[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1062-1189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-225]
[[Page Unknown]]
[Federal Register: January 7, 1994]
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Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
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15 CFR Part 990
Natural Resource Damage Assessments; Proposed Rules
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 990
RIN 0648-AE13
[No. P20105-3196]
Natural Resource Damage Assessments
AGENCY: National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Section 1006(e)(1) requires the President, acting through the
Under Secretary of Commerce for Oceans and Atmosphere, to promulgate
regulations for the assessments of natural resource damages resulting
from discharges of oil. By today's Notice, NOAA is seeking comments
concerning the proposed rule. The proposed rule is for the use of
authorized federal, state, and tribal officials referred to in the Oil
Pollution Act of 1990 (OPA) as ``trustees,'' for the assessment of
damages to natural resources and/or services from a discharge of oil.
Natural resource damage assessments are not identical to response or
remedial actions addressed by the larger statutory scheme of OPA.
Assessments are not intended to replace response actions, which have as
their primary purpose the protection of human health, but to supplement
them, by providing a process for determining proper compensation to the
public for injury to natural resources.
DATES: Written comments should be received no later than April 7, 1994.
ADDRESSES: Written comments are to be submitted to Linda Burlington,
Project Manager, or Eli Reinharz, Assistant Project Manager, Damage
Assessment Regulations Team (DART), c/o NOAA/DAC, 1305 East-West
Highway, SSMC #4, 10th Floor, Workstation #10218, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Linda Burlington or Eli Reinharz,
Office of General Counsel, DART, telephone (202) 606-8000, FAX (202)
606-4900.
SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA), 33
U.S.C. 2701 et seq., provides for the prevention of, liability for,
removal of, and compensation for the discharge, or substantial threat
of discharge, of oil into or upon the navigable waters of the United
States, adjoining shorelines, or the Exclusive Economic Zone. Section
1006(e) requires the President, acting through the Under Secretary of
Commerce for Oceans and Atmosphere, to develop regulations establishing
procedures for natural resource trustees to use in the assessment of
damages for injury to, destruction of, loss of, or loss of use of
natural resources covered by OPA. Section 1006(b) provides for the
designation of federal, state, Indian tribal, and foreign natural
resource trustees to determine resource injuries, assess natural
resource damages (including the reasonable costs of assessing damages),
present a claim, recover damages, and develop and implement a plan for
the restoration, rehabilitation, replacement, or acquisition of the
equivalent of the injured natural resources under their trusteeship.
NOAA has published eight Federal Register Notices, 55 FR 53478
(December 28, 1990), 56 FR 8307 (February 28, 1991), 57 FR 8964 (March
13, 1992), 57 FR 14524 (April 21, 1992), 57 FR 23067 (June 1, 1992), 57
FR 44347 (September 25, 1992), 57 FR 56292 (November 27, 1992), and 58
FR 4601 (January 15, 1993), requesting information and comments on
approaches to developing damage assessment procedures. NOAA conducted a
public meeting on March 20, 1991, for additional public participation
into the process and held four regional workshops during 1991 in
Rockville, Maryland; Houston, Texas; San Francisco, California; and
Chicago, Illinois, to learn of regional concerns in coastal and inland
waters. One workshop held in Alexandria, Virginia, in November, 1991,
provided a forum for early discussions of various economic issues
likely to be raised during the damage assessment rulemaking process. In
addition, on August 12, 1992, NOAA held a public hearing on the issue
of whether constructed market methodologies, including Contingent
Valuation (CV), can be used to calculate reliably passive use values
for natural resources, and if so, under what circumstances and under
what guidance. On January 15, 1993, at 58 FR 4601, NOAA published in
full the report of the panel commissioned by NOAA to evaluate the
reliability of CV in calculating passive use values for natural
resources.
The proposed rule summarizes the written comments received by the
agency and issues raised during the public meetings and workshops,
responds to those comments, and contains proposed regulatory language
on the various issues raised. Many of the specific comments summarized
in the proposed rule refer to the status report published by NOAA in
the March 13, 1992, Federal Register notice.
This preamble is organized in the following manner: the
Introduction gives an overview of the proposed rule and is followed by
a discussion of each of the subparts of the proposed rule. Subpart A
deals with the optional prespill planning for a damage assessment and
other general topics, subpart B describes the Preassessment Phase, and
subparts C, D, E, F, and G contain the description of the Assessment
Phase and the range of assessment procedures. Subpart H describes the
Post-assessment Phase.
INTRODUCTION
Overview of Process
I. General
The proposed rule simplifies the task of the natural resource
trustee(s) by providing a flexible and logical process for assessing
natural resource damages resulting from a discharge of oil. To assist
the trustee(s) in conducting damage assessments, the proposed rule
defines a number of key statutory terms relevant to damage assessment
and identifies a number of damage assessment techniques that NOAA has
determined are the best available. In addition, the proposed rule is
intended to facilitate public and responsible party (RP) involvement in
the restoration of injured natural resources and/or services by
creating an open, administrative process for selection of restoration
measures. The proposed rule promotes a cooperative approach to
resolution of natural resource damage cases by providing greater
certainty regarding the measure of damages and the process by which
damages will be determined.
The proposed rule is intended to provide the trustee(s) with
maximum flexibility in conducting damage assessments. It is important
to bear in mind that the proposed rule is optional. The trustee(s) is
free to depart from the proposed rule, however, section 1006(e)(2) of
OPA provides that damage assessments conducted pursuant to this
proposed rule shall have a rebuttable presumption of accuracy in any
administrative or judicial proceedings under OPA. Also, this proposed
rule makes possible judicial review on the administrative record for
the Assessment/Restoration Planning process. The administrative record
is the repository of all the information and data considered by the
trustee(s) during the assessment. The trustee(s) may use damage
assessment techniques outside the scope of this proposed rule at the
cost of assuming the burden of proof with respect to those components
of the damage assessment.
The nature and scope of this proposed rule can best be understood
in the context of the overall statutory scheme for natural resource
damage cases. The elements of liability under sections 1002(a) and
(b)(2) of OPA are simple and straightforward: (1) A discharge (2) of
oil (3) from a vessel or facility (4) into or upon navigable waters,
adjoining shorelines or the Exclusive Economic Zone, (5) which results
in injury to natural resources and/or services. Thus, liability is
established when there is some injury to a natural resource and/or
service resulting from a discharge of oil. The damage assessment is
designed to determine and quantify injury, the appropriate restoration
approach, and the damages resulting from the injury.
The damage assessment process described in this proposed rule has
three major phases: (1) The Preassessment Phase; (2) the Assessment
Phase; and (3) the Post-Assessment Phase (See Figure 1).
BILLING CODE 3510-12-P
TP07JA94.000
BILLING CODE 3510-12-C
Prespill planning involves planning and coordination among trustees,
coordination with the Area Committees, potential RPs, and the public to
ensure a cost-effective and coordinated assessment once a discharge of
oil occurs. Thus, it is not part of an incident-specific assessment,
but an important part of preparation by the trustee(s) for fulfilling
their natural resource damage assessment responsibilities during spill
response. The Preassessment Phase involves two basic decisions: The
decision whether to proceed with the Preassessment Phase and the
decision as to the scope of the assessment to conduct, if any. The
Assessment Phase offers a choice involving four types of assessment
procedures: compensation formulas, computer models, expedited
procedures, and comprehensive procedures. The Post-Assessment Phase
gives guidance on using the recoveries effectively and efficiently to
bring about the recovery of injured natural resources and/or services.
NOAA is also developing detailed guidance on various aspects of
damage assessment. It is anticipated that guidance documents will soon
be available on: Preassessment, injury determination and
quantification, and restoration. NOAA will publish a Notice of
Availability when these documents are ready for the public. These
guidance documents are being prepared in conjunction with this
rulemaking to provide more specific technical information to those
performing assessments and restorations under OPA and other interested
members of the public. These documents will not constitute regulatory
guidance nor must they be followed to obtain the rebuttable
presumption. The documents, in their final form, will be made available
through a public information distribution service.
II. Prespill Planning
Prespill planning and coordination by various parties are likely to
be involved in damage assessments under OPA. Prespill activities are a
crucial component of trustee responsibilities. Immediately after an oil
discharge, it is extremely difficult to determine the availability of
baseline scientific data, plan additional data collection, and
coordinate the damage assessment approach of the trustee(s). Thus,
baseline data collection and planning are important to a successful
assessment.
The proposed rule strongly encourages natural resource trustees to
coordinate among themselves, the response agencies, the public, and any
potential RPs interested in developing contingency plans for a damage
assessment. These prespill plans can consist of products of previous
planning efforts, or can be management plans modified or supplemented
to cover damage assessment issues.
In prespill planning, the trustee(s) should anticipate what may be
required to document the damage assessment. The documentation
requirements in the proposed rule are drawn largely from the comparable
process set out in the National Contingency Plan (NCP) for selection of
remedies at hazardous waste sites. The trustee(s) should have the
procedures in place to begin the assessment and restoration planning
process when a discharge occurs.
III. Preassessment Phase
A. Introduction
A natural resource damage assessment begins with the Preassessment
Phase, which consists of two basic components: (1) Preassessment
Determination and (2) Damage Assessment Determination. The
Preassessment Determination requires a decision by the trustee(s)
whether to initiate the Preassessment Phase. During the Preassessment
Phase, the trustee(s) may conduct limited data collection and analysis
(data collection). At the end of the Preassessment Phase, the
trustee(s) decides whether to proceed with a damage assessment in the
Damage Assessment Determination.
The Preassessment Phase also identifies the conditions for
notification, coordination, estimation of assessment costs, reporting,
and emergency restoration. Guidance on conducting the Preassessment
Phase will be available in the Preassessment Phase Guidance Document.
B. Relationship of Preassessment Activities to Response Activities
It is very probable that the Preassessment Phase will be conducted
simultaneously with the On-Scene Coordinator (OSC)-coordinated response
activities. Any activities conducted in the discharge area should be
coordinated with the OSC or designee, especially with regards to damage
assessment trustee(s) requests for response operations resources. The
trustee(s) at the discharge site is likely to be participating as a
part of the OSC's response organization and member of the damage
assessment team. The response activities are under the jurisdiction of
the OSC, whereas the damage assessment activities are under the
jurisdiction of the trustee(s).
C. Preassessment Process
1. Preassessment Determination. After notification, the trustee(s)
should determine if conducting the Preassessment Phase is justified.
The Preassessment Determination is largely a ``desktop'' exercise based
upon readily available information on the discharge and environmental
setting.
Based on that information, the trustee(s) should determine if: (1)
The discharge of oil meets the exclusionary conditions as set forth in
section 1002(c) of OPA; (2) the trustee(s) has authority under OPA to
assert damage claims for natural resources and/or services that may be
adversely affected by the discharge of oil; and (3) there is a
reasonable probability that the trustee(s) can make a successful damage
claim based on the scientific, economic, and legal merits of the case,
i.e., potential for injury resulting from the discharge and successful
and meaningful restoration and/or compensation. If these conditions are
met, the trustee(s) may proceed with the Preassessment Phase.
2. Damage Assessment Determination. In the Damage Assessment
Determination, the trustee(s) decides which, if any, damage assessment
procedure to conduct. Further, damage assessment is appropriate for
those injured natural resources and/or services that can be restored or
for which damages can be estimated. As part of the Damage Assessment
Determination, the trustee(s) should make a preliminary determination
regarding the applicability of the damage assessment procedures. These
decisions should be documented in the Preassessment Phase Report.
The trustee(s) has a great deal of flexibility in selecting
appropriate damage assessment methods. If at any time during the
Preassessment Phase the trustee(s) determines sufficient information
was collected in order to select a damage assessment procedure, the
trustee(s) may complete the preassessment and move into the Assessment
Phase. The proposed rule provides factors for the trustee(s) to
consider in the selection of appropriate assessment procedures.
3. Preassessment Phase Report. At the conclusion of the
Preassessment Phase, the trustee(s) should document briefly:
preassessment actions, such as data collection and emergency
restoration; estimated costs directly related to those actions; and
decisions to proceed with preassessment and damage assessment. The
report should provide sufficient information for input in the damage
assessment/restoration process.
If no further damage assessment actions are taken, the
Preassessment Phase Report becomes the Report of Assessment. If damage
assessment actions are undertaken, the Preassessment Phase Report
becomes part of the Report of Assessment. If the trustee(s) decides to
proceed with an assessment, the trustee(s) should develop a Draft
Assessment/Restoration Plan (DARP) as a guide to how the damage
assessment will be conducted.
D. Data Collection and Analysis
The primary reason for data collection and analysis (data
collection) in the Preassessment Phase is to ensure that there is
sufficient information to evaluate the risk to natural resources and/or
services resulting from the exposure to oil. The scope of the
trustee's(s') data collection should be reasonable in light of the
characteristics of the discharge and natural resources and/or services
potentially affected by the discharge. However, the trustee(s) and
RP(s) may agree to undertake limited injury determination studies to
verify that no significant injury to natural resources and/or services
has resulted from the discharge, although costs for such undertakings
are not recoverable.
When reasonably practicable, the trustee(s) should collect the
following types of information during the Preassessment Phase: (1) Data
that are necessary to make a determination to proceed with the
Preassessment Phase; (2) ephemeral or perishable data that may be lost
if not collected immediately; and (3) necessary data that serves as the
basis for the selected damage assessment procedure, the absence for
which data would prevent the trustee(s) from proceeding with the damage
assessment determination of Sec. 990.23 (i.e., input into the
compensation formulas of Type A models, or the study design for the
Expedited Damage Assessment (EDA) or Comprehensive Damage Assessment
(CDA)).
E. Emergency Restoration
At any time after the discharge, the trustee(s), with the approval
of the OSC, may decide to conduct emergency restoration as long as it
does not interfere with response actions. These actions are designed to
protect natural resources and/or services where there is insufficient
time to await completion of the entire damage assessment/restoration
planning process.
Emergency restoration is not subject to required public review and
comment. Consequently, the proposed rule requires the trustee(s) to
document that any actions taken under this authority are necessary and,
to the extent reasonably practicable, cost-effective.
IV. Assessment Phase
A. General
Through this proposed rule, NOAA is providing the trustee(s) with a
variety of assessment procedures in recognition of the need for
flexibility in dealing with situations that, by their nature, are
incident-specific. The trustee(s) can choose among the various
procedures based upon the circumstances of the discharge or natural
resource and/or service involved.
In the selection process, the trustee(s) should first consider the
simplified procedures, either the compensation formula, the Type A
model, or Expedited Damage Assessment (EDA), before a Comprehensive
Damage Assessment (CDA). The RP(s) may request that the trustee(s) use
a more complex assessment procedure than that chosen by the trustee(s),
only if the RP(s) provides the money up front to fund such an effort,
and it is understood that the trustee(s) has the ultimate
responsibility for the design and management of that study. The
trustee(s) has the option to decline to conduct the more complex
assessment procedure, but must justify and document that decision in
the Report of Assessment.
B. Draft Assessment/Restoration Plan (DARP)
The proposed rule requires that the trustee(s) prepare a DARP for
all assessments. The DARP is the document that gives the trustee(s) the
opportunity to present for comment the chosen approach for restoration,
replacement, rehabilitation, or acquisition of the equivalent of the
injured resources and services. The DARP will also give enough
information about the injury determination and quantification to allow
for a meaningful review of the trustee's(s') determination of the
restoration approach. The DARP will also contain the estimated costs of
implementing the chosen approach. The DARP also may, at the trustee's
discretion, contain a list of the planned valuation studies.
After the DARP has been reviewed by the public, the trustee(s) will
then modify it as appropriate. The DARP then becomes the Report of
Assessment, which is the final description of the restoration approach
selected by the trustee(s) and the estimated costs of implementing that
approach.
Although each assessment will be incident-specific, many elements
of a DARP will be essentially the same. At a minimum, the DARP should
identify the following: (1) The objectives of the trustee(s); (2) how
the trustee(s) plans to accomplish the objectives; and (3) whether the
planned actions are conducted in a cost-effective manner to the extent
reasonably practicable. It is expected that the DARP will address
issues such as study design, data collection and analysis, quality
assurance (QA), data management, and guidelines for conducting the
overall assessment/restoration process and individual studies within
that process. The proposed rule addresses these common components as
they are addressed through the DARP. Not all of these elements will be
required in every DARP, particularly in a compensation formula or Type
A assessment.
As mentioned throughout this preamble and proposed rule, the
trustee(s) is strongly encouraged to develop prespill plans for
conducting an assessment. Those prespill plans could even identify the
type of assessment procedure conducted under certain discharge
scenarios. When the trustee(s) determines that the assessment will be
conducted pursuant to prespill plans, the DARP shall document that
decision and be consistent with the actions identified in the prespill
plan to the maximum extent practicable. If the circumstances of the
incident are such that the trustee(s) determines that the assessment
will be conducted on an incident-specific manner rather than pursuant
to any prespill plans, the DARP shall document that decision.
The trustee(s) will prepare a DARP following the determination to
proceed with further assessment activities. The DARP should be based
upon the findings of the Preassessment Phase, identify the assessment
procedures the trustee(s) is planning to use, describe proposed studies
relating to injury determination and quantification, if any, and
describe proposed actions relating to the determination of the type and
nature of restoration actions, if any, subject to the prespill plans.
Although the trustee(s) should view the development of the DARP as one
process, it may be reasonable to develop the restoration component
separately and at a later date than the assessment component.
The development of a DARP will assist the trustee(s) in conducting
an efficient assessment and, subject to prespill plans, be available
for public review. The scope of the public notice and review should be
comparable to the scope of the extent of the assessment area and
expected effects. The DARP (including comments and responses) is to be
included in the administrative record accompanying the assessment. The
DARP will also ultimately become the Report of Assessment. The
trustee(s) is not required under the proposed rule to provide a review
and comment period of any specific injury determination/quantification
studies, only general notification of the nature and type of assessment
being conducted.
The trustee(s) must review and respond to public comments during
preparation of the restoration component of the DARP. In addressing
comments received concerning the proposed restoration approach, it is
not necessary for the trustee(s) to respond to each comment received.
Comments may be summarized in like-subject areas and responded to only
once.
The proposed rule allows the trustee(s) to modify the restoration
component of the DARP, if necessary. Public review is required for
modifications deemed significant by the trustee(s). Large discharges or
discharges with extensive environmental effects may require the
trustee(s) to develop multi-year plans. Again, modifications of the
annual restoration plans that are significantly different from the
preceding year should be provided for public review.
C. Compensation Formulas
The estuarine/marine and inland waters compensation formulas
described in this proposed rule would be applicable to the vast
majority of oil discharges. An analysis of reported coastal discharges
of oil from 1973-1990 shows that 99.8% of the discharges were less than
50,000 gallons and 99% were less than 10,000 gallons. Compensation
formulas could be used for most of these relatively small discharges,
particularly for those that occur in areas where it would be difficult
to ascertain precise environmental effects, e.g., small discharges in
open water or in areas that are subject to frequent discharges.
These formulas allow an estimate of damages per gallon taking into
account average restoration costs, plus average lost direct use values
pending restoration. The formulas assume various levels of natural
resource effects likely to result from the discharge of oil. These
assumptions consider the amount and type of oil discharged and region
and habitat type in which the discharge occurs. The formulas are
applicable to a wide range of the most commonly discharged oil
products. This approach allows both a national consistency and regional
specificity.
D. Computer Models
NOAA is proposing that the natural resource trustee(s) may use the
Natural Resource Damage Assessment Model for Coastal and Marine
Environments, Version 1.2, known as the Type A model, developed by the
U.S. Department of the Interior (DOI), for damage assessments under
OPA. The Type A model is described at 43 CFR Part 11, subpart D. The
Type A model may be used when the conditions of the discharge are
sufficiently similar to the conditions at 43 CFR 11.33(b).
It is likely NOAA will also recommend the new set of computer
models being developed by DOI. The current computer model, for use in
coastal and marine environments, is being revised to comply with the
circuit court's decision in Colorado v. U.S. Department of the
Interior, 880 F.2d 481 (D.C. Cir. 1989) (Colorado v. DOI) and as part
of the statutorily-mandated review and update. The court in Colorado v.
DOI held that natural resource damage assessments should be based upon
costs to restore, replace, rehabilitate, or acquire the equivalent of
the injured natural resources, plus the diminution of all reliably
calculated values pending recovery. Until the revisions to the Type A
model are completed, the trustee(s) may use the current Type A model
for lost use values and supplement the resulting figure with estimates
of restoration costs and other applicable damages. DOI is also
developing a second computer model for use in the Great Lakes and their
connecting channels.
These new computer models are under development through DOI, but
are not yet available for public review. NOAA is working closely with
DOI in its development of these computer models. Based upon an initial
evaluation of these models, it is likely that NOAA will recommend that
there be available procedures that the trustee(s) may choose to use.
E. Expedited Damage Assessment (EDA)
Included in the proposed rule is a new type of assessment
procedure--Expedited Damage Assessment. EDA reflects a damage
assessment approach that is intermediate between the current Type A and
the CDA procedures. This approach recognizes that a Type A model may
not address all key natural resources and/or services injured or at
risk, particularly for inland discharges. The approach also recognizes
that the size, location, and timing of a given discharge may not
warrant the extensive procedures associated with a CDA. The EDA offers
an option that addresses a broader range of natural resources and/or
services than a Type A model but is less time consuming and less
expensive than a CDA.
The goal of an EDA is to initiate necessary restoration as quickly
as possible by truncating the injury determination and quantification
components. Accordingly, an EDA does not include comprehensive or long-
term injury determination and quantification studies nor does it
address injury for every natural resource and/or service that may be
injured.
An EDA is not necessarily a unitary approach to damage assessment.
It encompasses a range of techniques that permit the trustee(s) to
determine injury based on limited, focused observations. In some
circumstances, an EDA may entail supplementing the Type A model with
field studies. In other situations, an EDA may comprise an abbreviated
CDA approach. Accordingly, the EDA should be viewed as a dynamic,
flexible process rather than a rigid step-by-step approach.
Simply stated, the goals of an EDA are to: (1) Identify and
quantify injuries to selected natural resources and/or services
resulting from a discharge, (2) accomplish the above goal using focused
studies and/or preexisting information, and (3) provide the basis for
restoration and recovery of natural resources and/or services. The
trustee(s) may undertake injury determination and quantification only
for selected natural resources and/or services.
Ideally, data collection in an EDA should not exceed two field
seasons. During this period, the trustee(s) should quickly develop
appropriate injury determination and quantification studies, and a
draft restoration plan. The remaining time should be devoted to
completion of the restoration plan, and to public review of the consent
decree and/or restoration plan.
F. Comprehensive Damage Assessment (CDA)
1. General. Whereas the EDA described above is intended primarily
for situations involving cooperative efforts completed within a
relatively short time, the CDA should be used where it is anticipated
that the assessment will require prolonged (i.e., multi-year) studies.
The CDA is particularly appropriate where the trustee(s) expects
complex effects for which there is little documentation in the
literature. The CDA includes guidance on: injury determination, injury
quantification, restoration planning and costs, and economic valuation.
2. Injury determination. The purpose of the injury determination
component in CDA is to verify injury to natural resources and/or
services. Before beginning the CDA, the trustee(s) must assess the
feasibility of detecting injury based on a scientifically valid study
design.
If an injury cannot be determined or cannot be linked to the
discharge, further assessment efforts should be terminated and the
results of the injury determination component documented in the Report
of Assessment. If injury is determined, the approach for the next two
components (i.e., quantification and damages) must be selected
consistent with the findings of the injury determination.
3. Injury quantification. After establishing that a natural
resource and/or service is injured by the discharge of oil, the next
step calls for quantifying the effects on natural resources and/or
services. Close coordination is required between natural resource
specialists and economists in planning and implementing this phase of
the assessment to estimate values in the economic valuation phase.
Quantification should only be conducted for natural resources and/or
services that can be restored and for which damages will be sought.
