Page:United States Statutes at Large Volume 118.djvu/1101

 118 STAT. 1071 PUBLIC LAW 108–293—AUG. 9, 2004 Control Act (33 U.S.C. 1321(c)) or under the direc tion of an on scene coordinator appointed under the National Contingency Plan, with respect to the vessel or facility, or takes any other measure to preserve, protect, or prepare the vessel or facility prior to sale or disposition, if the person seeks to sell, re lease (in the case of a lease finance transaction), or otherwise divest the person of the vessel or facility at the earliest prac ticable, commercially reasonable time, on commercially reasonable terms, taking into account market condi tions and legal and regulatory requirements;’’. (b) OTHER DEFINITIONS.—Section 1001 of the Oil Pollution Act of 1990 (33 U.S.C. 2701) is amended by striking ‘‘and’’ after the semicolon at the end of paragraph (36), by striking the period at the end of paragraph (37) and inserting a semicolon, and by adding at the end the following: ‘‘(38) ‘participate in management’— ‘‘(A)(i) means actually participating in the management or operational affairs of a vessel or facility; and ‘‘(ii) does not include merely having the capacity to influence, or the unexercised right to control, vessel or facility operations; and ‘‘(B) does not include— ‘‘(i) performing an act or failing to act prior to the time at which a security interest is created in a vessel or facility; ‘‘(ii) holding a security interest or abandoning or releasing a security interest; ‘‘(iii) including in the terms of an extension of credit, or in a contract or security agreement relating to the extension, a covenant, warranty, or other term or condition that relates to environmental compliance; ‘‘(iv) monitoring or enforcing the terms and condi tions of the extension of credit or security interest; ‘‘(v) monitoring or undertaking one or more inspec tions of the vessel or facility; ‘‘(vi) requiring a removal action or other lawful means of addressing a discharge or substantial threat of a discharge of oil in connection with the vessel or facility prior to, during, or on the expiration of the term of the extension of credit; ‘‘(vii) providing financial or other advice or coun seling in an effort to mitigate, prevent, or cure default or diminution in the value of the vessel or facility; ‘‘(viii) restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of the exten sion of credit or security interest, exercising forbear ance; ‘‘(ix) exercising other remedies that may be avail able under applicable law for the breach of a term or condition of the extension of credit or security agree ment; or ‘‘(x) conducting a removal action under 311(c) of the Federal Water Pollution Control Act (33 U.S.C. 1321(c)) or under the direction of an on scene coordi nator appointed under the National Contingency Plan,

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