extension of credit
(20) (A) The term “owner or operator” means (i) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, (ii) in the case of an onshore facility or an offshore facility, any person owning or operating such facility, and (iii) in the case of any facility, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of State or local government, any person who owned, operated, or otherwise controlled activities at such facility immediately beforehand. Such term does not include a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility. (B) In the case of a hazardous substance which has been accepted for transportation by a common or contract carrier and except as provided in section 9607(a)(3) or (4) of this title, (i) the term “owner or operator” shall mean such common carrier or other bona fide for hire carrier acting as an independent contractor during such transportation, (ii) the shipper of such hazardous substance shall not be considered to have caused or contributed to any release during such transportation which resulted solely from circumstances or conditions beyond his control. (C) In the case of a hazardous substance which has been delivered by a common or contract carrier to a disposal or treatment facility and except as provided in section 9607(a)(3) or (4) of this title, (i) the term “owner or operator” shall not include such common or contract carrier, and (ii) such common or contract carrier shall not be considered to have caused or contributed to any release at such disposal or treatment facility resulting from circumstances or conditions beyond its control. (D) The term “owner or operator” does not include a unit of State or local government which acquired ownership or control through seizure or otherwise in connection with law enforcement activity, or through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title . (E) Exclusion of certain alaska native villages and native corporations.— (i) In general .— The term “owner or operator” does not include, with respect to a facility conveyed to a Native village or Native Corporation (as those terms are defined in section 3 of the Alaska Native Claims Settlement Act [ 43 U.S.C. 1602 ]) under the Alaska Native Claims Settlement Act [ 43 U.S.C. 1601 et seq.]— (I) the Native village or Native Corporation that received the facility from the United States Government; or (II) a successor in interest to which the facility was conveyed under section 14(c) of such Act [ 43 U.S.C. 1613(c) ]. (ii) Limitation .— The exclusion provided under this subparagraph shall not apply to any entity described in clause (i) that causes or contributes to a release or threatened release of a hazardous substance from the facility conveyed as described in such clause. (F) Exclusion of lenders not participants in management.— (i) Indicia of ownership to protect security .— The term “owner or operator” does not include a person that is a lender that, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect the security interest of the person in the vessel or facility. (ii) Foreclosure .— The term “owner or operator” does not include a person that is a lender that did not participate in management of a vessel or facility prior to foreclosure, notwithstanding that the person— (I) forecloses on the vessel or facility; and (II) after foreclosure, sells, re-leases (in the case of a lease finance transaction), or liquidates the vessel or facility, maintains business activities, winds up operations, undertakes a response action under section 9607(d)(1) of this title or under the direction 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 practicable, commercially reasonable time, on commercially reasonable terms, taking into account market conditions and legal and regulatory requirements. (G) Participation in management .— For purposes of subparagraph (F)— (i) the term “participate in management”— (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; (ii) a person that is a lender and that holds indicia of ownership primarily to protect a security interest in a vessel or facility shall be considered to participate in management only if, while the borrower is still in possession of the vessel or facility encumbered by the security interest, the person— (I) exercises decisionmaking control over the environmental compliance related to the vessel or facility, such that the person has undertaken responsibility for the hazardous substance handling or disposal practices related to the vessel or facility; or (II) exercises control at a level comparable to that of a manager of the vessel or facility, such that the person has assumed or manifested responsibility— (aa) for the overall management of the vessel or facility encompassing day-to-day decisionmaking with respect to environmental compliance; or (bb) over all or substantially all of the operational functions (as distinguished from financial or administrative functions) of the vessel or facility other than the function of environmental compliance; (iii) the term “participate in management” does not include performing an act or failing to act prior to the time at which a security interest is created in a vessel or facility; and (iv) the term “participate in management” does not include— (I) holding a security interest or abandoning or releasing a security interest; (II) 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; (III) monitoring or enforcing the terms and conditions of the extension of credit or security interest; (IV) monitoring or undertaking 1 or more inspections of the vessel or facility; (V) requiring a response action or other lawful means of addressing the release or threatened release of a hazardous substance in connection with the vessel or facility prior to, during, or on the expiration of the term of the extension of credit; (VI) providing financial or other advice or counseling in an effort to mitigate, prevent, or cure default or diminution in the value of the vessel or facility; (VII) restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of the extension of credit or security interest, exercising forbearance; (VIII) exercising other remedies that may be available under applicable law for the breach of a term or condition of the extension of credit or security agreement; or (IX) conducting a response action under section 9607(d) of this title or under the direction of an on-scene coordinator appointed under the National Contingency Plan, if the actions do not rise to the level of participating in management (within the meaning of clauses (i) and (ii)). (H) Other terms .— As used in this chapter: (i) Extension of credit .— The term “extension of credit” includes a lease finance transaction— (I) in which the lessor does not initially select the leased vessel or facility and does not during the lease term control the daily operations or maintenance of the vessel or facility; or (II) that conforms with regulations issued by the appropriate Federal banking agency or the appropriate State bank supervisor (as those terms are defined in section 1813 of title 12 ) or with regulations issued by the National Credit Union Administration Board, as appropriate. (ii) Financial or administrative function .— The term “financial or administrative function” includes a function such as that of a credit manager, accounts payable officer, accounts receivable officer, personnel manager, comptroller, or chief financial officer, or a similar function. (iii) Foreclosure; foreclose .— The terms “foreclosure” and “foreclose” mean, respectively, acquiring, and to acquire, a vessel or facility through— (I) (aa) purchase at sale under a judgment or decree, power of sale, or nonjudicial foreclosure sale; (bb) a deed in lieu of foreclosure, or similar conveyance from a trustee; or (cc) repossession, if the vessel or facility was security for an extension of credit previously contracted; (II) conveyance pursuant to an extension of credit previously contracted, including the termination of a lease agreement; or (III) any other formal or informal manner by which the person acquires, for subsequent disposition, title to or possession of a vessel or facility in order to protect the security interest of the person. (iv) Lender .— The term “lender” means— (I) an insured depository institution (as defined in section 1813 of title 12 ); (II) an insured credit union (as defined in section 1752 of title 12 ); (III) a bank or association chartered under the Farm Credit Act of 1971 ( 12 U.S.C. 2001 et seq.); (IV) a leasing or trust company that is an affiliate of an insured depository institution; (V) any person (including a successor or assignee of any such person) that makes a bona fide extension of credit to or takes or acquires a security interest from a nonaffiliated person; (VI) the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Agricultural Mortgage Corporation, or any other entity that in a bona fide manner buys or sells loans or interests in loans; (VII) a person that insures or guarantees against a default in the repayment of an extension of credit, or acts as a surety with respect to an extension of credit, to a nonaffiliated person; and (VIII) a person that provides title insurance and that acquires a vessel or facility as a result of assignment or conveyance in the course of underwriting claims and claims settlement. (v) Operational function .— The term “operational function” includes a function such as that of a facility or plant manager, operations manager, chief operating officer, or chief executive officer. (vi) Security interest .— The term “security interest” includes a right under a mortgage, deed of trust, assignment, judgment lien, pledge, security agreement, factoring agreement, or lease and any other right accruing to a person to secure the repayment of money, the performance of a duty, or any other obligation by a nonaffiliated person.