The proposed rule allows the trustee(s) to quantify injuries in one
of two ways: (1) Measuring direct changes in the natural resource
itself (i.e., changes in the chemical, physical, or biological
parameters); or (2) measuring changes in the level of services provided
by the natural resource. In either case, injury quantification requires
before-after and reference/contol-impact comparisons. Such comparisons
will depend on the recovery period of both the affected natural
resources and/or services. Quantification will ultimately be essential
for the evaluation of restoration alternatives, and measuring the
compensable value of lost services.
4. Restoration Planning. The purposes of the restoration component
are to: (1) Determine the most appropriate restoration approach for the
recovery of natural resources and/or services injured by a discharge of
oil; and (2) estimate the costs of implementing that approach. The goal
of restoration is to return an injured natural resource and/or service
to as close to the baseline condition as possible. OPA provides the
trustee(s) the following options to remedy injury to natural resources
and/or services: restoration, rehabilitation, replacement, and
acquisition of the equivalent natural resources. Natural recovery is an
option that should always be considered. When acquisition of equivalent
natural resources is selected, the DARP shall define clearly the
relationship of acquired natural resources to the injured natural
resources and/or services.
5. Compensable Values Determination. Natural resources are public
assets. Like other assets they provide a flow of services. The basic
types of services associated with natural resources include, but are
not limited to: (1) Recreational, (2) commercial, (3) ecological, (4)
special significance, and (5) passive use. Lost services may result
from the loss of, or reduction in, the quality or quantity of services
provided by a natural resource as a result of a discharge of oil. The
final estimate of interim lost value will, therefore, depend on the
most likely restoration approach. If no restoration is being considered
for the injured natural resources and/or services, damages include the
value of the lost or impaired/diminshed services from the time of the
discharge through the completion of natural recovery.
The total diminution in the value of natural resources and/or
services, whether with restoration actions or natural recovery, is
referred to as ``compensable values.'' For the purposes of this
proposed rule, compensable values include all reliably calculated
values that comprise the total diminution in value of lost or
diminished services of trust resources as a result of a discharge, from
the onset of the event until recovery to baseline or comparable
conditions is deemed complete by the trustee(s), i.e., interim lost
values. ``Compensable values'' are defined broadly to encompass both
direct use and passive use values that can be reliably calculated in a
manner that is trustworthy or worthy of confidence.
Direct use values are defined as the value individuals derive from
direct use of a resource. Passive use values are defined as the values
individuals place on resources independent of direct use of a resource
by the individual. The term ``nonuse values'' has also been used to
refer to the same concept, but NOAA prefers the term ``passive use
values.''
Factors to consider in calculating compensable values include: (1)
The value of the services injured or lost, (2) the predicted level of
services if the discharge had never occurred, (3) the predicted level
of services given injury and natural recovery, and (4) the predicted
level of services given injury and a feasible restoration plan. For
some categories of economic damage, it will be possible to conduct
site-specific analyses. For example, the economic damages associated
with the loss of access to a marine transportation corridor due to
closure of a waterway can be estimated using existing site-specific
data in most instances. In other cases the trustee(s) may employ
benefits transfer procedures to apply valuation estimates or valuation
functions from existing valuation studies from other contexts to
estimate losses in the present incident.
Several methodologies exist to measure direct use and passive use
values. This proposed rule provides maximum flexibility to the
trustee(s) for selecting any methodology that can provide reliable and
valid resource values and that is appropriate for valuing the injuries
associated with a particular discharge. The trustee(s) will have broad
discretion in selecting among existing and potential new methodological
approaches that may be employed in damage assessment. The flexibility
to exercise professional judgment in selecting and applying specific
analytical techniques is necessary because of the ``site-specific''
nature of discharges of oil. Further, the trustee(s) may use different
methodologies to produce separate damage estimates for different
resource services, so long as there is no double recovery of losses.
The choice of methodological approaches in a particular context will
depend upon the types of injuries associated with a discharge.
Estimates of the value of lost services pending recovery of injured
natural resources and/or services will be submitted as part of the
total damage determination.
V. Post-Assessment Phase
At the conclusion of an assessment the trustee(s) shall prepare a
Report of Assessment. The Report of Assessment, which is the final
description of the restoration approach selected by the trustee(s) and
the estimated costs of implementing that approach serves as the basis
for the judicial review on the record of the assessment.
Once the Report of Assessment is compiled, the trustee(s) should
present to the RP(s) a demand in writing for the total damages. The
demand is the document that is presented as the summation of all
damages claimed by the trustee(s) resulting from the discharge. The
demand will consist of an identification of the discharge, the identity
of the trustee(s), the amount of damages, and the Report of Assessment
as an attachment.
The total damage figure may be divided into two components:
estimated restoration costs and other damages, including but not
limited to assessment costs and compensable values. Judicial review of
that portion of the demand representing costs shall be conducted on the
administrative record. Judicial review of that portion of the demand
representing compensable values shall be conducted with the trustee(s)
receiving the benefit of the rebuttable presumption.
There are several issues involving handling sums recovered. One
issue is management of the account into which sums recovered are
placed. The proposed rule allows trustees to establish a ``joint
trustee account.'' This trustee account should be managed by all
trustees through a mutually agreed upon trustee committee or council.
However, if for some reason, the trustees cannot establish a joint
account, the proposed rule allows the trustees to divide the recoveries
and deposit their respective amounts into separate accounts.
The second issue is the possible pooling of recoveries from more
than one discharge into one account for Regional Restoration Plans.
Whether the trustee(s) establishes joint or separate accounts, there
are two possibilities for handling sums recovered from discharges. The
trustee(s) may establish an incident-specific account into which sums
recovered from a single discharge may be placed. However, an
alternative allowed by the proposed rule would be for the trustee(s) to
establish a combined account into which sums recovered from several
discharges could be placed.
Finally, whether joint or separate, incident-specific or combined,
these various accounts may be established within the trustee agency's
own treasury, in an account under the registry of the applicable
federal court, or in a commercial account. The commercial account may
be an escrow account or any other type of account not prohibited by
law. Each of these various types of accounts should be interest
bearing. The trustee(s) should provide that money may only be withdrawn
from such accounts with trustee(s) approval. Also, because of the
multiple types of accounts, the trustee(s) must maintain appropriate
accounting and reporting methods to ensure the proper use of sums
recovered. The damages representing compensation for injuries to
natural resources and/or services are to be spent to develop and
implement a final restoration plan.
The proposed rule describes two types of post-assessment
restoration plans. First, the trustee(s) may develop an incident-
specific restoration plan to address the effects of the discharge of
concern. This plan shall be based upon the restoration component of the
DARP developed using guidance given in the CDA phase of the proposed
rule.
Second, the trustee(s) is allowed to pool recoveries to apply them
to a Regional Restoration Plan for a specific area. This Regional
Restoration Plan would have to be developed through a public review and
comment process consistent with the restoration planning process
described in the proposed rule. Where such a plan already exists,
whether developed pursuant to this proposed rule or under other
management efforts, that plan may be used subject to the requirements
for such a plan listed in the proposed rule. This Regional Restoration
Plan would allow the trustee(s) to apply several relatively small
recoveries to a specific area, such as a bay or estuary to achieve a
more comprehensive restoration than what may otherwise be achieved
through a smaller, more segmented approach.
Relationship to 43 CFR Part 11
The U.S. Department of the Interior (DOI) has promulgated natural
resource damage assessment regulations under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (CERCLA), 42 U.S.C. 9601 et seq. These regulations, which are
codified at 43 CFR part 11, establish an administrative process and
procedures for the assessment of damages for injuries to natural
resources affected by a release of a hazardous substance or a discharge
of oil. These regulations currently provide guidance for damage
assessments resulting from both oil and hazardous substances. After the
OPA regulations are promulgated, the 43 CFR part 11 procedures can
still be used to assess damages for natural resource injuries resulting
from a release of a hazardous substance or a discharge of oil not
covered under OPA.
The procedures identified in 43 CFR part 11 provided a base from
which to identify assessment procedures to be promulgated under OPA.
NOAA requested comments on the applicability to oil discharges of 43
CFR part 11, as modified by the court decisions of Ohio v. U.S.
Department of the Interior, 880 F.2d 432 (D.C. Cir. 1989), and Colorado
v. U.S. Department of the Interior, 880 F.2d 481 (D.C. Cir. 1989). In
addition, NOAA and DOI are coordinating their respective rulemakings to
ensure consistency, when practicable, for the trustee(s) and RP(s) in
conducting natural resource damage assessments due to either a
discharge of oil or release of a hazardous substance. Although similar,
these proposed procedures vary in several aspects from the DOI rule.
Procedural Comparison
Figure 2 shows a rough structural comparison between the two
processes. First, this proposed rule strongly encourages actions
conducted prior to a discharge for ``prespill planning.''
BILLING CODE 3510-12-P
TP07JA94.001
BILLING CODE 3510-12-C
NOAA wishes to emphasize with this designation that actions taken
before a discharge actually occurs are important to the conduct of an
assessment after the discharge has occurred.
Second, the Preassessment Phase described in this proposed rule has
been expanded to reflect more clearly those actions that must occur
before beginning an assessment. This phase includes the Preassessment
Determination, similar to the Preassessment Screen found in 43 CFR part
11. However, the decision as to what kind of assessment procedure is
appropriate for a given incident has been moved up to the Preassessment
Phase in this proposed rule in recognition that this decision must, by
necessity, precede the actual assessment.
Third, the Assessment Phase in this proposed rule lists a wider
range of assessment procedures available to the trustee(s). Section
301(c) of CERCLA, which requires the development of the 43 CFR part 11
process, calls for two types of assessment procedures. Section 1006(e)
of OPA, which requires the promulgation of this proposed rule, does not
specify the number of assessment procedures to be made available to the
trustee(s). Therefore, this proposed rule offers four types of
assessment procedures--two new procedures and two procedures based upon
43 CFR part 11. The two new procedures contained in this proposed rule
are the compensation formulas and the expedited damage assessment
procedures. The compensation formulas are the simplest procedure
available and are designed to address the vast majority of discharges,
those under 50,000 gallons. The expedited damage assessment procedure
recognizes the need for a procedure that falls somewhere on a scale
between the current Type A and Type B procedures found in 43 CFR part
11. Besides these two new procedures, NOAA recognizes the need for
assessment procedures like the Type A and Type B procedures. Therefore,
NOAA is proposing to adopt the use of the current Type A procedure of
43 CFR part 11, subpart D, for use in assessments conducted pursuant to
this proposed rule. Finally, NOAA has also used the current Type B
procedure as a base to develop the comprehensive damage assessment
procedure in this proposed rule. The current Type B process has been
modified to allow a streamlining of the process to recognize the
dynamic nature of a discharge of oil, even a discharge requiring a
multi-year assessment process.
Fourth, the Post-assessment Phase of this proposed rule is
structured in a similar way to 43 CFR part 11. NOAA recognizes that, at
the completion of a damage assessment, the same basic actions are
necessary.
Substantive Comparison
In reviewing this proposed rule, the reader will find numerous
substantive differences between this proposed rule and 43 CFR part 11.
Some of these differences are dictated by the differences between OPA
and CERCLA. Other differences are necessary either to reflect lessons
learned in damage assessments in the last several years or to
acknowledge the inherent differences between oils and hazardous
substances. One example of the substantive differences between the two
rules is in the components of the assessment procedures. In this
proposed rule, restoration planning and compensable value determination
are separated, as opposed to the ``Damage Determination'' step of 43
CFR part 11. This separation is necessary to allow a clear line for the
record review of the restoration component without trying to include
the compensable valuation component into that review. Other substantive
differences appear throughout the proposed rule.
Issues of Interest in Proposed Rule
Several specific issues within the rulemaking process have been the
focus of attention among interested parties. Some of the interest is in
response to the fact that damage assessment regulations were
promulgated under CERCLA. These current regulations, codified at 43 CFR
part 11, apply to both hazardous substances and oils. The OPA rule,
when it becomes effective, will supersede those parts of the CERCLA
rule that deal with oil. Therefore, NOAA is specifically seeking
comments on those aspects of this proposed rule that are different from
the CERCLA rule.
Although the entire proposed rule is open for comment, NOAA is also
particularly interested in receiving comments on several issues that
have drawn much interest from very different points of view. These
issues include: The appropriate standard of judicial review of damage
assessments; the proposed definition of assessment costs; causation as
it relates to injury; the use of a compensation formula and the nature
of its results; and whether the trustee(s) may pool recoveries from
various ``small'' discharges to conduct restoration efforts from a
regional or watershed approach. Specific economic issues include: the
recovery of passive use values for natural resources and the
measurement of these values using the contingent valuation method; and
the appropriate discount rate to use in converting damages to current
dollars. Each of these issues is discussed in the following pages.
Review on the Record
Section 1006(c) of OPA provides that the trustees shall ``develop
and implement a plan for the restoration, rehabilitation, replacement,
or acquisition of the equivalent, of the natural resources under their
trusteeship.'' Section 1006(c)(5) provides that ``plans shall be
developed and implemented under this section only after adequate public
notice, opportunity for a hearing and consideration of all public
comment.'' NOAA is proposing to implement these provisions by requiring
the trustee(s) to document development of restoration plans in an
administrative record through notice and comment procedures.
A majority of the commenters who have spoken to the issue of the
administrative record and judicial review ``on the record'' support the
concept. Several commenters pointed out that these assessments involve
highly technical, scientific findings in which courts have
traditionally treated the agency's determination with great deference.
Therefore, the commenters conclude that judicial review of the
assessment/restoration plan should be conducted on the administrative
record, applying an arbitrary and capricious standard.
Other commenters, however, contend that NOAA would exceed its
statutory authority in granting such a standard of review. Several
commenters stated that the responsible party has the legal right to a
jury trial in natural resource damage assessment disputes as guaranteed
by the United States Constitution. The commenters argued that every
CERCLA natural resource damage case that has addressed the issue has
required a jury trial for these actions at law, therefore, issues
related to the selection of assessment/restoration plans must be
decided by a trial court.
NOAA notes that the administrative record provisions in the
proposed rule are intended to implement several important policy
concerns expressed by Congress in OPA. NOAA has considered
administrative law principles and various comparable policies found in
CERCLA to be relevant to the natural resource damage assessment process
in several areas. The administrative record provisions of this proposed
rule are intended to create an open assessment/restoration process to
allow an objective evaluation of how to restore or replace resources
injured by discharges of oil. Whether these provisions would result in
``record review'' is ultimately the decision of the courts. However,
NOAA feels that record review is essential for the type of expeditious,
fair assessments called for by OPA, and specifically asks for comments
on this approach.
Assessment Costs
OPA allows recovery of damages for injury to natural resources as
well as the reasonable costs of assessing those damages. Under the
CERCLA rule, reasonable costs are defined in terms of the costs being
less than the anticipated damage amount. NOAA has received several
comments in support of adopting the CERCLA rule's definition of
``reasonable costs'' to avoid exorbitant assessment costs. However,
some commenters have argued that it is difficult at the onset of a
discharge to make a preliminary damage estimate that will then be used
to shape the subsequent assessment.
Within the proposed rule, NOAA is defining reasonable costs to mean
those costs associated with performing an assessment in accordance with
the proposed rule. The proposed rule, in turn, gives guidance for each
phase of the assessment as to the reasonableness of assessment
activities. The proposed rule requires that any studies or procedures
be directly related to the purpose of the assessment and are conducted
in a cost-effective manner. This approach does not require the
trustee(s) in the early stages of a discharge to devise a preliminary
estimate of total damages likely to result from that discharge.
However, the proposed rule does require that the assessment be
conducted in such a manner to avoid unnecessary and excessive costs.
Injury/Causation
Under section 1002 of OPA, liability is established when there is
any injury to a natural resource resulting from a discharge of oil.
Injury under OPA encompasses the phrases ``injury to,'' ``destruction
of,'' ``loss,'' and ``loss of use.'' The definition of ``injury''
proposed by NOAA is different from that contained in the CERCLA rule.
According to the CERCLA rule, injury is defined as ``a measurable
adverse change, either long- or short-term, in the chemical or physical
quality or the viability of a natural resource resulting either
directly or indirectly from exposure to a discharge of oil or release
of a hazardous substance, or exposure to a product of reactions
resulting from the discharge of oil or release of a hazardous
substance.'' The definition of injury under CERCLA incorporates the
concepts of injury and causality. Specific injury definitions and
causation for resources are detailed in the CERCLA rule.
Under the OPA proposed rule, NOAA has attempted to more clearly
delineate these terms. The definition of injury under the OPA proposed
rule is more relaxed because it does not require that there be a
``measurable'' adverse change. Consequently, any discharge is likely to
result in an injury. The OPA proposed rule defines injury as ``any
adverse change in a natural resource, or any impairment of a human or
ecological service provided by a resource.'' Injury causation (i.e.,
definition of ``injury resulting from a discharge'') has been
determined when the trustee(s) has demonstrated that: (1) With direct
exposure, (a) the natural resource was exposed; (b) there is a pathway
between the discharge and exposed natural resource; and (c) the
exposure of oil, its components, or by-products has been shown by
rigorous and appropriate scientific methodology to have an adverse
effect on the natural resource in laboratory experiments or the field;
or (2) in the absence of direct exposure, (a) the adverse effect on or
impaired/diminished use of a natural resource has been shown by
rigorous and appropriate scientific methodology; and (b) the adverse
effect on or impaired/diminished use of the natural resource would not
have occurred but for the fact of the discharge or threat of a
discharge. The rationale for this approach is to simplify the legal
determination of liability. Basically, liability is established by the
presence of oil in the water. The trustee(s), however, recovers damages
by establishing a causal link between the presence of oil and the
observed adverse change in the resource or impairment of a human or
ecological service. Conceptually, this approach does not change
substantially the definition of injury under the CERCLA rule.
Compensation Formulas
The proposed rule offers a new damage assessment procedure in the
form of compensation formulas for both estuarine/marine and inland
waters. The estuarine/marine and inland waters compensation formulas
described in this proposed rule are applicable to the vast majority of
oil discharges. An analysis of reported coastal discharges of oil from
1973-1990 shows that 99.8% of the discharges were less than 50,000
gallons and 99% were less than 10,000 gallons. Compensation formulas
would be used for most of these relatively small discharges. These
formulas would allow an estimate of damages per gallon taking into
account average restoration costs, plus average lost direct use values
pending restoration. For various reasons, passive use values are not
included in these formulas at this time. The formulas assume various
levels of natural resource effects likely to result from the discharge
of oil. These assumptions consider the amount and type of oil
discharged and region and habitat type in which the discharge occurs.
The formulas are applicable to a wide range of the most commonly
discharged oil products. This approach allows both a national
consistency and regional specificity.
Some commenters expressed concern that such formulas may under-
value resources in industrialized or biologically degraded areas.
Others noted several disadvantages in simplified assessments, including
the potential overlapping trustee interests in certain natural
resources, damages will not sufficiently reflect the extent of the
actual injury, and the risk that a compensatory assessment could be
transformed into a punitive exercise.
Since the compensation formula is based upon averages, it is
impossible to include all known coastal habitats and every combination
of discharges. As proposed, the Estuarine and Marine Environments
Compensation Formula is based upon 55 representative province/habitat
combinations, ranging from Northern Maine to the Alaskan coast, the
Hawaiian and Pacific Islands. The Inland (Freshwater) Waters
Compensation Formula is based upon 100 representative province/habitat
combinations representing the Great Lakes and other inland waters by
type, i.e., river, lake, fast flowing stream, etc. By comparing the
habitat of the actual discharge with the province and specific habitat
used to estimate the damages in the formula, the trustee(s) should, in
most cases, find the most applicable scenario. NOAA emphasizes that the
primary advantages of a compensation formula are for simplicity and
cost-effectiveness.
In cases where the circumstances of an actual discharge are
determined to be far out of the bounds of the compensation formula, the
trustee(s) should consider the use of another assessment procedure. The
compensation formulas generate damages based on average restoration
costs and average diminution of value of the affected natural resources
and are thus compensatory as authorized by OPA. Therefore, the
compensation formulas are not akin to punitive damages.
NOAA is also proposing that the damages generated by the
compensation formulas will be conclusive in nature. That is, once the
rule becomes final and survives any judicial review, parties may
challenge the information used in applying the formulas in a particular
assessment, but may not challenge within that assessment the underlying
data used in developing the formulas.
Regional Restoration Plans
Section 1006(f) of OPA requires that sums recovered as damages be
used to develop and implement a plan for the restoration,
rehabilitation, replacement, or acquisition of the injured natural
resources. The proposed rule describes two types of Restoration Plans.
First, the trustee(s) may develop an Incident-Specific Restoration Plan
to address the effects of the discharge of concern. This plan would be
based upon the restoration planning guidance given in the proposed
rule. This plan should serve to define the objectives and approach
based on a sound decisionmaking process for the particular discharge
site. However, under this proposed rule, the trustee(s) would also be
allowed to pool recoveries to apply them to a Regional Restoration
Plan. These plans could be developed on a geographical or habitat basis
to allow the recovery of the system covered by the plan. Where such a
plan already exists, whether developed through prespill planning
efforts or under regular management efforts, that plan may be used if
it has been developed through a public review and comment process that
considers the major factors contained in the restoration planning
guidance in the rule. The plan must also address the same or similar
resource injuries as those identified in the assessment procedure.
These requirements are completely consistent with the current CERCLA
rule, which also allows for pooling damages. This option will likely be
most useful in areas with long-term pollution effects where damages
from a single discharge would be too small to ``restore'' the ecosystem
or where the planning costs for the restoration after a single
discharge would be quite high compared to the damage figure. However,
where a Regional Restoration Plan has not been developed, an Incident-
Specific Restoration Plan must be developed for use of the damages
recovered.
Several commenters have strongly rejected the use of recoveries
from several discharges for an ecosystem, bay, or area approach. The
commenters argued that pooling and usage of funds is contrary to the
principles of compensatory damages and avoidance of double damages
enunciated by Congress in passing OPA. Further, this usage contradicts
section 1006(f) that ``there be a nexus between monies recovered
resulting from a particular spill and their use to restore or enhance
the specific resources `affected by a discharge.''' Other commenters,
however, have supported a pooling of funds in order to fund a
restoration plan for an entire region, provided a legally-approved
regional restoration plan exists.
NOAA does not believe that pooling recoveries for use in a Regional
Restoration Plan contradicts the requirement in OPA that recoveries be
used to restore the resources affected by a discharge. A relatively
small recovery, assessed by a compensation formula, is unlikely to be
sufficient to restore a bay or estuary affected by a discharge where
many forces are working to degrade that ecosystem. By pooling
recoveries, the trustee(s) has a chance to carry out meaningful actions
to help that system recover. The responsible party will be able to
defend against an attempted double recovery by showing how the damage
figure is to be applied within the regional plan.
Resource Values
The major focus on economic issues within the rulemaking has been
the question of what types of values should be included in a damage
assessment and what methods should be used to measure those values.
Section 1006(d) of OPA authorizes the trustee(s) to recover: The cost
of restoring, rehabilitating, replacing or acquiring the equivalent of
the injured or lost natural resources and/or services; the diminution
in value of the injured or lost natural resources pending restoration;
plus the reasonable cost of assessing those damages. In the proposed
rule, the total diminution in value of resources and/or services
affected by a discharge is referred to as compensable values, which
include all reliably calculated values that comprise the total
diminution in value of lost or diminished services of trust resources
as a result of a discharge, from the onset of the event until recovery
to baseline or comparable conditions is deemed complete by the
trustee(s). In accordance with the OPA Conference Report,``diminution
of value'' refers to the standard for measuring resource damages cited
in the D.C. Circuit Court decision on Ohio v. DOI. The Ohio opinion
defines ``use values'' broadly, to encompass both direct use and
passive use values that can be reliably calculated, i.e., calculated in
a manner that is trustworthy or worthy of confidence.
