PUBLIC LAW 104-208—SEPT. 30, 1996 110 STAT. 3009-464 engaged in, actively carrying on a trade or business for profit, unless the trust or other fiduciary estate was created as part of, or to facilitate, 1 or more estate plans or because of the incapacity of a natural person; or "(11) a person that acquires ownership or control of a vessel or facility with the objective purpose of avoiding liability of the person or of any other person. "(B) FIDUCIARY CAPACITY. —The term 'fiduciary capacity means the capacity of a person in holding title to a vessel or facility, or otherwise having control of or an interest in the vessel or facility, pursuant to the exercise of the responsibilities of the person as a fiduciary. "(6) SAVINGS CLAUSE. —Nothing in this subsection— "(A) affects the rights or immunities or other defenses that are available under this Act or other law that is applicable to a person subject to this subsection; or "(B) creates any liability for a person or a private right of action against a fiduciary or any other person. "(7) No EFFECT ON CERTAIN PERSONS.— Nothing in this subsection applies to a person if the person— "(A)(i) acts in a capacity other than that of a fiduciary or in a beneficiary capacity; and "(ii) in that capacity, directly or indirectly benefits from a trust or fiduciary relationship; or "(B)(i) is a beneficiary and a fiduciary with respect to the same fiduciary estate; and "(ii) as a fiduciary, receives benefits that exceed customary or reasonable compensation, and incidental benefits, permitted under other applicable law. "(8) LIMITATION.— Th is subsection does not preclude a claim under this Act against— "(A) the assets of the estate or trust administered by the fiduciary; or "(B) a nonemployee agent or independent contractor retained by a fiduciary.". (b) DEFINITION OF OWNER OR OPERATOR. — Section 101(20) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(20)) is amended by adding at the end the following: "(E) 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 L 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.
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