imposing any tax, premium, or fee; establishing any trust fund; or authorizing expenditures from any trust fund, to have no force or effect, see section 531 of Pub. L. 99-499, set out as a note under section 1 of Title 26, Internal Revenue Code. Section Referred to in Other Sections This section is referred to in sections 9611, 9622 of this title. Sec. 9610. Employee protection (a) Activities of employee subject to protection No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has provided information to a State or to the Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter. (b) Administrative grievance procedure in cases of alleged violations Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination. A copy of the application shall be sent to such person, who shall be the respondent. Upon receipt of such application, the Secretary of Labor shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to such review to enable the parties to present information relating to such alleged violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of title 5. Upon receiving the report of such investigation, the Secretary of Labor shall make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein and his findings, requiring the party committing such violation to take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee or representative of employees to his former position with compensation. If he finds that there was no such violation, he shall issue an order denying the application. Such order issued by the Secretary of Labor under this subparagraph shall be subject to judicial review in the same manner as orders and decisions are subject to judicial review under this chapter. (c) Assessment of costs and expenses against violator subsequent to issuance of order of abatement Whenever an order is issued under this section to abate such violation, at the request of the applicant a sum equal to the aggregate amount of all costs and expenses (including the attorney's fees) determined by the Secretary of Labor to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation. (d) Defenses This section shall have no application to any employee who acting without discretion from his employer (or his agent) deliberately violates any requirement of this chapter. (e) Presidential evaluations of potential loss of shifts of employment resulting from administration or enforcement of provisions; investigations; procedures applicable, etc. The President shall conduct continuing evaluations of potential loss of shifts of employment which may result from the administration or enforcement of the provisions of this chapter, including, where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement. Any employee who is discharged, or laid off, threatened with discharge or layoff, or otherwise discriminated against by any person because of the alleged results of such administration or enforcement, or any representative of such employee, may request the President to conduct a full investigation of the matter and, at the request of any party, shall hold public hearings, require the parties, including the employer involved, to present information relating to the actual or potential effect of such administration or enforcement on employment and any alleged discharge, layoff, or other discrimination, and the detailed reasons or justification therefore.\1\ Any such hearing shall be of record and shall be subject to section 554 of title 5. Upon receiving the report of such investigation, the President shall make findings of fact as to the effect of such administration or enforcement on employment and on the alleged discharge, layoff, or discrimination and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public. Nothing in this subsection shall be construed to require or authorize the President or any State to modify or withdraw any action, standard, limitation, or any other requirement of this chapter. --------------------------------------------------------------------------- \1\ So in original. --------------------------------------------------------------------------- (Pub. L. 96-510, title I, Sec. 110, Dec. 11, 1980, 94 Stat. 2787.)

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