Direct use values are defined as the value individuals derive from
direct use of a natural resource. Direct uses of resources include both
consumptive uses, such as fishing and hunting in which resources are
harvested, and nonconsumptive uses, in which the activity does not
reduce the stock of resources available for others at another time,
such as bird watching and swimming. Passive use values are defined as
the values individuals place on natural resources independent of direct
use of a resource by the individual. The term ``nonuse values'' has
also been used to refer to the same concept, but NOAA prefers the term
``passive use values.'' Passive use values include, but are not limited
to: the value of knowing the resource is available for use by family,
friends, or the general public; and the value derived from protecting
the natural resource for its own sake; and the value of knowing that
future generations will be able to use the resource.
Some interested parties have asserted that passive use value
damages should only be assessed for permanent or long-lasting injuries
to unique natural resources--atypical conditions for discharges of oil.
They argued there is no need for compensation for lost passive use
values when the resource will fully recover and when compensation will
be paid for direct use losses pending restoration.
Others have argued that passive use values should be included in
damage assessment, because exclusion would understate the true cost of
exposing natural resources to environmentally risky activities. They
have also argued that exclusion of passive use values would induce
systematic reallocation of environmentally risky activities to those
environments that generate greater passive use values relative to
direct use values.
NOAA has found no empirical evidence to suggest that a natural
resource must be unique, non-reproducible and/or permanently injured in
order to have significant passive use values. NOAA recognizes that, in
cases involving temporary injury, individuals may not experience a
significant sense of loss because the existence of the resource is not
permanently threatened. NOAA has found ample evidence, from the OPA
Conference Report and the decision in Ohio v. DOI, to believe that
``diminution of value'' refers to the standard for measuring resource
damages cited in Ohio v. DOI. This opinion defines ``use values''
broadly, to encompass both direct use and passive use values that can
be reliably measured. NOAA believes that failure to include all
relevant categories of damages in a claim would understate the true
loss to the American public attributable to a discharge of oil. Under
OPA, and in accordance with the Ohio v. DOI decision, passive use
values are a component of compensable values that are necessary to
fully compensate the public for losses as a result of a discharge, and
to return the public, as nearly as possible, to the level of well-being
it enjoyed before the discharge.
Contingent Valuation Method
In the Ohio decision, the D.C. Circuit Court determined that the
interim lost value portion of the claim was to include total resource
value, encompassing both direct use (recreational, commercial,
cultural/historical) and passive use of resources. In the comments,
there has been substantial discussion about contingent valuation (CV),
the only known methodology for measuring the passive use component of
total resource value. CV is a survey-based approach to the valuation of
nonmarket goods and services that relies on a questionnaire for the
direct elicitation of information about the value of the good or
service in question.
Contingent valuation surveys generally measure total value of a
good or service, which includes both direct use value and passive use
values. Because passive uses of resources leave no behavioral trace,
they are difficult to validate externally. A number of criticisms of CV
pertain specifically to its use in valuing the passive use component of
total use value and the difficulty of external validation of that
component of total value. Proponents of CV assert that these problems
are not inherent to the method and that well-designed and well-executed
CV studies can eliminate them or render them inconsequential.
Though no other methods are available to provide alternative
estimates of the passive use component of total value, it is possible
to develop a variety of tests to evaluate the validity of the
responses. Due to the substantial interest in the topic, NOAA convened
a panel of experts co-chaired by two Nobel laureates, to evaluate the
reliability of CV to measure passive use values. The report issued by
the panel is part of the administrative record of this rulemaking,
along with the comments received from economists, industry
representatives and other interested parties. Based upon information in
the panel's report and other comments, NOAA is recommending several
validity tests in guidance for designing and conducting CV studies
provided in the proposed rule.
NOAA is proposing that reliable estimates of lost passive use value
due to discharges of oil can be estimated using CV so long as the CV
study follows the guidance offered in this preamble and the proposed
regulations. This guidance basically states that the trustee(s) should
follow a conservative approach when designing a CV instrument, that is,
to choose the design that would understate the natural resource damage
rather than overstate the damage.
One commenter has noted that any damage assessment rule authorizing
CV to measure passive use damages could well cost the U.S. economy
hundreds of millions of dollars annually by generating excessively high
estimates of passive use damages and could result in the bankruptcy of
some responsible parties. The proposed rule has been designated as a
``major'' rule because of the significant issues involved in the
rulemaking. However, because of the difficulty of evaluating the
effects of alternatives to this proposal, a Regulatory Impact Analysis
under E.O. 12866 is not necessary and has been waived.
Discounting Damages
Calculation of natural resource damages will generally require the
use of discounting in the estimation of: (1) Estimated restoration
costs; (2) diminution in value of the injured or lost resources pending
restoration; and (3) damage assessment and restoration costs incurred
by the trustee(s). ``Discounting'' is a widely used economic procedure
that allows the trustee(s) to convert past and future damage sums to
current dollars. This conversion is necessary for the trustee(s) to be
able to present a claim for a ``sum certain.'' Currently, the CERCLA
rule requires that a 10% discount rate be used. NOAA is proposing that
the U.S. Treasury rate should be used for discounting a trustee damage
claim.
DISCUSSION
Subpart A
Scope, Applicability, Purpose
OPA provides for the prevention of, liability for, removal of, and
compensation for the discharge of oil into or upon the navigable waters
or adjoining shorelines of the United States, including the natural
resources of the Exclusive Economic Zone. OPA provides for the
designation of federal, state, Indian tribe, and/or foreign officials
to act on behalf of the public as trustee(s) for the nation's natural
resources. In the event that natural resources are injured, destroyed,
lost, or the loss of use of natural resources occurs as a result of a
discharge of oil covered by OPA, these officials are to assess natural
resource damages, present a claim to the RP(s), recover damages, and
develop and implement a plan for the restoration, rehabilitation,
replacement, or acquisition of the equivalent of natural resources and/
or services under their trusteeship.
This part applies to assessments of damages resulting from
discharges of oil where those discharges occurred after the effective
date of OPA (August 18, 1990). Discharges involving mixtures of oil and
hazardous substances would ordinarily be covered by CERCLA. However,
the U.S. Environmental Protection Agency (U.S. EPA) has issued guidance
on the petroleum exclusion under sections 101(14) and 104(a)(2) of
CERCLA. (U.S. EPA Memorandum on the Petroleum Exclusion under the
Comprehensive Environmental Response, Compensation, and Liability Act,
July 31, 1987; BNA Environment Reporter 41:3321, 2/12/88.) Under this
guidance oil covered by OPA would be: (1) Crude oil and fractions of
crude oil including the hazardous substances, such as benzene, toluene,
and xylene, which are indigenous to petroleum and its refined products;
and (2) hazardous substances that are normally mixed with or added to
crude oil or crude oil fractions during the refining process, including
hazardous substances that have increased in level as a result of the
refining process. However, hazardous substances added to petroleum that
increase in concentration through any process other than refining, or
added as a result of contamination of the petroleum during use
(including waste oil), would not be excluded from CERCLA. For example,
the presence of dioxin in oil used as a dust suppressant on highways
would bring a discharge of such a mixture under the jurisdiction of
CERCLA, not OPA.
This part applies to all natural resource damages caused by oil (as
defined by the Clean Water Act amended by OPA) discharged into
navigable waters of the United States. The ``oil'' definition includes
petroleum and non-petroleum (e.g., animal, vegetable, and wood
chemical). A natural resource damage assessment may be appropriate even
in discharges caused by carriers transporting quantities smaller than
the threshold limits that would require OPA response plans. The
determination of when natural resource damage assessment will be
conducted is a responsibility of the trustee(s) acting on behalf of the
public.
NOAA is using in the proposed rule, the OPA definition of natural
resources that provides for various degrees of government regulation,
management or other form of control over the natural resources to make
the OPA natural resource damage provisions applicable. The proposed
rule repeats the statutory language of ``belonging to, managed by, held
in trust by, appertaining to, or otherwise controlled by,'' and thus
covers a broad range of government interest in natural resources on
behalf of the public. Pursuant to that language, general sources of
authority for recovery under the rule could include, but not
necessarily be limited to, relevant treaty or other provision of
international law, constitution, statute, common law, regulation,
order, deed or other conveyance, permit, or agreement.
The statutory phrase ``belonging to'' connotes ownership and would
cover government-owned lands, as well as resources affixed, i.e.,
permanently attached, to such lands. However, the remaining terms,
``managed by, held in trust by, appertaining to, or otherwise
controlled by,'' ensure a wide range of legitimate government interest
in natural resources that may, in fact, be held in private ownership.
Therefore, the proposed rule directs the trustee(s), or co-
trustees, to state briefly the authority for asserting trusteeship, or
co-trusteeship in the Preassessment Report and in the Draft Assessment/
Restoration Plan. In describing the natural resources of concern to the
trustee(s), the trustee(s) will cite the relevant treaty or other
provision of international law, constitution, statute, common law,
regulation, order, deed or other conveyance, permit, or agreement
providing the basis for the trusteeship.
This part supplements the procedures established under the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR
part 300, for the identification, investigation, study, and response to
a discharge of oil, and provides procedures for a natural resource
trustee(s) to determine compensation for injuries to natural resources
and/or services that have not been nor are expected to be sufficiently
addressed by response actions conducted pursuant to the NCP.
This part provides for a process to develop a DARP to document the
most appropriate restoration approach for the administrative record,
with its estimated costs, for a particular discharge. Therefore, any
judicial review of the development of the restoration component of the
assessment would be based solely upon the administrative record. Once
the restoration approach is developed, the trustee(s) then can
determine the expected interim lost values. It is anticipated that the
calculation of those values would not be included in the administrative
record and would not, therefore, be reviewed on the basis of the
administrative record.
Response to Comments
Scope, Applicability, Purpose
Comment: Several commenters noted that the damage assessment
procedures outlined in this proposed rule apply only to discharges of
oil under OPA. These commenters pointed out that this rule replaces the
current DOI rule, at 43 CFR part 11, for natural resource damage
assessments in discharges of oil. One of these commenters noted that
the DOI rule cannot be incorporated since parts of that rule were
declared illegal and are not yet revised.
Response: NOAA agrees that the proposed rule only applies to
natural resource damage assessments performed for discharges of oil
under OPA. When this proposed rule is promulgated as a final rule, it
will supersede those parts of the current 43 CFR part 11 that deal with
discharges of oil covered by OPA. The status of 43 CFR part 11 is
immaterial to this ongoing rulemaking since only those sections upheld
by the Court in the Ohio decision were used as a starting point for the
OPA regulations.
Comment: One of these commenters specifically stated that, since
the decisions of Ohio v. U.S. Department of the Interior (Ohio) and
State of Colorado v. U.S. Department of the Interior (Colorado)
concerning 43 CFR part 11 were decided before OPA's passage, those two
decisions are not controlling over NOAA's rule. These commenters argue
that Congress was aware of the decisions but did not incorporate them
in the NOAA charge to promulgate this proposed rule.
Response: NOAA notes that the decisions in Ohio and Colorado cases
are not directly controlling on the OPA rules. However, the decisions
do represent the only existing case law on some of the issues involved
in this rulemaking. Also, Congress did specifically reference the Ohio
decision's definition of ``diminution of value'' in the Conference
Report on OPA.
Comment: Several commenters noted that the natural resource damage
assessment rule is a part of the regulatory scheme covered by OPA.
These commenters urged NOAA to keep this perspective in mind so that
NOAA's rule does not duplicate or overlap other OPA regulations;
therefore, NOAA's rule should not allow punitive damages, since
penalties are set up in other provisions of OPA, nor should this rule
allow scientific research beyond what is needed to determine the
natural resource damages.
Response: NOAA recognizes that this proposed rule is but a small
part of the larger scheme of regulations required by OPA. For example,
this proposed rule would supplement the overall activities surrounding
a response to oil discharges set out in the NCP, 40 CFR part 300. There
are also regulatory requirements for transport of oil, certification of
vessels, etc., called for by Title IV of OPA. These other rulemakings
are separate and apart from this proposed rule. NOAA has been
coordinating with other federal agencies, particularly those other
agencies that have regulatory and planning responsibilities under OPA
to ensure consistency and avoid overlapping requirements.
NOAA also notes that Title VII of OPA authorizes an ambitious
research and development program on oil pollution to cover the basic
research that is beyond a natural resource damage assessment. As noted
elsewhere in the preamble, this proposed rule disallows work beyond
that needed to determine, quantify, restore, rehabilitate, replace,
acquire the equivalent, and value injury to, destruction of, loss of,
or loss of use of natural resources and/or services resulting from a
discharge of oil.
NOAA further recognizes that penalties or other punitive measures
are provided for elsewhere in OPA. The natural resource damage
provisions of OPA are compensatory, not punitive. A discussion of
allowable damages is found in the discussion of Sec. 990.14--``Recovery
of Damages'' and elsewhere in this preamble.
Comment: One commenter recommended that NOAA consider clarifying
whether CERCLA or OPA would cover a particular discharge of oil.
Response: NOAA notes that the previous preamble discussion on the
scope of this proposed rule describes the types of oil that are covered
by OPA.
Comment: One commenter suggested that NOAA's rule should serve to
provide the basic framework from which different state and local
agencies can adopt and expand upon through implementation.
Response: NOAA notes that, while the use of the proposed rule is
optional, it is hoped that the guidance and procedures in this proposed
rule will prove useful to all trustee agencies.
Comment: A few commenters discussed the requirement that new
regulations result in greater benefits than costs to society, as
directed by E.O. 12291 [now E.O. 12866].
Response: NOAA notes that this proposed rule is explicitly designed
to allow for expeditious and fair compensation to the public for
effects of a discharge on the public's natural resources. Purely
speculative damages clearly are not allowed under this damage
assessment process.
Comment: One commenter suggested that the natural resource damage
assessment rule allow for consideration of the size of the business
enterprise responsible for the damages. Another commenter suggested
that damages should be allocated somehow proportionately across the
different stages of oil production, i.e., production, transport, use.
Response: NOAA points out that the RP's ability to pay based on its
financial ``size'' should not be a determining factor. The damage
assessment process required under section 1006(e) of OPA is to
determine the type and extent of adverse effects and define the best
approach for the recovery of the affected natural resources and/or
services. In fact, Congress explicitly removes this concern from the
assessment of damages by allowing uncompensated claims against the
Fund. Allocation across stages of production is not possible within
this proposed rule.
Comment: One commenter stated that loss of subsistence use of
resources should be covered in the natural resource damage assessment
process.
Response: NOAA points out that section 1002(b)(2)(C) of OPA
specifically provides for the recovery of damages for the loss of
subsistence use of natural resources. Such damages are recoverable by
anyone who uses natural resources for subsistence.
Comment: Although several commenters mentioned that section 1006(e)
of OPA provides a rebuttable presumption for assessments performed
pursuant to the natural resource damage assessment rule, one commenter
specifically raised the question of how one might define the phrase
``in accordance with.'' One commenter noted that, so long as the
trustee(s) follows the rule and the public is given the opportunity to
review and comment on the restoration plans called for by section
1006(c)(5), the trustee's(s') determination of damages is granted the
rebuttable presumption. Another commenter suggested that the rebuttable
presumption should only apply to issues and components of an assessment
that are specifically included in the proposed rule. A few commenters
questioned the relationship between the statutorily granted rebuttable
presumption and the NOAA suggestion of assessments being conducted ``on
the record'' to be reviewed under the ``arbitrary, capricious, or
otherwise not in accordance with law'' standard of review. Another
commenter pointed out that the trustee(s) is also entitled to the
rebuttable presumption when presenting a claim to the Fund.
Response: NOAA notes that the damage assessment and restoration
planning process developed through this rulemaking is a framework that
offers both guidance and a range of procedures for the trustee(s) to
design the assessment/restoration approach most appropriate for the
specific discharge. The philosophy of this proposed rule is to provide
flexibility to allow the most cost-effective assessment/restoration
approach for a particular incident while giving guidance on how this
assessment can be conducted using ``good science.''
The rebuttable presumption applies, in the statutory language, to
``any determination or assessment of damages to natural resources.''
This language indicates that the entire assessment, including the
dollar figure is granted the presumption. Given the need for
flexibility in an assessment, the presumption will apply to any part of
the assessment conducted pursuant to this proposed rule, even if some
part of the assessment activities are not specifically listed in the
rule. NOAA also notes that section 1006(e) applies both to actions
against an RP and claims against the Fund.
In response to the commenters' questioning the relationship between
the rebuttable presumption and a review on the record, NOAA notes that
the rebuttable presumption goes to the trustee(s) who conducts an
assessment ``in accordance with'' this proposed rule. This language is
comparable to the ``not inconsistent with the NCP'' language found in
section 107(a)(4)(A) of CERCLA, which allows recovery of response costs
that are not inconsistent with the NCP by the United States, a state,
or an Indian tribe. Therefore, one challenging such costs must show
that the claimant acted in a way that was inconsistent with the NCP. In
a natural resource damage assessment under OPA, the trustee(s) gets a
rebuttable presumption for the assessment conducted ``in accordance
with'' this proposed rule. Therefore, someone challenging the
assessment must affirmatively prove that the assessment was
inconsistent with the assessment process set forth in this proposed
rule.
Reviewing a damage assessment ``on the record'' refines the phrase
``in accordance with.'' The review is of the information, data, and
procedures used in the assessment/restoration planning process, to
determine the type and extent of effects and best approach for
ecosystem recovery. In this way, therefore, the rebuttable presumption
and record review complement each other. (A further discussion of
record review and this proposed rule is provided later in this
preamble.)
Comment: Several commenters noted that NOAA should develop guidance
and technical support documents, rather than rigid rules. One other
commenter, however, stated that the proposed rule should contain a
clear process to ensure the consistent application of the damage
assessment process and gain public trust in that process. This
commenter urged that NOAA not limit the rulemaking to developing
``guidance'' for damage assessment instead of providing clear
requirements. Other commenters recognized that national uniformity is a
desirable goal, but less formalized, i.e., flexible procedures are
preferable in dealing with a wide range of incidents.
Response: NOAA believes that flexibility is important in the
proposed rule. The trustee(s) must be allowed the ability to design an
assessment/restoration approach that is appropriate for the situation
at hand. No national scheme could possibly anticipate all possible
discharge situations. In response to the requests for guidance, NOAA is
providing guidance on the best approaches to an assessment, in addition
to certain required steps and criteria. NOAA is also developing
technical guidance documents on: Preassessment, Injury Determination
and Quantification, and Restoration (Guidance and Bibliography), as
part of this rulemaking.
II. Definitions
Response to Comments
``Acquisition''
Comment: One commenter disagreed with grouping ``replacement'' and
``acquisition'' together, as acquisition implies an off-site activity.
Another commenter indicated that the proposed definition describes
``replacement,'' but the definition of ``acquisition of the
equivalent'' should also incorporate the requirement of ``proximity to
the affected area,'' for the purpose of ``enhancing the recovery * * *
of the ecosystem affected by a discharge.'' In addition, the commenter
stated that the regulations should reflect Congress' preference for on-
site restoration and should limit the availability of acquiring
equivalent resources to those rare situations where the cost of site
specific restoration would be ``grossly disproportionate to the value
of the resources involved.''
Another commenter noted that acquisition must be accompanied by
some effort to restore the discharge-impaired habitat. Acquisition
involves only a transfer of property accompanied by a net loss of the
species affected by the discharge. However, the commenter also stated
that acquisition may be used to replace the loss of resources between
the time of initial loss and full recovery of the habitat affected by a
discharge. One commenter noted that acquisition of equivalent resources
is not the same as replacement because it does not occur in the area
affected by the discharge.
Response: NOAA agrees that the terms ``acquisition'' and
``replacement'' should be defined separately. NOAA recognizes that the
Conference Report accompanying OPA states that the alternative of
acquiring equivalent natural resources should be chosen only when the
other alternatives are not possible, or when the cost of those
alternatives would, in the judgment of the trustee(s), be grossly
disproportionate to the value of the natural resources involved. This
discussion, however, is more appropriate in other parts of the preamble
and proposed rule.
``Baseline''
Comment: One commenter requested a more clear definition of
``baseline.'' Another commenter recommended that the definition of
``baseline'' reflect that, in the absence of reliable data on natural
variability, the baseline condition will be the condition of the
resources that existed at the location and time of the discharge.
Further, the commenter suggested that the definition be replaced or
supplemented with the following definition: Baseline data are those
which have been collected for natural resources and environmental
variables of interest for an extended period of time (typically years)
on a regular basis (e.g., annually, quarterly) up to the time of the
discharge. This database should describe the temporal mean and
variation of the variable(s) of interest, so that statistically
significant departures from this mean could be measured. Baseline data,
therefore, should ``take into account the natural variability that
would have existed at the assessment area.'' The commenter suggested
that ideally, the last sampling period in a baseline would have
occurred immediately prior to the discharge and included specific
locations that are or will be affected by the discharge. The commenter
stated that the early sampling program cannot provide a baseline (as
defined above), and should be clearly distinguished from a baseline.
The early sampling program cannot document the temporal variability in
the natural environment, especially for resources that have life cycles
longer than a few days or environmental variables that have seasonal
components.
Response: NOAA agrees that the definition of baseline should be
clarified and has revised the definition accordingly. The definition of
early sampling has been deleted.
``Biological Resources''
Comment: One commenter recommended that habitats, such as the water
column or substrate, must be included as ``biological resources'' along
with the interrelationships between species that are necessary for a
normal healthy functioning ecosystem. The commenter argued that species
depend on these habitats for successful completion of their normal life
histories. If the discharge adversely affects these ecosystem
components, then it should be presumed that injury to biological
resources has occurred.
Response: NOAA has deleted the definition of ``biological
resources'' along with those for ``air,'' ``drinking water supply,''
and ``surface water.'' NOAA believes that these natural resources are
included in the statutory definition of natural resources, which
encompass ``other resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by,'' the trustee(s). NOAA
takes the position that this provision includes biological resources,
and therefore there is no need for a separate definition. Further, NOAA
interprets the statutory definition as sufficiently broad to include
the water column or substrate. Accordingly, a trustee(s) may seek
damages for injury to the water column or substrate.
``Compensation''
Comment: One commenter suggested ``compensation'' is the sum total
of payment for damages to natural resources. The commenter noted that
payment shall include costs for injury and assessment investigations,
restoration of affected resources in the assessment area, monitoring of
the restoration implementation, necessary mid-course adjustments to the
restoration plan based on monitoring results, and acquisition of
additional habitat for the same or comparable resources affected by the
discharge to offset resource injuries between the time of the discharge
incident and full recovery following implementation of the restoration
plan. The term ``compensation'' must either be incorporated as a part
of the definition for ``restoration or rehabilitation'' or contained in
a separate definition as proposed. This concept for compensation should
also be included within the scope of ``damages.''
Response: NOAA has not specifically defined ``compensation.''
However, Sec. 990.14 of this proposed rule addresses recoveries and
includes items that the commenter suggested should be compensable. The
trustee(s), therefore, may recover: (1) For injury to natural resources
and/or services through the recovery period, including monitoring
costs, (2) costs of emergency restoration, (3) the reasonable costs of
assessment including preassessment and methodologies provided for in
the various assessment procedures, (4) the cost of restoration,
rehabilitation, replacement, or acquiring equivalent resources, and (5)
interest on the amounts recoverable, as provided in section 1005 of
OPA.
``Control Area'' or ``Resource and Reference Area'' or ``Resource''
Comment: One commenter believed ``control area,'' ``control
resource,'' ``reference area,'' or ``reference resource'' need further
definition and clarification. The commenter stated that all have
identical definitions and are cross-referenced in the earlier notice.
The commenter recommended that the terms ``control area'' and ``control
resource'' be deleted or restricted in the regulation, and that the
terms ``reference area'' and ``reference resource'' be used instead.
The word ``control'' should only be used in relation to the laboratory
or some microcosm and mesocosm testing facilities. The commenter
believed that ``control area'' refers to completely controlled systems.
Natural environments, however, are affected by many variables (in time
and/or space). The commenter noted that ``reference area'' data and
information are collected following the discharge, but in areas
unaffected by the discharge. The reference areas should be as nearly
identical to the affected areas as practical, except that there will
not be oil from the incident in the reference area. The reference area
sampling program(s) should be identical to those in the affected areas
in order to conduct quantitative comparisons regarding effects,
recovery, natural variation, etc. Further, the commenter stated the
``reference area'' concept is based on the reality that there may be
frequent and often substantial change in physical, chemical, and
ultimately, biological variables in the natural resources of interest,
due to natural, not man-made, factors. These natural changes should be
monitored so that their influence on the affected, and recovering,
community can be evaluated. The commenter noted that the effect of
natural variation, as documented in reference areas, on affected areas
may be very important in the injury assessment and quantification
phases of the natural resource damage assessment, and thus in the
ultimate damages assessed against the RP.
Response: NOAA recognizes that the terms ``control'' and
``reference'' are distinct. NOAA has incorporated the commenter's
concerns both in the rule and preamble language. NOAA further has
addressed the importance of natural variation in the damage assessment
process.
``Destruction''
Comment: One commenter believed the definition of ``destruction''
is so narrow that almost nothing will be covered because ``total'' and
``irreversible loss'' are very difficult to achieve. Further, the
commenter suggested that this definition be omitted.
Response: NOAA agrees, in part, and has revised the definition by
deleting the phrase ``irreversible loss.''
``Drinking Water Supply''
Comment: One commenter suggested that a ``drinking water supply''
for less than ten people would not justify restoration so that an
alternate supply would be a better answer for the limited period an oil
discharge would affect such a water supply. Another commenter noted the
definition is too broad as it would cover any water supply that one
person might drink once. The commenter suggested that the definition be
amended to read ``drinking water supply'' means any raw or finished
water which is or may be used by a public water system, as defined in
the Safe Drinking Water Act, or as drinking water by one or more
individuals on a regular basis.
Response: NOAA has deleted the definition of ``drinking water
supply'' because it is included in the statutory definition of natural
resources.
``Early Sampling Data''
Comment: One commenter noted ``early sampling data'' are those
obtained in the early sampling of both affected and reference areas
immediately after the discharge occurs. The commenter stated that often
this program will be designed without benefit of baseline or historical
data (as defined earlier). The early sampling program provides data on
the natural resources and environmental variables at the time of the
discharge. It may be described as a ``time slice,'' a ``benchmark,'' or
a ``base point'' in time, compared to a baseline (i.e., a series of
``base points'').
Response: NOAA agrees with the commenter's description of early
sampling data. While NOAA has not included the phrase ``early sampling
data'' in the definitions section, the concepts outlined by the
commenter are included in the preamble and this proposed rule.
``Equivalent''
Comment: Two commenters stated ``equivalent'' resources under this
section are resources that the trustee(s) determines are comparable to
the injured resources. They noted ``equivalent'' resources should be
acquired to enhance the recovery, productivity, and survival of the
ecosystem affected by a discharge, preferably in proximity to the
affected area. Another commenter defined ``equivalent'' as, ``to have
equal power * * * equal in force, amount or value * * * corresponding
or virtually identical especially in effect or function * * *''
Webster's New Collegiate Dictionary (1981). The commenter noted that
NOAA does not define the term ``equivalent'' and recommends a
nationally consistent definition be developed.
Response: The OPA Conference Report, H.R. 101-653 at p. 109,
defines ``equivalent'' to mean natural resources that the trustee(s)
determines are comparable to the injured natural resources. NOAA adopts
a similar definition.
``Exposed to'' or ``Exposure of''
Comment: One commenter noted that the definition of ``exposed to''
properly implies that physical contact with the oil discharge must be
the proximate cause of any compensable natural resource damage.
Response: NOAA disagrees that the definition of ``exposed to''
implies that physical contact with oil discharge must be the proximate
cause of any compensable natural resource damage. NOAA defines
``exposed to'' to mean that all or part of a natural resource that may
be in contact with oil or with any medium containing oil. Further, NOAA
is not limiting recovery of damages to natural resources that have been
exposed to oil (see definition of ``resulting from'').
``Geologic Resources''
Comment: One commenter believed the definition of ``geologic
resources'' is redundant under the OPA regulations and should be
omitted.
Response: NOAA has adopted the statutory definition of natural
resources which implies that ``geologic resources'' are included.
Specifically, the definition includes ``other resources belonging to,
managed by, held in trust by, appertaining to, or otherwise controlled
by,'' the trustee(s). NOAA takes the position that this provision may
include geologic resources, and therefore, there is no need to include
a separate definition of geologic resources.
``Historical Data''
Comment: One commenter believed ``historical data'' are those that
have been collected prior to the incident, but may not have been
collected for several periods (e.g., months, quarters, years) prior to
the incident. This database may provide a description of the resources
in the past, but there may be a temporal discontinuity long enough that
there could have been a significant change in the variable during that
time. The temporal gap, therefore, may be sufficient so that: (a) It
exceeds a few generation times of the ``important'' resources, (b) a
major episodic recruitment event could have occurred, or (c) that a
major disturbance event (e.g., storm) could have occurred. Further,
``historical data'' from areas similar to the affected area, though the
areas may not be suitable as reference areas, may be appropriate.
``Historical data'' may provide a ``gestalt'' about the present
affected areas, in some cases, but may not be appropriate for
quantitative comparison.
Response: NOAA agrees with the commenter's discussion of historical
data and has revised the definition accordingly.
``Natural Resource Damage Assessment''
Comment: One commenter believed the definition of ``natural
resource damage assessment'' should include new scientifically
developed methodologies that may be devised for the unique resource
damage circumstance related to the discharge at hand. Such
methodologies may not necessarily exist in a prescribed state prior to
the discharge.
Response: NOAA agrees and has eliminated the restrictions in the
earlier notice.
``Natural Resources''
Comment: One commenter urged that areas that are privately owned
but that support public natural resources should be included. A
commenter agreed with NOAA's decision not to attempt to limit the broad
statutory definition of ``natural resources'' by providing specific
guidelines on the degree of governmental control necessary to allow
public recovery. The commenter stated that a natural resource located
on private property may have both public and private value, and it is
the trustee(s) who should determine whether the public has an interest
in the resource.
Response: NOAA recognizes that there are times when natural
resources located on private property may have public value. However,
the ``public'' nature of the resource would have to be decided on a
case-by-case basis. At the time of the Preassessment Phase, the
trustee(s) is required to determine if there are resources of concern
to the trustee(s) that might be affected by the discharge. It is at
that time that the determination could be made of the nature of the
public's interest in the resource.
Comment: One commenter stated that NOAA should attempt to ensure
inclusion of all potentially affected trustee resources, such as
archeological resources and park lands or other preserved natural areas
valued particularly for their pristine state, into the natural resource
damage assessment process.
Response: NOAA has included a new definition of ``resources of
special significance.'' This definition is designed to address the
concerns of the comments (see ``resources of special significance'').
``Nonuse (Passive use) Value''
Comment: Two commenters questioned whether a regulatory definition
for passive use value is necessary, except to refer to values that
cannot be reliably calculated. Another commenter urged the inclusion of
the phrase, ``such services encompass values associated with the
knowledge that such resources simply exist as well as associated with
the option to directly use or not use such resources in the future.''
Response: NOAA believes that a definition of nonuse values,
referred to as passive use values, is appropriate and therefore will
continue to include such definition. NOAA's definition of passive use
values is broad and therefore includes the notions included in the
second commenter's proposed definition.
``Oil''
Comment: One commenter contended that unless the material under
consideration is definitely a single hazardous compound derived from
processing oil, it should be classified as ``oil'' (e.g., diesel or
gasoline would be oil for this purpose). Another commenter believed the
definition seems practical and reasonable to focus on what has been
discharged and not on its degradation products. The commenter
recognized the potential for dual regulation (CERCLA and OPA) of one
discharge of oil due to the hazardous constituents contained in some
oils. The same commenter noted, however, that the proposed definition
is cumbersome.
Response: NOAA agrees that the definition of oil is cumbersome and
has revised it accordingly.
``Reasonable Cost''
Comment: One commenter urged NOAA to revise the definition of
``reasonable cost.'' Two commenters urged NOAA to adopt the
requirements in DOI's rule 43 CFR 11.14(ee). One of those commenters
requested adoption of DOI's rule provided it is modified to show that
the reasonable cost test applies to separable subparts of the
assessment, as well as the assessment as a whole. Another commenter
believed that this definition is circular and recommended the cost of a
natural resource damage assessment be reasonable in keeping with the
size of the discharge and type and amount of natural resource damages
to be determined. Another commenter believed the definition is
incomplete, stating that just because a cost can be recovered, does not
mean it is reasonable.
Response: NOAA agrees that the definition in the Advance Notice of
Proposed Rulemaking (ANPRM) is somewhat circular and has revised the
definition. The costs of the damage assessment are deemed reasonable if
the assessment is conducted in accordance with this proposed rule, or
if the costs are otherwise reasonable under the circumstances. NOAA
believes this definition is simpler than the DOI definition.
Comment: One commenter stated that making the definition of
reasonable costs contingent on a preliminary and probably inaccurate
estimate is unreasonable because scientists' present understanding of
the effects of oil pollution is limited. In addition, the full extent
of damages may not be apparent for several years following a discharge.
Response: NOAA's definition of reasonable cost avoids the problems
the commenter identified with respect to the difficulty of ascertaining
reasonable costs based on preliminary information.
``Responsible Party(ies)'' (RP(s))
Comment: One commenter noted that the proposed definition of
``responsible party(ies)'' is confined to ``person or persons.'' The
commenter noted the RP should include the company or corporate entity
that owns or is otherwise responsible for the vessel or facility that
contained the discharged material. The owner of the discharged material
perhaps should also be initially included until the investigation
ascertains responsibility.
Response: NOAA agrees and that definition has been modified in the
proposed rule.
``Restoration or Rehabilitation''
Comment: One commenter endorsed the existing DOI definition of
``restoration,'' as occurring once resources are capable of providing
baseline service levels. This definition is consistent with Ohio v. DOI
as well as OPA's legislative history, which revealed no Congressional
intent to alter that definition. Another commenter agreed that
restoration occurs when the resources are capable of providing the
``without spill'' service levels. One commenter urged NOAA to clarify
the definition as meaning ``measures to restore the services provided
by the affected resources.'' Another commenter agreed with the proposed
definition as encompassing all four management options set forth. The
same commenter, however, urged NOAA to state that these techniques
should be designed to achieve the best possible overall restoration of
resources. One commenter disagreed with grouping ``restoration'' or
``rehabilitation'' together. The commenter argued that ``restoration''
is commonly used as an inclusive term for restoration, rehabilitation
and replacement as all are in situ approaches. For example,
``replacement'' may mean reestablishing a population at the site.
One commenter noted the proposed definitions of ``restoration'' and
``rehabilitation'' appear to expand the measure of natural resource
damages to include restoration of both ``the injured resources'
physical, chemical or biological properties.'' Any attempt by NOAA to
expand the measure of damages to require restoration of the resources'
properties beyond what is necessary to restore their services would be
contrary to economic principles and inconsistent with the structure of
section 1006(d)(1) of OPA. The same commenter suggested the definitions
of ``restoration'' and ``rehabilitation'' should be refined to read
``measures adopted to return injured natural resources to the condition
where they provide the same or substantially similar services as they
would have provided if the spill of oil had not occurred.''
Response: NOAA agrees that the terms restoration and rehabilitation
should be defined separately. In the revised definition, NOAA
distinguishes restoration from rehabilitation. Restoration actions are
designed to return the injured natural resources and/or services to
baseline conditions. The baseline condition is measured in terms of the
physical, chemical, or biological properties of those resources and/or
services prior to the discharge. Rehabilitation refers to actions that
are designed to bring the injured natural resources and services to a
different state from baseline conditions, but still beneficial to both
the environment and public. NOAA agrees with the suggestion that
sometimes a combination of techniques would best serve the overall
goals of resource recovery. Under those circumstances, the trustee(s)
may consider a combination of restoration techniques.
``Restoration, Rehabilitation, Replacement and Acquisition''
Comment: One commenter noted the definitions of ``restoration,
rehabilitation, replacement, and acquisition of equivalent'' resources
that are set forth in the notice do not maintain the hierarchy of
choices and their interrelationship as contemplated by OPA.
Response: The OPA Conference Report specifies that acquisition of
the equivalent resources will be undertaken when the alternatives of
restoration, rehabilitation, and replacement of damaged natural
resources will be technically infeasible or grossly disproportionate to
the value of the resources involved. Discussion regarding the use of
any of these options is addressed elsewhere in the preamble and the
proposed rule.
``Technical Feasibility''
Comment: One commenter suggested the definition of ``technical
feasibility'' seems to preclude the implementation of new or innovative
strategies in restoration/rehabilitation efforts. The commenter
believed that nontraditional approaches should be explored where
appropriate. The commenter also recommended that these approaches
should be encouraged where there is mutual agreement among the
trustees. Another commenter believed the proposed definition of
``technically feasible'' is too stringent. Currently very few recovery
techniques are well known. The same commenter recommended the
definition be revised as, ``technical feasibility means those on-site
restoration actions that are deemed possible following appropriate
planning, implementation, monitoring, and necessary mid-course
corrections of a restoration project.'' The commenter also noted that
project costs shall not be a part of technical feasibility but may be
considered as part of the overall settlement for damages taking into
account technical feasibility of restoration, acquisition, or other
means to make the damaged resources whole over a reasonable period of
time.
Response: NOAA agrees that the definition of technical feasibility
is too stringent and has revised the definition accordingly.
``Trauma''
Comment: One commenter recommended the definition of ``trauma''
include all adverse, sublethal, chemical, physical and behavioral
changes to living fish and wildlife resources, including adverse change
in the presence and activity levels of enzymes and other vital
components of living systems, caused by a discharge of oil and
attendant necessary cleanup and response activities. Trauma may include
disruption of reproductive rate or reproductive cycles normally
associated with a species. As used within this context, the commenter
argued that trauma is an injury and should be included within the scope
of damages.
Response: NOAA does not agree that a separate category of injury
defined as trauma should be included in this proposed rule. The current
injury definition is broad enough to include much of what the commenter
is concerned about.
``Use Value or Values''
Comment: One commenter agreed with the definition for ``use value
or values'' under OPA in the March 13, 1992, Notice.
Response: The proposed rule no longer defines ``use value''
separately, but defines ``compensable values'' to incorporate all use
values, including direct and passive uses.
``Water''
Comment: One commenter recommended ``water'' in the definition be
revised to ``waters of the United States'' consistent with the
definition in the Clean Water Act.
Response: OPA defines ``navigable waters'' to mean the waters of
the United States, including the territorial sea. NOAA has adopted this
definition in the proposed rule.
``Wetlands''
Comment: One commenter recommended that ``wetlands'' be included in
the definition of ``natural resources.''
Response: NOAA has adopted the definition of natural resources from
OPA and believes that the definition encompasses wetlands. Therefore,
there is no need to revise the definition to specifically include
wetlands.
III. Recoveries
Section 990.14 identifies what is recoverable as damages. In
section 1006 of OPA, Congress clearly delineates the measure of damages
to include the costs (both direct and indirect) of restoring,
rehabilitating, replacing, or acquiring the equivalent of the injured
natural resources, the diminution in value of those natural resources
pending restoration, plus the reasonable costs of assessing those
damages. These damages are based upon injuries occurring from the onset
of a discharge of oil through the recovery period (including monitoring
costs), less any mitigation of those injuries by response actions taken
or anticipated, plus any increase in injuries that are a result of
response actions taken or anticipated. Damages may also include the
costs of emergency restoration actions and the reasonable costs of the
assessment, which includes the cost of performing the preassessment,
assessment, and post-assessment phases; administrative or legal or
other enforcement costs, including base and incremental costs, and
expenses necessary for and incidental to the preassessment, assessment,
restoration planning, and post-assessment (including salaries); any
restoration or replacement undertaken; restoration monitoring; mid-
course corrections, and interest on the amounts recoverable as set
forth in section 1005 of OPA. The period for which interest shall be
paid is the period beginning on the 30th day following the date on
which the claim is presented to the RP(s) or guarantor(s) and ending on
the date on which the claim is paid. Interest is to be calculated in
accordance with Section 1005 of OPA. The determination of the damage
amount shall consider any applicable limitations provided for in
section 1004 of OPA.
In accordance with section 1006(d)(3) of OPA, there shall be no
double recovery under this rule. Actions for damages and assessment
costs shall comply with the statute of limitations set forth in section
1017(f) of OPA.
Finally, this proposed rule clearly authorizes the trustee(s) to
settle claims without completing an assessment. The trustee(s) is
authorized to reach settlement with the RP(s) at any time following a
discharge; neither OPA nor this proposed rule requires that an
assessment procedure of any type be completed. However, the trustee(s)
should be mindful of the great public interest in many discharges of
oil and may provide the public an opportunity to review and comment
upon the settlement terms and/or the restoration component of the DARP
should the assessment not be completed.
Response to Comments
Recoveries
``Assessment Costs''
Comments: Several comments were received regarding the appropriate
definition of ``reasonable costs'' and to the extent that such costs
are recoverable. Many of these comments are addressed in the section
dealing with definitions within the rule. Others indicated that the
trustee(s) could capture many of the administrative costs by simple
bookkeeping, i.e., recording the number of man-hours, travel costs,
etc. Several commenters indicated that the individual study costs
conducted in the context of an assessment should only be recoverable if
the individual study costs are reasonable. Other commenters indicated
their preference for the overall approach, i.e., the total costs of the
assessment are anticipated to be less than the damages.
Response: NOAA agrees that the trustee(s) should document all
administrative costs. The costs of damage assessments are deemed
reasonable if the damage assessment is conducted in accordance with
this proposed rule or if the costs are otherwise reasonable under the
circumstances. However, the trustee(s) is required to conduct only
studies that will provide data directly relating to the purpose of the
assessment, to the extent practicable under the circumstances, and to
conduct those studies in a cost-effective manner. NOAA does not require
the trustee(s) to consider whether individual study costs are
reasonable so long as the trustee(s) meets the requirements specified
in the previous sentence. To determine reasonableness, the trustee(s)
should consider the overall costs of the assessment against the
expected recovery.
Comment: Some commenters requested that the costs of monitoring
during the Assessment Phase be recoverable.
Response: NOAA has specifically included monitoring costs in the
recoverable damages.
Comment: Several commenters suggested that recoverable costs should
include the costs of recovering damages.
Response: NOAA agrees that the costs of ``assessing damages''
includes the costs of recovering those damages.
Comment: Some commenters desired more clarification on recoverable
damages, specifically, whether the rule would allow recovery of funds
in excess of the costs of restoration plus the assessment cost.
Response: The proposed rule allows for the recovery of damages
required by OPA, namely: (1) The cost of restoring, rehabilitating,
replacing, or acquiring the equivalent of, the injured natural
resources and/or services pending restoration; (2) the diminution in
value of those natural resources and/or services pending restoration;
plus (3) the reasonable cost of assessing those damages. The recovery
of those three items is not excess recovery. The trustee(s) is to use
the money to restore, rehabilitate, replace, or acquire the equivalent
of the injured natural resources and/or services and to be reimbursed
for the reasonable costs of conducting the assessment. Any recoveries
that remain after implementing the restoration plan shall be deposited
in the Oil Spill Liability Trust Fund in accordance with section
1006(f) of OPA.
Comment: One commenter indicated that the costs of emergency
restoration are more properly classified as response costs and not
associated with restoration.
Response: NOAA agrees that the appropriate avenue of redress is
through the OSC's response structure, which may consist of simply
having the OSC approve the trustee actions and costs as removal actions
and costs. While these actions/costs are not strictly preassessment
activities, it is likely that such actions/costs will be taken while
the trustee(s) is conducting the preassessment and can be included in
the Preassessment Phase. In circumstances where the trustee(s) takes
emergency restoration to repair or replace habitat or resources, these
are technically restoration costs, but again can be claimed in the
costs of conducting an assessment. NOAA reminds the trustee(s) that
emergency restorations are the exception, not the usual course of
business. NOAA expects fully that close cooperation and coordination
with the response agency(ies) and the RP(s) will greatly alleviate the
need for emergency restoration.
Comment: One commenter noted several disadvantages in simplified
assessments, including the potential overlapping trustee interests in
certain natural resources, damages will not sufficiently reflect the
extent of the actual injury, and the risk that a compensatory
assessment could be transformed into a punitive exercise.
Response: NOAA notes that double recovery is prohibited to the
extent provided by section 1006(d)(3) of OPA. The simplified damage
assessment procedures produce calculations based on statistical
averages and will reasonably reflect the damages of the actual injury
in a timely and economical manner. Finally, NOAA disagrees with the
charge that simplified damage assessments are akin to punitive damages.
The computer models and compensation formulas generate damages based on
average restoration costs and average diminution of value of the
affected natural resources and are thus compensatory as authorized by
OPA.
``Coordination With Legal Counsel''
Comment: Commenters covered the possible range concerning the
appropriate involvement of legal counsel. Some indicated that attorneys
will slow down the assessment process while others indicated that
assessments are complicated legal processes that may involve a variety
of legal issues, including Freedom of Information Act requests and
coordination among federal and state laws, and that attorneys must be
involved in the process from the onset. Most commenters indicated that
a formal process for attorneys need not be identified in the rule. Some
commenters indicated that, since many assessments have been conducted
under the threat of litigation, attorneys have more say than the
scientists in the assessment process. One commenter suggested that
early involvement of attorneys leads to adoption of extreme positions
by both parties and encourages unnecessary and poorly designed studies
aimed at litigation, not restoration.
Response: NOAA has determined that there is no need to specifically
provide a role for either trustee agency counsel or attorneys
representing the RP(s) in the proposed rule. NOAA has attempted to
propose a rule that is scientifically driven, and not specifically
geared to the potential of litigation, even though that potential
certainly looms ever-present. As a practical matter, NOAA encourages
trustee agencies to keep their respective counsels informed of the
assessment and seek their advice in legal matters. It is expected that
the RP(s) will rely upon its attorney(s) for advice and counsel
throughout most assessments.
``Private Causes of Action''
Comment: Some commenters encouraged NOAA to specifically allow the
trustee(s) to recover for private causes of action under OPA. They
reasoned that often it is the government that is the most logical party
to recover for what are arguably ``private'' harms, i.e., increased
prices due to fishery closures, since the consumers would have no
mechanism to individually recover those damages. Another example cited
was recreational users, who would be unlikely to pursue individual
claims.
Response: Section 1002 of OPA provides specifically for damages
recoverable under OPA, including natural resources, real or personal
property, subsistence use, revenues, profits and earning capacity and
public services. However, although OPA states that a natural resource
trustee may seek recovery of damages for injuries to, or loss of use
of, natural resources, OPA gives the right of action for the other
types of damages to the actual users or owners of the property
affected.
``Punitive Damages''
Comment: Some commenters expressed the opinion that recoveries
under OPA should not include punitive damages.
Response: NOAA agrees fully. The proposed rule is designed to
assess compensatory damages for the injury to, and loss of use of
natural resources, their corresponding diminution in value pending
restoration, and the reasonable costs of conducting an assessment.
``Future Damages''
Comment: Some commenters suggested that the damage figure should
include an added amount to pay for cumulative unknown effects that
cannot be determined by the assessment, comparable to the Superfund
provision with respect to damages for unforseen future liability. One
of these commenters suggested that these damages could be used to carry
out additional research, monitoring, etc.
Response: NOAA does not believe that OPA requires damages for
unforeseen future natural resource injuries. Such recoveries may be
speculative in nature. However, for any particular discharge the
trustee(s) and RP(s) may agree, through negotiations, to establish an
escrow account to cover future effects, perhaps with unused sums
reverting back to the RP(s) after a specified amount of time.
``Limits of Liability''
Comment: One commenter stated that liability limits for oil and gas
extractive facilities should hold under OPA, except on cases of proven
gross negligence, willful misconduct, or violation of certain federal
stipulations.
Response: NOAA notes that the commenter is requesting a statutory
change, clearly outside the scope of this rulemaking.
IV. Assessment on the Record
Purpose
Section 1006(c) of OPA provides that the trustee(s) shall ``develop
and implement a plan for the restoration, rehabilitation, replacement,
or acquisition of the equivalent, of the natural resources under their
trusteeship.'' 33 U.S.C. section 2706(c)(1)(C), (c)(2)(B), (c)(3)(B)
and (c)(4)(B). Section 1006(c)(5), 33 U.S.C. section 2706(c)(5),
provides that ``plans shall be developed and implemented under this
section only after adequate public notice, opportunity for a hearing
and consideration of all public comment.'' Thus, Congress intended that
restoration plans be developed by the trustee(s) pursuant to an
administrative process that provides an adequate opportunity for public
participation in the selection of restoration measures. In accordance
with traditional principles of administrative law, NOAA is proposing to
implement these provisions by requiring the trustee(s) to document
development of draft assessment/restoration plans (DARP) in an
administrative record through notice and comment procedures.
The administrative record has four basic purposes. First, it
facilitates selection of restoration, rehabilitation, replacement, or
equivalent acquisition actions by providing a central repository for
scientific data. Second, it documents the relevant factors the
trustee(s) considered in selecting restoration actions. Third, it
facilitates public participation. Fourth, it provides the basis for
judicial review.
The DARP serves to document, for the administrative record, the
most appropriate restoration approach, with its estimated restoration,
rehabilitation, replacement, or equivalent acquisition costs for a
particular discharge. Therefore, the judicial review standard of
``arbitrary, capricious, or otherwise not inconsistent with law'' would
apply to determinations through the development of the restoration
approach. Once the restoration approach is developed, the trustee(s)
then can determine the expected interim lost resource values. It is
anticipated that the calculation of those values would not be included
in the administrative record. This approach is suggested in the
legislative history of OPA, which states:
Calculating the total measure of damages under this section will
ordinarily be dependent upon the development by the trustees of the
appropriate plans for mitigating the injury to those resources. This
is because the estimated cost of implementing the plans will be a
major component of the measure of damages. Therefore, the trustees
should, in sequence, conduct the necessary assessments, develop and
estimate the cost of implementing the appropriate plans, and
calculate the diminution in lost use and other values of the injured
resources pending restoration. At that point, the total liability of
a responsible party under this section can be calculated (Committee
of Conference Report No. 101-653; 101 Cong. 2d Sess. at 109 (Aug. 1,
1990)).
Content and Level of Detail
The administrative record must contain sufficient information to
support judicial review of the assessment. The administrative record
should contain all documents considered by the trustee(s) in selecting
assessment and restoration measures, including documents that support
options the trustee(s) ultimately rejected. Pertinent documents that
are timely submitted by the RP(s) or the public shall be included in
the administrative record.
The administrative record should be limited to final documents when
possible. For example, draft documents that are superseded by final
documents are not considered documents on which the trustee(s)
specifically relies and therefore are not included in the record. Where
no final document is available at the time of selection of assessment/
restoration measures, the draft may be included in the record if the
document contains information not found in other documents in the
record but which is considered by the trustee(s) in selecting a
restoration approach.
Pre-decisional, deliberative internal agency memoranda will
ordinarily not be included in the administrative record. Like draft
documents, however, portions of these documents may be included if they
contain information that is not included in other documents. Documents
relating exclusively to liability will ordinarily not be included in
the administrative record unless they are relied upon in selecting
restoration measures. The trustee(s) may maintain a confidential file
for materials in the administrative record that might be sensitive
(e.g., the U.S. EPA Superfund process allows for Confidential Business
Information to be maintained in a confidential appendix to the
administrative record for a Superfund remedial action). If the
restoration approach is challenged, the judge may review that
confidential information in camera, i.e., in the judge's chambers in a
confidential manner. Scientific data and other information concerning
damages to natural resources, however, may not be subject to a claim of
being Confidential Business Information. Scientific data that fail
appropriate quality assurance/quality control requirements should not
be included in the administrative record except where such data are
relied upon in some manner in selecting restoration measures.
Ordinarily, the record should include documents regarding the
nature of the discharge, preassessment determination, restoration
planning, the draft assessment/restoration plan, public comments,
response to public comments, transcripts of public hearings, if any,
relevant investigation reports, scientific studies, work plans, quality
assurance plans, engineering evaluations, decision documents, and an
index to the documents in the administrative record.
The volume of material compiled for the administrative record
should be consistent with the scope of the assessment/restoration.
Compilation of massive documentation for a minor discharge with limited
restoration measures would not be appropriate.
Certain types of information will be common to all assessments,
regardless of the type of procedure selected. Therefore, each
administrative record will contain: (1) Information considered in the
Preassessment Phase; (2) a copy of the DARP; (3) any comments received
in response to public review of the DARP, with the responses to those
comments; (4) a copy of the demand made to the RP(s), including the
Report of Assessment; and (5) the costs of conducting that assessment.
Other items included in the record will be specific to the particular
type of assessment procedure selected. For a Compensation Formula
assessment, in addition to the common items listed above, the
administrative record should include documentation of the information
requirements for use of the formula and identification of the formula
used. For a Type A assessment using one of the computer models
developed by DOI, the administrative record should include
documentation of the information requirements for the Type A model
listed in 43 CFR part 11, subpart D, and the computer printout of the
application of the Type A model. For an Expedited Damage Assessment
(EDA) or Comprehensive Damage Assessment (CDA) the administrative
record should include all documentation supporting the restoration
determinations required in the EDA or CDA. Determinations in EDA or CDA
may include, but are not limited to: the injury determination/
quantification component and the restoration component (specifically
including the test results of any and all methodologies performed in
these phases).
Post-decisional Documents
Occasionally, the administrative record may require supplementing
after finalization of the DARP. Supplements to the record may be
allowed if: the interested party(ies) did not receive actual or
constructive notice of the DARP and the opportunity to comment on the
plan; the information submitted does not duplicate information already
contained in the administrative record; and the information raises
sufficiently significant issues regarding the scope, effectiveness, or
cost of the plan as to warrant having the trustee(s) reconsider the
plan. If the trustee(s) supplements the administrative record with
documents submitted by the RP(s) or the public, the trustee(s) may also
add to the record other documents pertinent to the matters addressed by
the RP(s) or the public.
Post-decisional documents are generally not part of the
administrative record. However, where these documents result in
modification of the DARP, the administrative record should be
supplemented to include the post-decisional documents. Also, where the
DARP provides for the development of certain components at a later
date, the information or documents used to develop these components
should be added to the administrative record as they become available.
The trustee(s) has the discretion, of course, to modify the plan at
any time. However, the public will have the right to review and comment
upon modifications that are, in the opinion of the trustee(s),
significant.
Availability of the Record
To the extent practicable, the administrative record should be
compiled and made available for review as documents are generated or
received by the trustee(s). NOAA believes that public information is
critical to the credibility of assessments and restoration efforts.
However, the degree of public notice and involvement in the
administrative record will necessarily vary depending on the choice of
damage assessment procedures. NOAA is proposing that the administrative
record be open for public review and comment concurrently with the
DARP. The availability and review of the administrative record may also
be arranged in prespill planning conducted by the trustee(s).
Judicial Review
Under the Administrative Procedure Act, 5 U.S.C. 706(2)(A), review
of selection of restoration measures would be conducted on the
administrative record. Review on the record would address several major
concerns expressed by Congress in passing OPA. First, Congress mandated
public participation in restoration planning. Section 1006(c)(5) of OPA
requires the development and implementation of the restoration plan
``only after adequate public notice, opportunity for a [public]
hearing, and consideration of all public comment.'' A trial de novo
would circumvent public participation in the selection and
implementation of the restoration plan by allowing the litigants and
the court to make the decision as to the type of restoration approach.
In interpreting similar Congressional intent with respect to the
selection of remedial action under CERCLA, courts have held that a
trial de novo of selection of a response action is inconsistent with
meaningful public involvement in selection of remedies for hazardous
waste sites. A discussion of these cases was provided in Appendix III
of the ANPRM of March 13, 1992 (57 FR 8964, at 8987). Inherent in these
decisions is the recognition that the general public does not have the
resources or the procedural mechanisms to protect its interests in the
courtroom.
Further, a trial de novo of assessment/restoration measures creates
incentives for parties to withhold scientific data for use at trial.
One of the most significant criticisms of the EXXON VALDEZ case noted
by commenters was the unavailability of scientific data produced by the
parties to the litigation. By contrast, a public administrative process
should create the incentive to disclose scientific data. The government
will be required to publicly disclose its scientific data and
conclusions in the administrative record developed in connection with
the DARP. Other parties will be required to publicly disclose their
scientific data and conclusions in connection with the administrative
development of the DARP or risk waiving their objections to the plan
during judicial review.
Second, record review is necessary to carry out the Congressional
mandate that the trustee(s), as the resource manager(s) and expert(s),
select assessment/restoration measures. NOAA's interpretation of OPA
indicates that Congress intended the Restoration Plan be developed and
implemented by the trustee(s) pursuant to an administrative process,
not by a courtroom battle of experts. Adequate evaluation of the
complex scientific issues involved in assessment/restoration is more
likely to result from a public administrative process conducted by
agencies with specialized scientific expertise.
Finally, Congress emphasized that assessment of damages be
conducted at ``reasonable'' costs. By requiring the various parties
involved in an assessment to submit their findings to a central
repository, much duplicative study can be avoided. Limiting the review
of the assessment/restoration to the administrative record will greatly
reduce the transaction costs.
Administrative Record
Response to Comments
``General''
Comment: A majority of the commenters who spoke to the issue of the
administrative record and judicial review ``on the record'' supported
the concept. Several commenters noted that general administrative law
principles and case law prior to the Superfund reauthorization of 1986
supported record review of expert agency decisions on injury,
restoration, and economic assessments. One commenter explicitly stated
that the injury determination, restoration strategies, and economic
damage amount would receive both the rebuttable presumption and the
deferential standard of judicial review. Some commenters referred to
OPA's reference to the rebuttable presumption's use in ``any
administrative . . . proceeding,'' as well as OPA's provisions for
claims against the Fund in an administrative proceeding, as support for
NOAA's creation of an administrative process that would be granted
record review. Other commenters, however, objected to NOAA's attempt to
allow a standard of review that these commenters perceived to be
inconsistent with the rebuttable presumption. Finally, some commenters
stated that assessment studies and restoration planning within the
context of an assessment should not be made public unless record review
were granted.
Response: NOAA notes that the administrative record provisions in
the proposed rule are intended to implement several important policy
concerns expressed by Congress in OPA. NOAA has considered
administrative law principles and various comparable policies found in
CERCLA to be relevant to natural resource damage assessment process in
several areas. In both CERCLA and OPA, Congress has reflected the
public's concern over expeditious recovery of resources injured by
pollution. Further, in OPA, Congress has explicitly provided that
restoration measures be selected by the natural resource trustee(s)
through notice and comment procedures. Therefore, NOAA feels that there
is statutory authority to establish review on the record. The
administrative record provisions of this proposed rule are intended to
create an open assessment/restoration process to allow an objective
evaluation of how to restore or replace resources injured by discharges
of oil. Whether these provisions would result in ``record review'' is
ultimately the decision of the courts. However, NOAA feels that record
review is essential for the type of expeditious, fair assessments
called for by OPA. As discussed earlier in this preamble, judicial
review on the record would apply to the entire assessment process with
the exception of the determination of the compensable value component
of damages. Finally, NOAA points out that the ``rebuttable
presumption'' is not a standard of review.
``Advantages''
Comment: Many of the commenters pointed out that an administrative
record would avoid the costs associated with a protracted trial de novo
and result in a more timely restoration of the affected resources. Many
of these commenters also noted that an administrative record of an
assessment would allow for the availability of scientific information
on the effects of oil and the efficacy of various cleanup strategies.
Others pointed out that this process would, in effect, allow for peer
review of assessments. Quite a few commenters noted that limiting
judicial review to the administrative record of the assessment would
facilitate the Congressional goal that the agency, as the organization
with the expertise, undertake the assessment as well as the
restoration. Some commenters noted that creating an administrative
record would ensure a more fair and objective process by encouraging
participation by the public and the RP(s). One of these commenters
pointed out that having such an open process would avoid the public
distrust that results from secrecy. Another commenter noted that an
``open record'' would foster a more cooperative process that could
avoid having litigators shield assessment studies and having scientists
conduct unnecessary research. Finally, a few commenters were pleased to
see an assessment/restoration process that is similar to the Remedial
Investigation/Feasibility Study process in Superfund with which so many
agencies are familiar.
Response: NOAA agrees with the advantages of an administrative
record process outlined by these commenters. In particular, creating an
open process that facilitates access to the science in the restoration
process is an important advantage. An open process will also allow
consideration of a wider range of views. Finally, NOAA relied upon,
with some modification, the NCP's administrative record provisions
since those provisions have already undergone extensive rulemaking
development and are somewhat familiar to most trustee agencies.
``Disadvantages''
Comment: Some commenters stated that an administrative record
requirement would result in a slower and more costly assessment process
and could seriously prejudice the ability of the trustee(s) to
negotiate a settlement. One of these commenters stated that the
requirement could overwhelm the ability of the trustee(s) to conduct an
effective assessment. Another commenter noted that such an open record
may allow parties to influence the results of the assessment and skew
the economic data gathered. Some commenters noted that outside
information submitted to the record is strictly advisory in nature, and
not controlling upon the trustee(s). Yet another commenter warned that
a court could decide to conduct a trial de novo anyway, which could
make the trustee(s) vulnerable. Finally, one of these commenters noted
that the RP(s) could totally disrupt the process.
Response: NOAA does not intend an administrative record requirement
that would add to the time and/or expense of a damage assessment. The
preamble discusses the requirement that the administrative record be
tailored to the scope of the assessment. The fact that materials
submitted ``for the record'' would be intended to influence the
assessment in a particular way is inherent in an open record. However,
the trustee(s) is given responsibility to manage and consider the
record in a manner that is consistent with the reasonable cost
requirement of the proposed rule, using best professional judgment.
With respect to the possibility that the courts might not uphold record
review for restoration, NOAA believes that this is unlikely, given the
statutory language. Because lack of record review would undercut a
number of the policies underlying the use of an administrative process
for selection of restoration measures, NOAA would review the process as
a whole if record review were not upheld by the courts.
Comment: Several commenters expressed concern regarding the
involvement of the RP(s) in the administrative record. One of these
commenters noted that, since the trustee(s) compiles the record, the
RP(s) has no incentive to disclose information that the trustee(s)
might decide to exclude from the record. Another commenter stated that
due process for the RP would require judicial review of the findings
and conclusions of the trustee(s), particularly in a tort type action.
Response: NOAA notes that under general principles of
administrative law, the RP(s) will be entitled to submit relevant
material to the administrative record if timely submitted. The
reviewing court will examine the documentation of the assessment/
restoration process for any significant omissions.
``Scope''
Comment: Several commenters spoke to the issue of the scope of the
administrative record of assessment. Some of these commenters stated
that the administrative record should include all data and information
gathered for the assessment. One commenter pointed out, however, that
confidential information gathered by the RP(s) for use in litigation
should not be included. Other commenters also noted that information
pertaining to liability, that may be litigated as a separate issue,
would not go into the record.
Response: NOAA notes that, with few exceptions, all data and
information considered by the trustee(s) in selecting restoration
measures would be contained in the record. Also, participants in an
assessment must recognize that any document that is put into the record
is in fact ``public.'' The RP(s) is free to decide whether to submit
information for the record, at the risk that, if he does not do so, the
information may not be considered when the court reviews the
assessment/restoration plan.
Comment: Other commenters noted specific questions regarding the
administrative record. One asked if (1) any documents could remain
confidential; (2) all data required by the trustee(s) must be given to
the RP(s) and the public; (3) chain of custody procedures would apply;
and (4) deliberative documents would be subject to FOIA. Another asked
that NOAA clearly identify the kinds of documents to be included in the
record, the requirements for public access and comment, and the type of
scientific basis for decisionmaking. Finally, one commenter suggested
that additions to the record after closure of the public comment period
should be carefully and narrowly defined.
Response: NOAA has noted the requests for specific information on
the types of documents to be included in an administrative record. The
general discussion in the preamble above lists examples of documents
that would be included or excluded in an administrative record.
Generally, those documents releasable under FOIA would be included in
the administrative record. Those documents not releasable under FOIA
would be excluded. The preamble and proposed rule provide guidance as
to what types of documents would be allowed into the record after the
public review period is closed.
``Components''
Comment: Some commenters stated that all documents relied upon by
the trustee(s) should be placed in the administrative record. One
commenter provided the following as examples of what should be included
in the administrative record: (1) Scientific data collected, generated,
and analyzed during the assessment; (2) the determination of scope of
injury; (3) comments and data provided by the public and the RP(s), and
the consideration of that information by the trustee(s); and (4)
relevant facts relied on in selecting the restoration plans and
calculating the damages.
Response: NOAA agrees that all documents and data forming the basis
for the selection of restoration measures, including these in each
phase of the assessment leading up to the development of a restoration
approach should be placed in administrative record. Additional data and
comments that are timely submitted by the RP(s) and the public should
also be included in an administrative record. Guidance for
documentation is provided in this preamble.
``Additional Components''
Comment: One commenter noted that its state open records law would
apply to the administrative record if maintained by a state trustee and
that the record requirements are broader than those suggested by NOAA.
The commenter noted that the state law requires that the following
types of documents be made available for public review: (1) Draft
documents; (2) pre-decisional, deliberative internal agency memoranda;
and (3) scientific data generated by the state or a contractor and in
the possession of the state regardless of whether it fails quality
assurance. The commenter noted, however, that documents relating
exclusively to liability, if prepared by or for an attorney under
client privilege, can be excluded from public view.
Response: NOAA recognizes that some state laws may require broader
availability of documents than what is described in this proposed rule
for the administrative record. If a state has additional requirements
for public availability of documents beyond those outlined in this
proposed rule, the state requirements may apply to state trustees.
NOAA's proposed rule describes the minimum requirements for public
review for the various types of assessment procedures. It should also
be noted that because record review of restoration measures selected by
federal trustees alone or jointly with state trustees is premised upon
the requirements of the federal Administrative Procedure Act, selection
of restoration measures by state trustees alone may be subject to
different principles of judicial review.
``Conditions''
Comment: Several commenters stated that their agreement with a
record review standard was conditional upon having the review available
for the assessment and restoration selection/cost decisions, but not
for the calculation of economic damages. These commenters stated that
the economics determination should then be entitled to the same
protection as other work product until trial. One commenter noted that
the legislative history of CERCLA (relevant to OPA) makes it clear that
Congress, by stressing the restitutionary nature of natural resource
damages, intended at least the selection of restoration plans to be
reviewed by the court on an administrative record.
Response: NOAA believes that the statutory language clearly
contemplates record review of selection of restoration measures. The
availability of record review for all aspects of the damage assessment
is less clear. The proposed rule provides for an administrative record
process only for those aspects of the assessment leading to selection
of restoration measures, including the estimate of the costs of such
measures. NOAA solicits comment on whether the administrative record
provisions should be extended in the final rule to other aspects of the
damage assessment.
Comment: Other commenters agreed with the open record so long as
the rule ensured that the RP would be given a joint and meaningful role
in the assessment. These commenters stated that the integration of the
open record with the later proposed ``jointly conducted, phased
assessments'' with responsible parties, would be essential.
Response: NOAA agrees that the RP(s) would play a major role in the
development of the administrative record for the assessment/restoration
process. As noted in the section of this preamble on cooperative
assessments, NOAA strongly encourages joint work with the RP(s). Also,
the administrative record process will work more smoothly where there
is a joint assessment in progress. However, there will undoubtedly be
instances where such joint efforts will not be possible. In those
cases, the administrative record is even more important, because it
gives both the RP(s) and the public the opportunity to provide material
for the administrative record, and it will require the trustee(s) to
address that material if relevant.
``Time of Review''
Comment: Another commenter stated that the record of assessment
actions should be final only after the trustee(s) has determined
damages and selected a restoration approach. Some commenters stated
that NOAA should consider the applicability of the concept of
``preenforcement review,'' which would allow selection, possibly
implementation, of the Restoration Plan without first having to prove
its validity in court.
Response: NOAA notes in its general discussion above that review on
the record would generally take place in an action to obtain damages.
Prior to this time, there would be no final agency action subject to
review.
``Levels of Documentation Required''
Comment: One commenter noted that, even where there is an expedited
damage assessment conducted, an administrative record should be
compiled to provide at least some information for public review.
Response: NOAA notes that, in the general discussion of detail of
an administrative record, documentation requirements would have to be
tailored to the scope of the case. In all cases other than emergency
restoration actions, however, final restoration measures would be
selected only after public review and comment.
``Support--Legal Arguments''
Comment: Several commenters noted that natural resource damages are
not measured by the traditional common law methods. These commenters
pointed out that these assessments involve highly technical, scientific
findings in which courts have traditionally treated the agency's
determination with great deference. A few of these commenters suggested
that the federal courts have neither the time nor the expertise to
decide these scientific issues. Therefore, the commenters conclude that
judicial review of the assessment/restoration plan should be conducted
on the administrative record, applying an arbitrary and capricious
standard.
Response: NOAA agrees that courts generally defer to agency
expertise in cases involving highly technical or scientific content.
For this reason, NOAA agrees that review of restoration measures, which
involve highly technical judgments, should be on the record.
Comment: Some commenters spoke to the issue of consistency with the
provisions for claiming natural resource damages against the Fund.
These commenters pointed out that, in presenting such a claim against
the Fund, the trustee is entitled to a rebuttable presumption of
correctness. The United States is then subrogated to the rights of the
trustee in pursuing the claim against the RPs. It follows that the
documented determination of injury, selection of restoration plans, and
calculation of the costs to assess, restore, and compensate for lost
use/nonuse value by the trustee is the only available evidentiary basis
on which the United States can proceed in court on behalf of the Fund,
to recover the damages paid out to the trustee(s) from that Fund. The
commenters then argue that the same standard should apply to
assessments reviewed by courts.
Response: NOAA agrees that consistency in the implementation of a
statute is a desirable goal. If there were two standards for
determining compensation for injuries to natural resources under OPA,
expensive and confusing assessments would result. Accordingly, the same
standard of review would apply to restoration in actions by the OPA
fund as to actions by the trustee(s).
Comment: Other commenters noted that, where the right to sue for
damages to private property existed at common law through a tort
action, the public's right to sue for restitutionary money to make an
injured environment whole did not exist. These commenters pointed out
that all components of natural resource ``damages'' (as defined under
OPA) are restitutionary in nature including quantification of lost use/
nonuse values. The commenters suggested that, when Congress creates a
public right by statute that did not exist at common law (such as the
ability to seek money to make whole an environment injured by an oil
discharge), it may entrust the determination of such public rights to
an administrative body. Therefore, the commenters argued that the right
to trial by jury for common law damages would not present an obstacle
to record review of a damage assessment.
Response: NOAA notes that Congress, in the legislative history of
CERCLA and OPA, pointed out problems with pre-CERCLA common law actions
for damages to public resources. This concern resulted in the set of
environmental statutes specifically allowing recovery by a public
government agency for damages as compensation for injuries to natural
resources. Because natural resource damage claims are essentially
restitutionary and because Congress has required that trustees (rather
than courts in the first instance) select a restoration approach and
compute damages to natural resources, NOAA agrees that the right to a
jury trial would not apply to damage actions under OPA. Further, most
OPA actions are likely to be brought in the courts' admiralty
jurisdiction, where there is no right to jury trial.
Comment: Several commenters noted that NOAA has the authority to
declare that judicial review of damage assessments would be on the
administrative record since there was no explicit statement as to the
standard of review in OPA. These commenters pointed out that, where the
legislative delegation to an agency on a particular question is
implicit rather than explicit, a court will generally defer to a
reasonable interpretation made by the agency.
Response: NOAA agrees that Congress' directions to NOAA were not
explicit as to the type of judicial review to be accorded to damage
assessments. However, the legislative history does note that this
proposed rule is to create a system of damage assessment that is
expeditious and fair. The report of the Committee of Conference states
that these regulations ``should be designed to simplify the trustees'
task of assessing and recovering the full measure of damages resulting
from an incident.'' See H. Con. Rept. No. 653, 101st. Cong., 2d Sess.
at 109 (1990). NOAA feels that providing for record review of damage
assessments is necessary to achieve this goal. Further, while the issue
of the standard of judicial review will ultimately be decided by the
courts, NOAA believes that, as the agency charged with implementing the
natural resource damage provisions of OPA, its views should be entitled
to some deference.
``Against--Legal Arguments''
Comment: Several commenters stated that the RP has the legal right
to a jury trial in natural resource damage assessment disputes as
guaranteed by the United States Constitution. The commenters pointed
out that a damage assessment is not a rulemaking under section 553 of
the Administrative Procedure Act, but is similar to an adversarial
administrative activity that will often result in litigation. The
commenters argued that every CERCLA natural resource damage case that
has addressed the issue has required a jury trial for these actions at
law. These commenters stated that issues related to the selection of
assessment/restoration plans must be decided by a trial court.
Response: As stated in the above discussion, the due process rights
of the RP(s) will not be sacrificed in the administrative record
process. While a few district courts have held that there is a right to
jury trial for the lost compensable value aspects of CERCLA natural
resource damage cases, at least one court has held that there is no
right to jury trial for the restoration aspects of natural resource
damage cases. Further, even if there is a right to jury trial, NOAA
does not perceive a conflict between a non-jury record review of
restoration measures and cost estimates under the ``arbitrary,
capricious, or otherwise not in accordance with law'' standard, and a
jury trial on other issues.
Comment: Some of these commenters spoke to the issue of the
rebuttable presumption in relation to record review. Some commenters
suggested that a court should review the choice of restoration
alternatives by the trustee(s) on an ``arbitrary and capricious''
standard, i.e., the trustee(s) is presumed to be correct unless it can
be proven that the trustee(s) acted in an arbitrary or capricious
manner. Other commenters argued that Congress would not have offered
the favorable rebuttable presumption as a standard of review if the
trustees had any underlying entitlement to the ``arbitrary and
capricious'' standard. The commenters contended that Congress was
attempting to offer the trustee(s) the slightly more favorable review
standard of a ``rebuttable presumption'' as an incentive for trustees
to follow the regulations; failure by the trustee(s) to follow
regulations apparently results in their having to prove their case, by
a preponderance of the evidence, on the de novo review standard.
Reconciling the congressional provision of a ``rebuttable presumption''
with the Administrative Procedure Act's arbitrary and capricious
standard of judicial review would require that, to rebut the
presumption, the RP would have to point to clear and convincing
evidence in the aforementioned administrative record demonstrating that
the injury determination, restoration selection, or monetary
quantification by the trustee(s) was arbitrary and capricious.
Response: The selection of restoration alternatives by the
trustee(s) for a particular incident will either be identified during
prespill planning as part of a Regional Restoration Plan (see the
discussion of Sec. 990.16) or in an incident-specific restoration plan
developed for that incident. NOAA agrees that the ``arbitrary,
capricious, or otherwise not in accordance with law'' standard of
judicial review for that choice is appropriate. NOAA points out that
the rebuttable presumption is a rule concerning level of evidence, not
a standard of review. Therefore, the statutory provision for a
rebuttable presumption for the damage assessment as a whole does not
preclude the development of an administrative record for the assessment
through restoration components of a damage assessment. There is no
reason why different aspects of the assessment cannot be subject to
different standards of review, which is precisely what the language of
OPA appears to require.
Comment: Several commenters stated that NOAA had exceeded its
statutory authority in declaring record review of assessments. These
commenters contended that Congress was not silent on the issue of the
standard of review. These commenters contended that Congress did not
delegate to NOAA the authority to determine the standard of review a
court will apply when considering a trustee's natural resource damage
claim filed before the court. These commenters pointed out that, in
section 1006(e)(2) of OPA, Congress specified that: ``Any determination
or assessment of damages to natural resources for the purposes of this
Act made * * * by a * * * trustee in accordance with the regulations *
* * shall have the force and effect of a rebuttable presumption. * *
*'' In contrast, the commenters pointed out that OPA's directive to
NOAA for promulgating regulations is limited to the assessment of
damages. OPA contains several provisions that address the procedure for
the trustee(s) to file a claim(s) against the RP(s). These commenters
stated that the issue of the standard of judicial review is determined
by the Congress and courts, not by regulation, and that NOAA should not
attempt to preempt judicial resolution of that issue.
Response: NOAA agrees that the ultimate decision as to the standard
of review for a damage assessment is for the courts. Nevertheless, NOAA
believes that its mandate to develop an assessment process that is both
fair and expeditious requires it to provide its views on the
appropriate standard of review, since this has crucial implications for
the assessment process. As noted above, administrative record review is
contemplated by OPA's requirement for selection of restoration measures
based on notice and comment procedures. Further, this position is
supported by the courts' consistent interpretation of CERCLA's
provisions with respect to lead agency selection of a response action
for a Superfund site. While the issue of the appropriate standard of
review is ultimately for the courts, NOAA's views on the interpretation
of the statute should be entitled to some deference.
Comment: Some commenters noted that NOAA might wish to explore the
possibility that non-RP challenges to an assessment/restoration plan
would be subjected to more limited judicial review.
Response: Provided that the non-RP has standing and right to sue,
NOAA notes that, to ensure fairness in implementation of OPA, the same
standard of review should apply to all who seek judicial review of
trustee's(s') actions.
``Miscellaneous''
Comment: One commenter noted that, while the rule might provide
that changes in plans or decisions predicated upon public comments
should not be available for critical use against an assessment in
administrative or court proceedings, a trustee who changes a decision
or plan because of public comment should be able to defend that change
easily on facts and reasoning, and thus will not feel a constraint to
defend a wrong initial determination.
Response: NOAA agrees that a trustee who changes initial findings
or plans based upon later information gained through public comment
would simply document that change in the administrative record. One of
the crucial advantages of an administrative process is the incentive
created for disclosure and public participation. The trustee(s) will be
required to disclose information relevant to selection of restoration
measures in a public record, and the trustee(s) will be required to
fairly evaluate public and RP comments in selecting restoration
measures. Based on NOAA's experience in numerous cases, it expects that
public comment will be seriously considered by the trustee(s) and in
some cases may lead to significant modifications of proposed
restoration measures.
Comment: One commenter stated that NOAA should seek to ensure that
scientific studies are conducted openly, with full and rigorous
scientific peer interaction and review, to avoid a trustee expending
large sums of money non-competitively on poor quality science that will
not withstand scientific scrutiny.
Response: NOAA believes that an administrative process is the best
method of ensuring thorough review of restoration by both the
scientific community and public.
V. Prespill Planning
General
In many discharges, multiple trustees have been able to reach
agreement on coordinating assessment and restoration activities. In
light of that experience, the proposed rule strongly encourages
federal, state, tribal and foreign trustees to develop prespill plans
at the local area or regional level. In a corresponding effort, these
plans might be implemented through a general Memorandum of
Understanding (MOU) among trustees on a state level for the state
trustee(s), and local area or regional basis for the rest of the
trustee(s).
This proposed rule includes, in Appendix A, a sample MOU that has
been reviewed in an earlier Notice, that could establish a coordination
framework for trustees for prespill planning. Trustees could develop
MOUs with provisions for specific areas such as bays, ports, waterways,
or areas of special sensitivity concerns.
To the extent practicable, it is strongly encouraged that this
planning process mirror the areas covered by Area and/or Regional
Contingency Plans authorized by section 4204(a) of OPA under the NCP or
could be on a state-by-state basis. The trustees should establish
working groups at the regional or local area level to undertake these
activities.
Prespill Plans
Without regulating the exact contents of the plans, the proposed
rule notes that the plans should identify the responsibilities of the
trustees, and other willing participants where appropriate, in the
event of a discharge of oil covered by OPA. Suggested prespill planning
activities include, but are not limited to, the following areas:
1. Develop a natural resource damage assessment management and
technical team. The natural resource damage assessment team is
responsible for planning and conducting damage assessments in the event
of a discharge of oil. The size of the team should be a function of the
scope and complexity of the assessment, and may include a natural
resource trustee agency coordinator, resource biologist, environmental
(petroleum) chemist, resource economist, restoration expert, QA
specialist, data manager/sample custodian, statistician, and resource
attorney. It is not always necessary to have a different person for
each role, but experience has shown that each role is a full-time
commitment, especially for highly significant discharges. Each person
on the team, to the extent relevant to his or her own discipline,
should have a working knowledge of natural resource damage assessment
regulations and requirements, and be ready to begin preassessment
activities immediately upon notification of a discharge. The team
should not be ad hoc; members should be knowledgeable in natural
resource damage assessment issues and have established working
relationships with each other, the co-trustees, and the response
community.
2. Identify outside experts. Since discharges of oil are sudden and
episodic, it is not always possible to maintain sufficient staff to
conduct all natural resource damage assessment activities. Depending on
the discharge conditions, the trustees will need different experts on
the team to assist in designing and conducting of studies for different
natural resources and/or services. The trustees should identify the
types of natural resource damage assessment expertise needed if there
is a discharge in their area, and prepare a list of potential contacts
available to provide that expertise. Experts without conflicts of
interest should be used as an independent peer review group for
potential natural resource damage assessment activities.
3. Identify support services. Certain support services, such as
analytical and testing laboratories capable of performing the
specialized hydrocarbon chemistry, toxicity testing, and histopathology
needed for a discharge of oil natural resource damage assessment,
should be identified ahead of time. Backup services should also be
identified since the needs of both response and damage assessment
activities can exceed even regional capabilities. Support activities
conducted at the discharge site or potentially affecting any response
activities must be coordinated with the OSC or designee. Other types of
support services that may be needed include:
a. Field support for reconnaissance surveys by aircraft or vessel;
b. Monitoring logistics for sample collection, handling,
preservation, storage, and transport;
c. Data management support;
d. Human health and safety support; and
e. Natural resource damage assessment training support.
4. Collect information on natural resources and/or services
potentially affected by oil discharges along high risk areas. Area
Planning Committees are responsible for the identification of sensitive
natural resources and/or services in their areas, and development of
protection priorities and strategies for these resources and/or
services. The trustee(s) is encouraged to serve on these committees to
ensure incorporation of all special concerns and considerations, and
ensure consistency with the natural resource damage assessment Prespill
Plans. Examples of issues include the seasonality of natural resources,
along with unique protection approach questions, the overall
effectiveness of cleanup countermeasures and effect versus natural
recoveries, etc. These types of response issues are addressed in the
Fish and Wildlife and Sensitive Environments Annexes to Area
Contingency Plans (ACP). Besides having an opportunity to assist in
creating and updating the ACPs, the trustee(s) is also given an
opportunity to comment when those ACPs are submitted to the Regional
Response Team (RRT) for review. The trustee(s) conducting damage
assessment should coordinate with response personnel on issues
affecting natural resources and/or services; clarifying the anticipated
activities and roles of each during the discharge, and identifying the
data needs of the trustee(s) that could be implemented through joint
activities. Strategies for data sharing among the trustees, response
agencies, and possibly the RPs, should be developed. This is
particularly important since damage assessment data are often not made
immediately available to the public. The trustee(s) is encouraged to
participate in training and coordination activities of the response
community, such as drills for the discharge of oil.
5. Lead Administrative Trustee (LAT). Whether planned in advance
of a discharge or not, when assessments involve more than one trustee,
trustees should select a LAT, although the proposed rule does not
require that a LAT must be selected. The selection of a LAT should be
by consensus and can be based on such factors as the trustee with a
majority of natural resources at risk or the ability of a particular
trustee agency to provide administrative support. While the federal
trustees are required to select a LAT under E.O. 12777, 56 FR 54757
(October 22, 1991), this proposed rule does not require that the LAT be
a federal agency when non-federal trustees are involved. In such cases,
the federal trustees will still select a federal LAT, who will
coordinate federal efforts with the LAT. Where appropriate, trustees
may designate Co-LATs, consisting of a federal LAT and the state,
tribal, or foreign trustee(s). It is also possible that, under certain
circumstances, it might be appropriate for the LAT to be a single non-
federal agency.
The LAT will not have veto or arbitration authority over the other
trustees, but should be responsible for activities such as: scheduling
meetings of the trustee working group or committee, preparing agendas,
procuring space, etc.; acting as a central contact point for damage
assessment trustee agencies involved in the incident, liaison with the
appropriate OSC or designee; coordinating preassessment data gathering
and other activities; and establishing and maintaining the
administrative record, as well as other records, for the trustees.
6. Identify sources of information for background data. The
trustees should develop lists or databases on the types of background
information currently collected that may be of potential use in a
natural resource damage assessment. If practicable, the trustees should
identify and prioritize the most important information, and encourage
or support the collection of such information in a cost-effective
manner. Types of information considered potentially important include:
petroleum hydrocarbon contamination in indicator organisms and exposure
pathways; species census and inventory, baseline data on species
populations, recreational use statistics, and economic values for
selected natural resources and/or services. Familiarity with the types
of baseline data available will allow the trustees to formulate better
data collection strategies. The trustees should also collect
information on successful restoration efforts for trust resources and/
or services, and needed restoration efforts in their region.
7. Design a general approach and develop protocols for data
collection and analysis. The trustees may want to develop scenarios for
the types of natural resources and/or services that may be affected by
a discharge of oil, and plan for an appropriate study design, including
data collection and analysis protocols. Where practicable, protocols
should be similar to those used in baseline studies to ensure
comparability with the incident-specific assessment. The trustees
should prepare standard protocols in a format that allows easy
customization for a specific discharge. With prespill planning, initial
damage assessment efforts may be better-implemented and generate more
useful data. The trustees should prepare field kits for collection of
samples and measurements in the early or emergency stages of a
discharge.
8. Establish a centralized data management system for natural
resource damage assessment data. There is a pressing need to have a
data management plan in place that provides efficient access to
collected data following a discharge of oil. Typical natural resource
damage assessment studies are highly multidisciplinary, involving
experts from many different organizations, who need access to data
collected by various groups. For example, wetlands specialists studying
injury to oiled marshes should use the same degree-of-oiling
classifications as mapped by shoreline survey teams. The trustees are
encouraged to develop a centralized data management system to support
natural resource damage assessment needs. At a minimum, the plan should
address the type and volume of data, uses of the data, existing data
management capabilities, types of analyses conducted, QA needs,
reporting requirements, and access to data. The data management plan
should also include provisions for distribution of updates to natural
resource damage assessment team members on a timely basis.
Regional Restoration Plans
Restoration plans have typically been directed towards a single
resource (i.e., species or habitat type). In recent years for example,
projects have focused on the preservation of rare and endangered
species. The resource by resource management approach tends toward a
never ending cycle of salvage operations. There is now a concern for
maintaining and conserving genetic diversity. This goal requires that
healthy, viable populations be maintained in the environment in which
they co-evolved. The essential argument is that the community is the
level of hierarchy needed to maintain the level of ecological
diversity, ensuring the conservation of threatened/endangered species,
gene pools, species diversity, natural community interactions, and
known and unknown ecosystem species and processes.
Since human values arise from the attributes that are naturally
scaled to the region, it makes sense that such a regional perspective
be considered. Regional evaluation can be addressed through the
consideration of five technical issues; (1) spatial boundaries (i.e.,
size of the study required to encompass the range of resources of
concern); (2) time scale (i.e., timeframe or lifecycle of the
resources); (3) ecological complexity (i.e., identification of
ecosystem components based on habitat structure and/or function); (4)
ecosystem pattern (i.e., patch size, continuity and contiguity); and
(5) increment of the environmental change (i.e., setting goals and
limits to restore the resource base). This follows from the proposed
approach by Gosselink, J.G. and L.C. Lee, CUMULATIVE IMPACT ASSESSMENT
IN BOTTOMLAND HARDWOOD FORESTS; Center for Wetland Resources, Louisiana
State University, Baton Rouge; LSU-CEI-86-09 (1987). The area of
concern should be evaluated relative to its importance and significance
to the regional resource base as well as the special status of the
area's components.
Where appropriate, the trustee(s) can develop, as part of the
prespill planning, such Regional Restoration Plans. These plans could
be developed on geographical or habitat basis to allow the recovery of
the system covered by the plan. The trustee(s) may develop these plans
as new efforts, but are encouraged to use existing plans that can be
modified to meet the needs of this proposed rule. Examples of
preexisting plans are Coastal Zone Management or the National Estuary
Program Plans. To qualify as an appropriate Regional Restoration Plan
pursuant to this proposed rule, a plan would have to be developed, or
an existing plan modified, through a public review and comment process
consistent with the restoration planning process described in subpart G
of this proposed rule. Recoveries from damage assessments pursuant to
this proposed rule may be applied to these plans, as provided in
Sec. 990.84(b) of this proposed rule. Coordination with Response
Agencies: OPA covers inland navigable waters as well as coastal areas.
From a federal perspective, as a general rule, the U.S. Coast Guard
directs response activities in the coastal zone including the Great
Lakes. The U.S. EPA directs response activities in the inland zone. See
NCP, 55 FR 8815, 8816 (March 8, 1990). State response agencies may also
direct response activities.
Effective coordination with the response activities necessitates
that coordination procedures be established prior to a discharge. This
proposed rule strongly encourages the trustee(s) to plan and coordinate
damage assessment activities prior to a discharge. Similarly, the
trustee(s) is encouraged to either develop prespill agreements with the
OSC, participate in the OSC's Area Committee planning meeting, and/or
attempt to include the OSC in general prespill planning. Agreements or
joint plans should address, but are not limited to, the following
issues: establishment of communication roles; identification of a
damage assessment trustee and OSC contact; human health and safety
requirements; development of joint activities, i.e., sampling, spill
drills; identification of natural resources of particular concern; and
information and data sharing. These issues can be facilitated by the
NOAA Scientific Support Coordinator in the U.S. Coast Guard District.
Such coordination has already effectively taken place in the
development of the Fish and Wildlife and Sensitive Environments Annexes
to the ACPs being developed as part of the NCP. Section 311(d)(2)(M) of
the Clean Water Act (CWA), as amended by section 4201(b) of OPA,
requires the development of a fish and wildlife response plan, and
section 311(j)(4)(B)(i) and (ii) of the CWA, as added by section
4202(a) of OPA, calls for preplanning in area committees to include
concerns for sensitive environmental areas as well as fisheries and
wildlife.
The trustee(s) recognizes that the OSC should not be unduly
hindered by the trustee's(s') requests for use of equipment and/or
information. Conversely, response agencies also recognize the
trustee(s) as a potential source of information for damage assessment
activities.
Coordination With the Public
OPA requires public notice, opportunity for a hearing and
consideration of all public comments prior to implementation of the
restoration plan. NOAA, however, does not believe that public
involvement should always be limited to the restoration plan alone.
NOAA is of the opinion that because the natural resource damage
assessment process will be enhanced by public comment, the trustee(s)
may provide for public review of the natural resource damage assessment
component in addition to the restoration plan. The proposed rule,
therefore, urges the trustee(s) to provide the public with an
opportunity to review and comment on prespill plans discussed elsewhere
in this preamble as well as to comment on the natural resource damage
Assessment Restoration Plan. Additional public involvement, i.e.,
oversight or advisory committees, open trustee meetings, etc., will be
at the option of the trustee(s). The scope of public participation in
meetings would be advisory, not as voting membership. NOAA is also
ensuring public involvement and information through the requirement for
an administrative record for assessments.
Response to Comments
``Coordination--General''
Comment: All of the commenters who spoke to the issue of
coordinated assessments agreed that all natural resource trustees
should coordinate their damage assessment activities among themselves
and with other interested parties. Many of these commenters supported
NOAA's efforts to encourage prespill planning to accomplish this
coordination. One commenter stated that there should also be strong
incentives for trustee coordination, the implementation of MOUs, and
the development of local and regional assessment protocols. Other
commenters urged NOAA to develop detailed guidance as to how
coordination might occur and explicit details on how prespill plans
would be formulated and implemented by an MOU.
Response: NOAA agrees that coordination among parties involved with
discharges of oil is crucial. NOAA cannot offer incentives for such
coordination within this rulemaking, but notes that the increased
efficiency and chances of successful recovery of the environment are
incentives in and of themselves. This preamble discussion on the
different aspects and avenues of coordination offers guidance on those
areas NOAA has identified through this rulemaking process. There are
undoubtedly more areas where the various parties can work together.
Comment: Most of the commenters agreed that trustee coordination is
crucial to a successful and expeditious damage assessment and that this
coordination is strongly encouraged by OPA. These commenters urged NOAA
to provide clear but flexible guidance on trustee coordination. They
noted that, absent such language, the assessment process is more likely
to be adversarial and have the potential for overlapping studies and
claims. Another commenter stated that this coordination would help to
ensure that all potentially affected trust resources are included in
the assessment process.
Response: NOAA agrees that coordinated efforts are best for all
parties involved and can spare much wasted time and expense.
Comment: A large number of commenters on this issue pointed out
that good coordination among trustees is essential to avoid double
recovery, prohibited by OPA. Some of these commenters suggested that
the trustees should be required to include in their damage claim a
certification of how the assessment avoids double recovery. Several
commenters stated that coordination among trustees would do much to
improve the efficiency of assessments, particularly to avoid duplicate
assessments, and the success of the assessment. Other commenters
pointed out that better coordination could avoid prolonged and
unnecessary litigation, and speed the actual restoration and recovery
of injured resources. One commenter noted that coordination would help
avoid competition among trustees for sometimes limited funds available
to pay damages. Finally, some commenters noted that when faced with
multiple assessments and claims the RP(s) is forced to commission
parallel assessments in its own defense.
Response: Coordinated efforts would help avoid double recovery of
damages. NOAA does not include in this proposed rule a requirement that
the trustee(s) include a certification of how double recovery is
avoided. That kind of detail will be resolved through the cooperative
process. These cooperative efforts allow trustee agencies to
efficiently use limited budget and personnel for a successful effort.
These efforts may also foster cooperative efforts with the RP(s) as
well.
Comment: Several commenters urged NOAA to prescribe specific
sanctions against trustees who do not coordinate assessments. Most of
these commenters stated that trustees who do not coordinate their
assessments should be denied the rebuttable presumption for the
assessment. Others stated that if trustees do not coordinate, they
should be required to affirmatively carry the burden of proof to show
no overlapping of claims. Finally, some of these stated that they would
urge the U.S. Coast Guard, in the promulgation of its claims against
the Fund regulations, to deny payment from the Fund to trustees who do
not coordinate.
Response: This proposed rule does not contain penalties for failure
to cooperate. Since these coordinated efforts are encouraged and not
required by the proposed rule, the rebuttable presumption would not
hinge on the presence or absence of coordination. Trustees should
recognize, however, that assessments will be more effective and
successful if coordinated. The suggestion that disbursements from the
Fund be denied to trustees who do not cooperate is clearly outside the
scope of this proposed rule.
Comment: Several commenters stated that the rule should encourage,
or require, trustees to establish a committee to coordinate resource
damage assessment and restoration activities among trustees as well as
RPs. These commenters stated that the trustee council should also
designate a committee chair.
Response: NOAA points out that past experience has shown the
success of, and need for, trustee committees or councils. These
councils are discussed in the section of this preamble describing the
trustee MOU.
Comment: Several commenters stated that, since federal and state
trustees are co-equals under OPA, there should be an equal number of
state and federal trustees involved in the assessment activities, each
with his own vote or, failing that, the trustees should operate on
consensus.
Response: NOAA agrees that natural resource trustees are equal
partners in the protection and restoration of the environment. However,
the number and type of trustees involved in a particular discharge is
entirely incident-specific. NOAA would certainly not like to see
trustees jockeying for control of a situation by ``stacking''
committees with large numbers of representatives. Since decisions
should be made through the consensus of the trustees involved, the
number of particular representatives is immaterial.
Comment: Although many of the commenters agreed that decisions
among trustees should be through consensus, the commenters pointed out
that NOAA should provide guidance for the case involving controversial
issues where consensus among multiple trustees is not possible. One of
these commenters suggested that NOAA might consider having trustees use
a mediator or facilitator for these deliberations.
Response: NOAA encourages trustees to decide upon a decisionmaking
process before a discharge occurs. Such agreements may easily be
modified at a later date, but are extremely difficult to decide during
a discharge event. NOAA does not believe that the proposed rule could
provide a mechanism that would apply to all discharges.
Comment: At least one commenter indicated that NOAA should develop
a list of technical experts that could be called upon to carry out
preassessment and assessment/restoration activities in order to ensure
efficacy in the process.
Response: NOAA agrees that such a list may be useful. However,
since the majority of damage assessments will likely be localized, a
list provided by NOAA may not prove useful to the local trustee(s).
NOAA encourages the trustee(s) to assemble such lists as part of the
prespill planning process, based upon past experience and the
qualifications of potential experts. The trustee(s) is advised to be
aware of conflicts of interest when developing such lists.
``Lead Administrative Trustee (LAT)''
Comment: Many of the commenters stated that the designation of a
Lead Administrative Trustee (LAT) is crucial to the success of an
assessment. One commenter noted that the current practice results in a
de facto LAT in the person of the litigator who conducts the
negotiation, a process which takes the issues out of the hands of the
resource manager.
Response: NOAA agrees that trustees are in a much better position
during a discharge if they can decide among themselves whether a LAT
would be useful, and if so, who should serve in that position.
Comment: Some commenters stated that the LAT be a federal trustee,
others that the LAT be a state official. Some suggested that the rule
allow for the LAT to be either an official from a federal or state
agency or a tribe with no restrictions. One commenter suggested that
there be appointed co-LATs, with the duties rotating among these
accordingly. Another commenter suggested that there may be many cases
in which it would be appropriate for there to be a single non-federal
LAT. Finally, one commenter pointed out that U.S. EPA is required by
E.O. 12777, to amend the NCP to indicate that the federal trustees
shall designate one federal trustee to act as the LAT in the event of a
discharge of oil.
Response: NOAA points out that any of the possible suggestions for
LAT designation could be appropriate. The designation of a LAT is so
fundamentally affected by the circumstances of the event that it would
simply not be possible for NOAA to decide ahead of time on behalf of
the trustees. Finally, a discussion of federal trustee requirements
under E.O. 12777 is given in the discussion in this preamble on
prespill planning.
Comment: Several commenters stated that where there are both
federal and state trustee agencies involved, there should be one
federal LAT and one state LAT selected. One commenter noted, however,
that the correct allocation would be one federal LAT and one non-
federal LAT.
Response: NOAA notes that, as mentioned in an earlier discussion,
it is possible that trustees at an incident could decide to appoint co-
LATs. Another way to deal with potential multiple LATs would be to
rotate or split LAT duties on a mutually agreeable schedule among the
trustees.
Comment: Many of the commenters who spoke to the issue of how one
would select a LAT stated that the rule should allow for the trustees
to make that decision at the time of the discharge, based upon the
particular situation. One commenter, however, asked for specific
guidance in the rule as to how a LAT would be selected, while another
stated that such designation would take place in the prespill planning.
Some of the commenters suggested that the trustees consider such things
as the habitat affected, the experience of the trustees involved, or
the liability limits of possible state law as opposed to OPA. Other
commenters pointed out that the scope of the effects should be the
deciding factor. A state agency may have the majority of concerns in a
particular situation, but in other situations the effects may extend
well beyond the state's borders so that the federal trustee may be the
logical choice. Finally, one commenter suggested NOAA adopt the
provisions found in 43 CFR 11.32(a)(1)(ii), which suggests appointment
of a lead official based upon the trusteeship of the resources most
affected or upon the ownership of the waters or land upon which the
incident occurs.
Response: Again, NOAA notes that all of these suggestions may be
considered in the selection of a LAT, but that it would be impossible
to require a particular designation within the proposed rule.
Comment: Several commenters stated that the LAT's duties should be
ministerial, i.e., scheduling meetings, coordinating communications
with the OSC and the RP(s), serving as a central contact for
information exchange and data collection. Some of the commenters noted
that the nature of the LAT's duties should not be allowed to usurp or
interfere with the rights of the other trustees. Other commenters,
however, suggested that the LAT should have a true leadership role.
Response: NOAA agrees that the LAT's duties should be mainly
administrative unless all trustees agree otherwise.
Comment: Commenters on the issue of arbitration authority for the
LAT were split. Many of the commenters stated that the LAT must not
have the authority to preempt the other trustees' exercise of their
trustee responsibilities. These commenters noted, as support, that OPA
requires the various classes of trustees be responsible for conducting
assessments for their own resources. These commenters also pointed out
that arbitration authority in one trustee would be an impossible
situation where that trustee is also the response agency or the RP.
Response: NOAA points out that the intent of Congress is quite
clear on the issue of any trustee having preemptive authority over
other trustees. The OPA Conference Report, at 209, states that ``[o]ne
class of trustees cannot preempt the right of other trustees to
exercise their trustee responsibilities.''
Comment: The other side of the argument was presented by quite a
few commenters. These commenters noted that a LAT with arbitration
authority is a necessity for any assessment. They pointed out that
there must be someone with the authority to settle disputes, or the
integrity and effectiveness of the assessment are lost. These
commenters argued that any assessment without a decisionmaker would
break down into a contentious, ineffective process. Some endorsed 43
CFR 11.32(a)(1)(ii) as an effective way to appoint an arbitrator LAT.
Response: NOAA agrees that some process should be worked out for
settling disagreements or disputes. However, as stated earlier, this
rulemaking could not dictate that process. Also, as mentioned elsewhere
in this proposed rule, there is no prohibition against trustees doing
parallel assessments so long as there is no double recovery of damages.
Comment: Some commenters expressed concern over the trustees'
ability to reach agreement by consensus. One commenter even suggested
that the LAT be vested with the sole decisionmaking authority. One
suggested that the LAT should have arbitration authority, and one
suggested that all trustees always acknowledge NOAA in that role.
Response: No trustee can abrogate another trustee's(s')
responsibility. Experience has shown that once the trustees have become
fully informed of the facts of a particular incident, their common
interests lead to consensus decisionmaking. NOAA agrees that in any
incident an agreement upon the appointment of a LAT should be an early
order of business. For the reasons discussed regarding agreement by
consensus, giving arbitration authority to the LAT would not be
workable. Since the selection of the LAT is usually dependent upon the
circumstances peculiar to each incident, advance designation of NOAA,
or any other trustee in that role, would not appear to be a prudent
procedure.
Comment: One area that some commenters felt needed clear language
in the rule was where a trustee is also the RP. In such cases, these
commenters stated that the trustee/RP should never be allowed to serve
as the LAT, unless, as suggested by one commenter, there is unanimous
consent of the other trustees.
Response: NOAA notes that trustees at the time of an incident may
need to decide whether another trustee who is also an RP could serve as
the LAT. Such selection is not impossible, but should be considered at
the time.
Comment: Some commenters suggested that in some cases no LAT may be
designated, at the option of the trustees.
Response: NOAA agrees that there may be cases where there is no LAT
selected, but only where there are state and no federal trustees.
Comment: Various commenters agreed with appointing a LAT. Many
suggested that all trustees should agree upon a LAT prior to receiving
funds from the OPA trust fund, so that all would have the necessary
incentives to meet reasonable and responsible guidelines for their
expenditures.
Response: Federal trustees, under E.O. 12777, may need to agree to
designate a federal LAT before receiving monies from the OPA Fund. The
management of that Fund, however, is not within the scope of this
proposed rule.
Comment: Several commenters agreed that trustees should coordinate
the assessment/restoration process, but pointed out that OPA does not
preclude different trustees from conducting parallel assessments with
individual plans, so long as there is no double recovery of damages.
Response: NOAA notes that these commenters are correct. The
trustee(s) may, under OPA and this proposed rule, conduct separate,
parallel assessments so long as there is no double recovery of damages.
Comment: One commenter suggested that NOAA should propose guidance
on when a foreign trustee could serve as the LAT, particularly when the
LAT's duties require spending U.S. public funds.
Response: Like so many of the other issues in trustee situations,
the option of selecting a foreign trustee to serve as LAT is best
decided by parties involved in a particular discharge.
Comment: Quite a few commenters suggested that NOAA has the
technical expertise and experience to assume the role of LAT for
assessments conducted pursuant to OPA.
Response: NOAA appreciates the commenters who suggested that NOAA
should serve as the federal LAT at discharges. However, it would
clearly be inappropriate for NOAA, within this rulemaking, to appoint
itself LAT.
``Model MOU''
Comment: A number of commenters recommended increased coordination
between state and federal agencies through a Memorandum of
Understanding (MOU). One commenter suggested that MOUs should be
generic enough to cover any applicable discharge, but specific enough
to avoid conflict. Some were concerned that a state would be given only
one voice or participant pursuant to an MOU. Some cited the need for
multiple-state, and state-by-state/regional MOUs, or even MOUs based
upon tribal jurisdictional areas. Another commenter noted that the
model MOU should not require unanimous decisionmaking.
Response: The model MOU contained in NOAA's notice was included as
an illustration of the type of agreement that would facilitate and
coordinate the trustees' activities. The nature of an MOU developed by
trustees would need to be as general or specific as deemed necessary by
the particular trustees. It is understandable that each region and/or
incident would require some modification to adapt to local
circumstances. For example, the inclusion in the model MOU of one state
signature line was not intended to preclude the situation where more
than one state agency exercises trustee responsibilities, or the
situation where more than one state or tribe might be involved in the
same incident or region. Also, with consensus decisionmaking, the
number of voices (or ``votes'' in the words of one commenter) speaking
for any given trustee is essentially immaterial.
Comment: One commenter suggested that an MOU should be developed
through prespill planning to include provisions for the establishment
of: damage assessment working groups, trustee responsibilities, trustee
notification, coordination with the OSC or designee and trustees'
activities in the response structure, opportunity for participation by
all affected trustees, designation of a lead trustee, decisionmaking
procedures, contracting objectives and guidelines, maintenance and use
of damage recoveries, and other such provisions.
Response: To the extent practicable, NOAA agrees that all parties
would benefit from having such provisions included in a prespill MOU.
Comment: Another commenter suggested that NOAA, in particular,
should enter into MOUs with state trustees concerning every important
aspect of the state trustee's assessment process.
Response: NOAA has worked with certain state trustees under MOUs
for particular discharges and would hope to reach agreement on the
model MOU language with as many states as possible.
Comment: The concept of prespill planning and development of an MOU
between the potentially affected trustees was favorably received and
encouraged by those who commented upon it.
Response: NOAA agrees fully and through this proposed rule is
encouraging prespill planning in order to reduce, to the extent
reasonably practicable, the waste of precious time in start-up
activities when an incident occurs.
Comment: Two commenters suggested that failure to participate in an
MOU, or failure to coordinate efforts between the trustees, should
result in the loss of the rebuttable presumption that the trustees'
assessments were conducted in accordance with the regulations. Another
commenter noted that the MOU should provide for the loss of the
rebuttable presumption if NOAA's rule is not followed.
Response: A trustee cannot be forced to enter into an MOU, and the
failure to do so cannot result in the elimination of a right granted to
it by statute. Further, the use of this proposed rule is optional, not
mandatory. Therefore, although the trustees may agree on an MOU to use
this proposed rule, such an agreement would be optional to the
trustee(s).
Comment: One commenter suggested that development of local and
regional assessment protocols or MOUs be required by the proposed rule.
Response: The proposed rule recommends that such agreements be
developed.
Comment: One commenter addressed the ``confidentiality'' provision
contained in the model MOU, and expressed concern that its inclusion
would hinder public participation in the decisions to be made by the
trustees.
Response: NOAA is committed to public participation to the greatest
extent possible in all of these situations. However, on a case-by-case
basis, some provision for confidentiality may be necessary in the event
of a potential adversarial proceeding against the RP(s).
``MOUs With Potential RP's''
Comment: Some commenters suggested that potential RPs should be
involved in the development of, or included as parties to, the
trustees' MOUs. Another commenter pointed out, however, that the RP
MOUs should be developed separately from the trustee MOUs because the
responsibilities of the parties are so different. One commenter
specifically suggested that a generic enforceable agreement be drafted
and negotiated with a large group of potential RPs. This agreement
could then be offered to an RP following a specific discharge to allow
early RP involvement without wasting time negotiating. The commenter
noted that the agreement would be enforceable and would allow the
trustee(s) to oversee all work done by the RP(s). Finally, the
commenter noted that the development of such an agreement prior to a
discharge would allow meaningful public comments on the contents of the
agreement.
Response: The basic concept underlying these MOUs is an attempt to
organize and coordinate the efforts and duties of the various trustees
at the time of an incident or, hopefully, prior to the occurrence of an
incident. The trustee(s) is encouraged, where appropriate, to consider
potential RPs in this process, or to negotiate separately with
potential RPs to develop prespill enforceable agreements.
``Advantages of Prespill Planning''
Comment: The vast majority of the commenters agreed that prespill
planning would be advantageous. Some of the advantages included:
helping to define the response priorities of the damage assessment
activities to be accomplished during response; presenting a united
front to the RP(s); increasing the public's perception of a coordinated
effort; improving the transition from ``cleanup'' to ``restoration;''
sorting out organization and administrative responsibilities in
advance; increasing chances of a successful recovery; increasing
timeliness of the natural resource damage assessment; and improving
chances of involving more interests in advance of a discharge.
Response: NOAA agrees that all of these goals are in the best
interest of the public and environment.
``Disadvantages''
Comment: Some of the commenters pointed out potential problems
associated with the concept of prespill planning. These possible
problems included: The potential for conflicting provisions with the
existing response structure; adding another layer of planning
activities that would burden smaller companies, and the personnel and
budget constraints of many states; and adding another layer of plans
that might cause confusion during a response. Some commenters noted
that the prespill planning process would be quite expensive, diverting
millions of dollars that could be used for true environmental purposes,
and would not be practical for all locations, but should be limited to
endangered species, sensitive areas, or areas where large discharges or
effects are likely to occur. Another commenter noted that such plans
might identify unnecessary studies that might be carried out in the
event of a discharge, with little or no connection to the actual or
anticipated effects related to that specific discharge.
Response: NOAA notes that engaging in prespill planning is not
intended as an empty exercise. Where prespill planning would complement
preparedness plans already in place, or create such a plan not yet in
existence, the planning would be a worthwhile effort. It would not be
worthwhile, however, to go through the effort if the result is not
beneficial or would interfere with other duties. The level of effort
and expense should depend upon the need. Also, the purpose of the
prespill planning is to clearly identify the types of concerns and
possible solutions that the trustee(s) is likely to encounter when the
oil hits the water.
``Optional''
Comment: Several commenters stated that the prespill planning
should be discretionary, particularly if funding is not available, and
should not lose the rebuttable presumption argument for an assessment
conducted in an area where there are no applicable prespill plans in
place. Another commenter suggested that these plans should be funded by
the federal, e.g., Oil Spill Liability Trust Fund, and/or state
governments.
Response: NOAA agrees that the prespill planning is optional and
recognizes that agencies need funding for such activities. Trustees
will undoubtedly need to draw to some extent from their budgets to
develop such plans. The management of and disbursement of some funds,
e.g., Oil Spill Liability Trust Fund, will be dependent on the
regulating agency and is outside the scope of this rule.
``Other Plans''
Comment: Many commenters spoke to the issue of other existing or
future plans under OPA, particularly the NCP. Some commenters stated
that the damage assessment prespill plans should be appended as
discrete documents to the various contingency plans, such as the Spill
Prevention Control and Countermeasure Plan program for oil storage
facilities (U.S. EPA, 40 CFR 1 12, 1974). Other commenters stated that
the trustees should defer to the new NCP, especially the fish and
wildlife response plans, and not require a separate level of planning
that might be duplicative and counterproductive for trustee concerns.
Other commenters stated that the NCP would not be the appropriate
vehicle for trustee plans because the contingency plans are focused on
response scenarios, not resource concerns. Many of the commenters
suggested that the trustee planning would fit in well with the
contingency planning at the local area committee level since these area
committees are to be formed in logical geographical areas and many of
the personnel and agencies involved in a discharge will have a chance
to meet and discuss issues of common concern at the local level. This
prespill interaction at the local level will provide increased response
and cooperative actions during both spill drills and actual discharge
events. One commenter even suggested that Local Area Plans be amended
to provide for assessment procedures.
Response: NOAA agrees that some trustees may want to have damage
assessment prespill plans referenced by or attached to response
contingency plans so that the OSC would have the broadest possible base
of information available during a discharge. Such decisions would be
left to the trustee(s), in coordination with the OSC. However, NOAA
does not agree that this type of planning is unnecessary for the
purposes of response cleanup and natural resource concerns occurring as
part of the response phase of a discharge incident. Resource planning
is a vital part of ACPs. Prespill plans will be needed to address the
damage assessment coordination issues of the natural resource trustees.
NOAA does agree that the Area Planning Committees called together for
response planning would, in many cases, be a logical starting point for
setting up follow-up meetings of the trustees for damage assessment
planning activities. It should be left to the trustee(s) to choose the
appropriate vehicle and areal extent of trustee planning exercises.
``Parties Involved''
Comment: Many of the commenters agreed that representatives of
federal, state, tribal, and foreign trustees in logical geographical
areas should meet to develop prespill plans. Several commenters,
however, noted that prespill planning should involve not only the
various trustees, but members of the response agencies and
representatives from industries that may be involved in transport or
storage of oil in those areas covered by the plans. Some commenters
noted that private response contractors should also become involved and
not only gain from meeting and establishing relationships with agency
personnel, but also through becoming more aware of environmental
concerns associated with various response strategies.
Response: NOAA agrees that the broader the planning and information
base the better for prespill planning purposes. However, the most
appropriate forum for relaying the issues would be as technical working
group members of the OPA Area Committees. Additionally, NOAA again
cautions that the scope of these planning actions is left to the
judgment of the trustees.
``Specific Response-Related Prespill Planning Issues''
Comment: Some commenters specifically noted certain areas of common
concern to both the trustee(s) and OSCs. For example, it was suggested
that prespill agreements could be worked out with the OSC-chaired area
response structure to cover: establishing communication roles;
identifying trustee damage assessment and OSC contacts; human health
and safety requirements; conducting spill drills that include damage
assessment components; working with the Fish and Wildlife and Sensitive
Environments working groups of Area Committees to identify resources of
particular concern; and issues of sampling, information, and data
sharing.
Response: NOAA agrees that there are numerous areas of overlapping
interests between the damage assessment trustee(s) and OSC coordinated
response structure. These issues are discussed at length in the section
of this preamble concerning coordination between damage assessment
trustees and the OSC coordinated response structure.
``Public Involvement''
Comment: Many commenters stated that the trustee(s) should involve
the public in the prespill planning activities. Some commenters stated
that this involvement could be accomplished through a review and
comment process of drafted prespill plans. Other commenters suggested
that members of the public could be helpful in developing those plans.
One commenter noted that public involvement in the prespill plan is
important to avoid litigation.
Response: NOAA believes that public involvement in prespill
planning is important to the success of these plans. Public awareness
is generally high during an actual discharge. Much public anxiety could
be avoided if the public is informed of the operations of the network
of agencies during a discharge. As these commenters noted, vital
information can be gained by those members of the public most familiar
with the natural resources.
``Scope''
Comment: Several commenters suggested that the prespill plans be as
broad as possible to cover as many trustee concerns as possible before
the oil hits the water. Another commenter, however, recommended that
damage assessment prespill plans not be rigidly drawn. The commenter
cautioned that the plan could become a liability where the nature of a
particular discharge is not contemplated in the prespill plan. Further,
the commenter stated it could be an unwise expenditure to develop a
contingency plan broad enough in scope to address an endless array of
possible discharges.
Response: NOAA agrees that such plans should be as broad as
possible. However, as noted previously, there are many demands upon the
time and resources of trustee agencies. The plans, therefore, should be
tailored to meet the needs of the trustee(s) and must, of necessity, be
flexible.
``Contents''
Comment: Most of the commenters had specific suggestions as to the
particular items to be included in prespill plans. These items
included: identification of sensitive areas; appropriate response
techniques that would have the least adverse effect on resources of
concern; location, types, and level of detail of baseline information;
identification of the types of data needs of trustees during a
discharge and subsequent assessment; agency contacts for the purpose of
notification and information sharing; surveillance and monitoring
schemes; sampling protocols; sensitive ecological, economic, and social
areas and priorities for protection; resource inventories; avenues for
trustee input on response actions; response plans for trustee actions;
methods for public information and involvement; socioeconomic effects;
prespill drills; and a compilation of various environmental and safety
laws that might apply to a damage assessment effort.
Response: NOAA agrees that the components listed in these comments
are the types of concerns that should be addressed. However, the items
mentioned for inclusion in prespill plans mixes: (1) Issues that should
be covered in the ACPs and only referenced in the natural resource
damage assessment prespill plans; (2) issues that should be covered in
both (but normally collected only once, sometimes by working groups of
the Area Committees and others by the natural resource damage
assessment prespill plan working groups); and (3) items belonging only
in the damage assessment prespill plans. In the first group belongs:
appropriate response technologies, priorities for protection, avenues
for trustee input on response actions, response plans for trustee
actions, and most of the surveillance and monitoring. In the second
group belongs: identification of sensitive areas, public information,
contacts notification and information sharing. The remainder falls in
the third group.
Comment: A commenter proposed that NOAA establish a centralized
database that can be accessible to all trustees nationally. The Lead
Administrative Trustee at each incident should be obliged to ensure
that the data are collected and submitted to the central database in a
compatible manner. Several states are now implementing and upgrading
Geographical Information Systems (GIS) that could be the repository of
this data. Such a database would save time and money for both the
trustee(s) and RP(s). It would be a useful way to build a history of
scientific information and costs.
Response: NOAA agrees that a centralized database would be helpful
to trustees in the future, but has no plans for such a project at this
time. However, NOAA has conducted a comprehensive literature survey of
restoration techniques that is available as an additional guidance
document.
Comment: One commenter stated that NOAA should emphasize the need
for involvement of experts on the fate, behavior, and ecological
effects of oil and various cleanup and restoration options. One
commenter noted that scientific literature is available to guide
decisionmakers. Another commenter recommended that the trustee(s) refer
to area contingency plans in determining environmentally sensitive
areas.
Response: NOAA agrees that the trustee(s) should take advantage of
existing sources of appropriate information. The Area Contingency
Plan's Fish and Wildlife and Sensitive Environments Annex is also the
repository of trustee(s) input for response actions and should contain
a mechanism for ongoing input during the spill's response phase to the
OSC about response actions affecting natural resources.
Comment: One commenter suggested NOAA, with its extensive
experience and expertise in habitat and species restoration, offer the
services of NOAA's ``Restoration Center'' or NOAA's HAZMAT group to the
trustees as necessary.
Response: NOAA appreciates the opinion of the commenter and notes
that NOAA, in appropriate circumstances, may lend any expertise it has
to the other trustee(s). However, there may be discharges in which NOAA
does not have experience to share.
``Restoration''
Comment: One commenter stated that trustees might include in
prespill planning the development of an overall restoration approach.
Response: NOAA agrees that the earlier the trustee(s) begins to
think in terms of restoration, where possible, the better. Elsewhere in
this preamble, NOAA states that, where the trustee(s) has adopted a
regional restoration plan for a specific area, recoveries of several
discharges may be pooled to help fund such plans. This option for use
of recoveries will likely be most useful in areas with long-term
pollution effects where damages recovered from a single discharge would
be too small to improve the ecosystem.
``Limits/Exclusions''
Comment: Several commenters pointed out that even comprehensive
prespill plans will not be able to foresee the multitude of possible
unique circumstances and events associated with a particular discharge.
One commenter pointed out that the trustee(s) should stress that there
may be some data requirements for a particular discharge that might not
be covered by generic prespill plans. Another commenter suggested that,
instead of trying to list within prespill plans specifics on sampling,
data collection, baseline studies, and specific contract obligations
and performance standards, the trustee(s) could reference the locations
of such items in a supplemental document format. Another commenter
stated that long-range damage assessment and restoration management
plans should be developed only after a discharge, when the specifics of
the resource injury are known.
Response: NOAA recognizes that no plan can ever encompass all
possible events. Therefore, any plan must be flexible and recognize
that it is subject to change in the event of a discharge. NOAA also
agrees that any long-range damage assessment would have to be tailored
to the specific discharge, but points out that certain components, such
as administrative management, will likely need to be addressed for all
discharges. As to restoration management, as noted previously, some
restoration planning for areas frequently affected by discharges might
be possible.
``Guidance''
Comment: One commenter suggested that prespill planning activities
should include the development of a ``generic'' damage assessment
``initiation'' workbook. Such a workbook could include a general list
of the types of information that the trustee(s) would routinely need
during the early stages of response and damage assessment. Another
commenter stated that the trustee(s), in prespill planning activities,
should recognize the importance of developing socioeconomic damage
assessment responsibilities, guidelines, and procedures. Finally, one
commenter stated that prespill plans should reflect the fact that
planning officials from agencies may not be the trustee officials who
would actually be involved in the assessment and restoration
activities.
Response: NOAA encourages the development of guidance documents or
workbooks wherever possible. Such knowledge should be documented so
that one is not ``reinventing the wheel'' with each discharge. NOAA
also notes that socioeconomic damage assessment issues might be covered
in prespill planning, should the trustee(s) desire. Finally, NOAA
recognizes that in some entities, contingency planning and response
personnel may not be the same personnel involved in damage assessment
and activities. Therefore, it is important that all those concerned in
a discharge, both from the response side and the trust resources side,
become familiar with the various responsibilities of each other before
the oil hits the water.
Coordination With Response Agencies Response to Comments
``General''
Comment: Commenters were almost unanimous in agreeing that the
actions of OSC response agencies and the response and damage assessment
trustees should be coordinated to ensure effective and efficient
cleanup and minimize the environmental effects of the discharge. Some
of these commenters urged NOAA to clearly define each agency's role in
the cleanup and assessment processes. Others noted that such
coordination is already addressed in section 1011 of OPA and,
therefore, should not be repeated within NOAA's rule. These commenters
were concerned that another layer of required coordination would add
possible confusion and conflict. Therefore, these commenters suggested
general, non-binding guidance for this proposed rule.
Response: NOAA agrees that trustee agencies should work closely
with OSC agencies to minimize the effects of a discharge through
cleanup strategies. Although NOAA cannot dictate to OSC agencies their
roles in cleanup, NOAA does give guidance to the damage assessment
trustee(s), in this proposed rule, on interaction with the response
structure regarding damage assessment issues. NOAA recognizes that
coordination between the OSC and trustee agencies is covered in section
1011 of OPA and that such duties will be covered in other rulemakings
under OPA. Any guidance in this proposed rule is intended to supplement
the explanation of the damage assessment trustee's concerns about
efficient coordination. As such, NOAA agrees that any guidance in this
proposed rule is not binding.
``Role of OSC''
Comment: Many commenters pointed out that, during a response to a
discharge, the On-Scene Coordinator (OSC) is the government's
authorized source of information and directions to the RP(s). As such,
the OSC must be advised of and retain oversight over all activities
occurring during that response phase. Other commenters, however, noted
that the OSC cannot divert his attention from the response to
coordinate damage assessment. Also, any concerns over litigation,
whether for response costs or natural resource damages, should not come
up during the response where the common goal should be prompt and
effective response.
Response: NOAA agrees that only the OSC is the spokesperson for
response purposes at a discharge and, as such, has oversight of all
response activities. However, the OSC has quite enough to do during a
response without needing to be burdened with assessment duties as well.
In any event, the trustee(s) has these assessment duties as statutory
requirements and cannot pass those duties off to an OSC.
``Response Preeminent''
Comment: Several commenters stress that coordination between the
trustee(s) and the OSC must not deter the OSC from overseeing the
response effort, or undermine the cleanup as effectively and promptly
as possible or hamper free flow of information.
Response: NOAA agrees that the trustee(s) should not disrupt the
cleanup directed by the OSC.
``Role of Trustee(s) During Response''
Comment: Several commenters pointed out that the trustee(s),
because of resource expertise, has an advisory role to provide input in
the response planning process and help influence response priorities
and techniques for protection. These commenters noted that, during the
response, the trustee(s), not the OSC, has the responsibility for
damage assessment issues and should be the one collecting information
for the damage assessment, not the OSC or the RP(s). Some commenters
stated that the trustee(s) does not, in fact, have a response role as
such and should not issue orders to the RP(s) during a response. One
commenter noted that, if the trustee(s) is involved in natural resource
damage assessment activities during a discharge, he should not have a
part in decisionmaking since there may be a conflict of interest or
conflict of mission when one agency has both responsibilities. Another
commenter noted, however, that there is no conflict of interest if one
agency is both trustee(s) and response agency since the role of the
response agency is to protect, enhance, and restore the environment,
which is consistent with the mission of the trustee(s).
Response: NOAA agrees that the trustee(s) when acting as the
resource expert, has an advisory role, as the resource expert, to the
response planning process and that the trustee(s) has the
responsibility for damage assessment. However, in the interest of
efficiency, if an OSC or the RP(s) is collecting samples, those samples
may be shared with the trustee(s) if all parties are agreeable. NOAA
believes that the trustee(s) should always be involved with response
decisions. As one of the commenters pointed out, both the trustee(s)
and OSC agencies have the same basic mission--protection of the
environment. These roles complement, not conflict with, each other.
``Decisionmaking''
Comment: Several commenters noted that an emergency response cannot
be directed by committee or consensus. One of these commenters
suggested that the goal of coordination is to involve the most
knowledgeable discharge experts, not simply to involve the greatest
number of interested parties. Finally, this same commenter noted that
the Advance Notice of Proposed Rulemaking was not clear as to the
extent to which NOAA is recommending participation of trustee agencies
in discharge response decisionmaking.
Response: NOAA acknowledges that emergency decisions cannot be
directed by outside committees and did not mean to suggest differently.
NOAA agrees that decisionmaking should be focused through knowledgeable
advice. NOAA also points out that discharge response decisions are the
ultimate responsibility of the OSC, but the OSC does not make these
decisions without foundation. The trustee(s), in their response role,
have a consultation role to play in the decisions.
``Notification/Consultation''
Comment: One commenter pointed out that to fulfill the statutory
obligation of section 1011 of OPA, the OSC will need to initiate
immediate contact after a discharge with all affected trustees and will
also need to communicate with them throughout the removal process. Some
commenters stated that they wanted to be notified of every discharge.
One commenter noted that this kind of notification would ensure that
only the trustee(s) would be deciding if the discharge warrants a
damage assessment or not. Another commenter stated that, even if the
affected trustee(s) does not take damage assessment action at each
discharge, the notification requirement is important to build a
comprehensive history of a particular site. Some commenters suggested
that a routine notification procedure, for example, once a week for
most discharges, with basic information sent to all potential trustees,
would be sufficient for a trustee(s) to determine whether trustee
resources may suffer significant injury. However, for significant oil
discharges that may affect trustee resources, the trustee(s) will still
require simultaneous notification. One commenter suggested that, to
differentiate those discharges that would require weekly rather than
simultaneous notification, resources could be categorized
hierarchically in terms of value. One commenter stated that the DOI
rules suggest that the most likely federal or non-federal trustee could
receive the notification and be responsible for notifying other
trustees. Another commenter suggested that NOAA consider the creation
of a Damage Assessment Officer position, through NOAA resources, to
work with OSC for the purpose of notification and communication. This
person would augment the resources targeted to the notification process
and allow expeditious determination of the discharge's significance.
Response: NOAA agrees that the OSC will notify the trustee(s) of
discharges. It is also understood that it is the statutory duty of the
trustee(s) to determine whether a discharge warrants a damage
assessment, especially since the trustee(s) cannot assign this duty to
the OSC or any other entity. NOAA also notes that notification of
discharges helps the trustee(s) build an important history of the
area's exposure to discharges of oil. NOAA notes that a weekly
notification of the numerous relatively small discharges might be a
good arrangement to establish in the prespill planning. However, this
proposed rulemaking cannot dictate the timing or manner of notification
for either the small discharges or the larger ones. Nor can NOAA
establish in this proposed rulemaking that one or another trustee
agency will have the duty to notify all other trustees. There are
several problems with that kind of assumption of responsibility. First,
that duty to notify is already conferred upon the OSC by OPA. It is
unclear that it would be beneficial for some other agency to assume
that duty. Second, any trustee agency that might agree to serve such a
function as a surrogate for the response agency would have to recognize
the budget and personnel costs of such a duty. NOAA believes that
prespill planning is essential for working out such notification
requirements.
Comment: Other commenters noted that there are numerous regulations
to be promulgated by the response agencies pursuant to OPA that would
address, among other things, multiple duties in consultation with the
natural resource trustee(s). These commenters pointed out that the OSC
should not be burdened with the responsibility of determining all the
trustees to notify for a particular discharge.
Response: NOAA agrees that the consultation procedures should be
worked out during other pertinent rulemaking efforts. The
identification of trustees requiring notification is a good example of
the kind of process that should be developed in the prespill planning.
Comment: Some commenters cautioned that the current statutory
requirement that the RP(s) notify the National Response Center when
discharges occur does not include notification of such discharges to
the trustee(s). These commenters noted that the trustee(s) and OSC must
establish communication roles and identify contacts for purposes of
such notification. These commenters pointed out that the RP(s) should
not have trustee notification added to its responsibilities.
Response: NOAA acknowledges the fact that the only reporting
requirement of the RP(s) is to the National Response Center. There is
no duty to notify the trustee(s) over and above what is provided in
OPA. This proposed rule would not be an appropriate vehicle for such a
requirement.
``Data Sharing During Response''
Comment: Many commenters noted that information should flow freely
between response and damage assessment trustee agencies during an
event.
Response: NOAA agrees with these commenters and will encourage such
information sharing as much as possible.
Comment: One commenter suggested that the OSC may be able to gather
data on samples more efficiently than the damage assessment trustee
agencies and save time and avoid additional effects. Another commenter,
however, suggested that there should be damage assessment trustee data
collection teams separate from the OSC's response structure.
Response: NOAA agrees that it would be more efficient and less
risky to the natural resources to have the OSC-coordinated response
structure collect all information needed at the site of a discharge.
However, in most cases, such data collection is simply not possible.
Separate data collection teams may be a good idea so long as there is
no interference with the response and no ``unreasonable'' costs
associated with it.
Comment: Commenters noted that the OSC relies primarily upon
information about sensitive or valuable resources contained in the
appropriate ACP, but that this information can be augmented by the
advice of the trustee(s) during a discharge. Many of these commenters
noted that any information requested by an OSC to make a response
decision must be immediately provided, if available. These commenters
stated that withholding information due to litigation concerns does not
outweigh the need to minimize environmental damage. Some of these
commenters noted, however, that such information will become public
information through the OSC.
Response: NOAA notes that all of these concerns are valid.The fact
that some information may be used in some future litigation is not a
good reason for possibly impeding a response action.
Comment: Many commenters noted that the OSC, by nature of being on
scene, has information critical to the trustee's(s') preassessment work
and that this information should be shared with the trustee(s). One of
these commenters pointed out that by sharing such information with
damage assessment trustee(s), the OSC is allowing the trustee(s) to
spend time compiling any additional information it needs rather than
duplicating efforts. Other commenters noted that where the trustee(s)
damage assessment data needs are clear and not burdensome, the OSC
might be able to collect additional information on behalf of the damage
assessment trustee(s), so long as such efforts do not interfere with
the response effort.
Response: NOAA agrees that the OSC may be able to share much
information with the damage assessment trustee(s), thereby improving
the efficiency of both. The possibility that the OSC could actually
collect additional information beyond what is needed for response might
be worth exploring in the prespill plans and ACPs so long as the
parties understand that the OSC could not conduct such work if it would
interfere with the response.
Comment: Several commenters pointed out that the trustee(s) should
not exclusively rely upon the OSC to collect information necessary for
an assessment, but should be allowed to gather additional information
during the discharge.
Response: NOAA is of the opinion that where OSC-collected
information is relevant to the damage assessment process, such
information should be used to avoid redundancy and double counting.
However, it is ultimately the responsibility of the damage assessment
trustee(s) to collect the necessary data for a damage claim.
Comment: Some commenters noted that the OSC should seek early
involvement of the trustee(s) in order to share information about the
characteristics of the discharge and the potential effect to the
environment, particularly information on local conditions and
resources. Several commenters pointed out that this sharing of
information would also allow the trustee(s) to evaluate and make
recommendations on the response activities themselves, so that the
damage caused by the discharge is not worsened by the type of response
and cleanup techniques, but that the cleanup might accelerate the
recovery of the resources.
Response: NOAA points out that there is currently a mechanism for
funneling important resource information to the OSC, providing
technical advice and recommendations to minimize the effects of the oil
and response activities. The OSC accomplishes this by soliciting input
from trustee agency experts, academia, etc. The mechanism for relaying
this information is already in place through the ACPs, but could be
restated in the prespill plans.
Comment: One commenter stated that high-impact cleanup methods that
remove living organisms and greatly modify the habitat are not
justified when the oil left in the environment has already lost most of
its toxicity. There may be less injury and faster recovery with limited
or no removal and natural recovery. The commenter stated more research
is needed in all areas of restoration ecology. Several commenters urged
trustees to help plan response and cleanup actions that will have
lesser effects on the resources.
Response: NOAA agrees that more research is needed in the field of
resource restoration. The commenters are correct in pointing out that
trustee input to cleanup decisions may greatly reduce resource effects
to be corrected by restoration. NOAA agrees that the ecological effects
of any planned action should be considered in the restoration planning.
There may be certain instances where the public uses of an area may
require removal of residual oil in order to restore the services
provided prior to the discharge.
``Funding''
Comment: Some commenters were encouraged that there would be
provisions for the use of the Oil Spill Liability Trust Fund for
trustee activities, including the initiation of natural resource damage
assessments and time-sensitive damage assessment activities where other
funding is not available. Another commenter noted that agencies within
a state might not be the ones designated to apply for funding, but
still need access to the Fund to participate in the process.
Response: NOAA points out that the procedures for the management of
the Fund are the subject of different rulemaking efforts by the U.S.
Coast Guard and are outside the scope of this proposed rule. The
problem noted by one commenter as to different agencies within a state
having different roles is an internal state issue, clearly not within
this rulemaking. Hopefully, such problems can be identified and
resolved within the prespill planning.
``Define When `Cleanup' is Over''
Comment: Quite a few commenters requested guidance on when the
removal portion of a response would be deemed to have ended, and when
remedial and/or assessment activities might be more appropriate and
suggested criteria for the OSC to use in making this determination.
Some of these commenters noted that this determination is important
since liability for restoration measures can only be determined to be
necessary if natural resource injuries still exist after the legal
conclusion of the ``removal'' phase. Another commenter pointed out
that, although data on the scientific effects of a discharge should be
collected as soon after the discharge as possible, damage assessment
activities should occur only after the response and cleanup activities
are completed.
Response: NOAA notes that the end of the removal portion of a
response is defined by the OSC and it would not be appropriate for this
proposed rule to try to dictate the criteria for making that decision.
NOAA does note that there is a clear line of division, legally, between
removal and restoration. The commenters are correct in noting that
restoration is residual to response efforts. The trustee(s) must
determine what, if any, further actions beyond response work are
necessary for the recovery of the system. However, the trustee(s)
cannot always wait until the end of all response work before beginning
assessment/restoration activities. Such a delay would not be in keeping
with OPA's policy of expeditious actions on behalf of the environment.
```Cleanup' vs. `Restoration'''
Comment: Several commenters were concerned with the issue of
allowing the trustee(s) to undertake emergency restoration during
response. These commenters were concerned that the proposed rule might
blur the distinction between cleanup and restoration. Some of these
commenters noted that in practice the distinction between cleanup and
restoration eventually becomes difficult to maintain. These commenters
pointed out that failure to make the distinction clear could result in:
(1) Trustee-directed damage assessment activities conflicting with
ongoing cleanup operations; (2) restoration money spent to reimburse
cleanup activities; and (3) RP(s) requesting credits for
``restoration'' projects against assessed damages, when in fact those
restoration projects were actually cleanup activities. As an example,
one commenter pointed out that NOAA implied that physical removal of
contaminated sediments and bioremediation are restoration techniques,
whereas these were both considered to be cleanup methods during the
EXXON VALDEZ response.
Response: NOAA agrees that, although there must be a separation
under OPA between response and restoration because of the liability
provisions and different implementing authorities, in the practical
sense the two can sometimes involve the same type of activities. NOAA
notes that ``emergency restoration'' (discussed in the section on the
Preassessment Phase) should not conflict with on-going activities so
long as they are part of the OSC-coordinated response. NOAA also notes
that damages recovered for emergency restoration actions are not
reimbursements for response actions, but are to reimburse the
trustee(s) for actions deemed necessary due to the exigencies of the
situation. Also, the RPs is not granted a ``credit'' to offset damages
for funding emergency restoration. The effect of these emergency
actions is to lessen, perhaps dramatically, increased effects and,
therefore, larger future damages.
In some circumstances, the same action could be considered either a
removal or restoration action, depending upon the purpose of the action
and agency that is carrying it out. For example, if dredging is done
for human health concerns by the response agency, it is a removal
action. However, if the trustee(s) decides that cleanup to lower levels
of contamination is needed to take care of resource concerns, then
additional dredging may be necessary by the trustee to be able to
``restore'' the system.
Comment: One commenter pointed out that the natural resource
trustee(s) currently has authority under 43 CFR part 11 to undertake
emergency ``restorations'' to avoid, prevent, or mitigate certain
imminent threats to particular natural resources. However, this
commenter noted that restorative efforts, though important, cannot be
allowed to physically interfere with emergency response.
Response: NOAA is familiar with the 43 CFR part 11 provision for
emergency restoration and is hoping to foster consistency with this
proposed rule. As mentioned earlier, trustee actions are not to
interfere with response actions.
Coordination With the Public
Response to Comments
``Advantages''
Comment: One commenter pointed out that openness that allows for
broad participation encourages directness. Another commenter pointed
out that the public has the right to ensure that the assessment and
restoration are done accurately and thoroughly. Some commenters noted
that such participation will help find the most cost-effective actions
and equitable damages. Other commenters noted that the public has an
important and legitimate interest in the process and, in many cases,
members of the public have expertise in a particular area of concern
and can help with the assessment as well as restoration process. This
commenter also noted that public participation is needed as a
counterweight to the RP's participation. One commenter pointed out that
withholding information would impede public and scientific input into
the assessment process. Several commenters noted that every effort must
be made to ensure that the assessment and restoration process is
conducted in an objective manner to preserve public confidence in the
process.
Response: NOAA agrees that each phase of an assessment/restoration
process, including prespill planning, should involve the public to the
extent practicable. Members of the public are an excellent source of
information about particular natural resources and available expertise
in the community. The public, as the owners of the natural resources,
have a real interest in the assessment and restoration and might
provide a balanced representation of the public interest.
``Not Necessary''
Comment: Some commenters stated that there is no need for extensive
public involvement in the assessment process since the public natural
resource trustees are, after all, the representative of the public. One
of these commenters stated that the trustees' involvement in developing
plans and assessments satisfies OPA requirements of public involvement.
Another commenter pointed out that OPA directs the trustees to act on
behalf of the public.
Response: NOAA recognizes that the trustee(s) is, in fact, acting
on behalf of the public. However, this relationship does not mean that
the trustee(s) is not accountable to the public. The involvement of the
public in the assessment/restoration process does not mean the
trustee(s) is abdicating fiduciary duties to the public. One of these
duties is to adequately ascertain the wishes of the public concerning
the management of the public's natural resources.
``Scope/Extent''
Comment: One commenter stated that public participation should be
limited to safeguarding the trustees' accountability. Some commenters
stated that there should be some exceptions to the amount of public
participation allowed for an assessment. For example, one commenter
suggested that members of the public should be allowed access to raw
data if they demonstrate they have the resources to carry out the
analysis. One commenter stated that providing for less than full review
and comment by the public might appear that the trustee(s) is trying to
exclude the public from the process. Another commenter stated that
public review of purely scientific data would probably not interfere
with litigation or negotiations. Other commenters stated, however, that
the public review and participation should be mandatory for the entire
process, including any modifications of plans that have already been
available for public review and comment.
Response: NOAA notes that there will undoubtedly be some exceptions
to the public involvement in this process. After all, the trustee(s)
simply may not have the budget or time to allow for extensive public
involvement. There are times when quick action is necessary, in which
cases it would be unreasonable for the trustee(s) to wait for an
opportunity for a public meeting before acting. In fact, this need for
expediency is another reason for involving the public in the prespill
planning. Also, there may well be sensitive information that is simply
not possible to make public, e.g., litigation-sensitive material
relating to liability. NOAA agrees that public review of data would
not, in many cases, delay litigation or the assessment/restoration
process. Also, NOAA agrees that significant modifications to materials
that have already undergone public review should also be reviewed
wherever possible.
``Levels of Review''
Comment: Several commenters pointed out that the extent and degree
of public involvement on a particular discharge would depend upon the
particular situation and the type of activity. One commenter suggested
that the trustee(s) could inform the public through press conferences,
press releases, open meetings, and Federal Register notices. Other
commenters pointed out that public participation in each stage of an
assessment may be impossible due to the dynamics of the discharge and
would overburden the trustee(s) staff and budget.
Response: NOAA has stated elsewhere that the extent and degree of
public involvement must be left to the judgment of the trustee(s).
There will undoubtedly be discharges in which public review of
documents would be quite expensive when compared to the effects caused
by the discharge. Costs associated with dissemination of information
for review must be reasonable.
Comment: A few commenters suggested that NOAA is proposing greater
public participation in the assessment process than is provided for in
OPA.
Response: OPA describes the assessment process in terms of the
restoration planning process. Therefore, NOAA believes the trustee(s)
has the discretion to determine the level and extent of public
involvement.
``Timing''
Comment: One commenter suggested that the public have notice and
opportunity to comment after the Preassessment Phase, after the full
assessment, and before the adoption of a restoration plan. Another
commenter stated that OPA provides the public with an opportunity to
comment before restoration plans are developed and implemented. One
commenter suggested that the public should have the option to review
any modification of the Assessment/Restoration Plan. Another commenter
stated that even preliminary plans for discharges into sensitive areas
should be open for public review and comment. Another commenter stated
that public comment should not be requested until after the post-
recovery restoration plan is developed. One commenter stated that
public participation should be sought at the prespill stage, not during
a discharge investigation. Finally, one commenter stated that public
comment at any stage should be at the discretion of the trustee.
Response: NOAA is leaving the timing and scope of public
involvement to the judgment of the trustee(s). Clearly, in most oil
discharge cases, the trustee(s) will be unable to delay action to allow
for public review of all actions. However, at the first sensible
opportunity, the trustee(s) should inform the public of the state of
the process and seek public review as appropriate. NOAA agrees that the
best time for public involvement is in prespill planning when the
trustee(s) is not engaged in actual discharge activities. This does not
mean, however, that this prespill involvement would substitute for
appropriate public involvement in the case of an actual discharge. NOAA
also notes that the discussion of the assessment/restoration planning
process, found in subpart C of this proposed rule, provides for the
review of ``significant'' revisions.
``Notice of Meetings''
Comment: One commenter noted that notice of public meetings
concerning an assessment should be timely and posted in a publication
of general circulation.
Response: NOAA agrees that, to be successful, notice of any
meeting seeking public input must be published in a timely and visible
manner and in a local publication of general circulation.
``Delays''
Comment: Several commenters noted that public involvement should
take place during the response planning stage, not during an incident
when such involvement might delay the response. These commenters noted
that opening up the entire assessment process would significantly
decrease efficiency and could interfere with an objective evaluation of
the situation. Some of these commenters also noted that such public
involvement in early restoration planning could delay the early start
on restoration actions that may be possible. One commenter noted that
delays caused by public involvement might increase the damages owed by
the RP(s).
Response: NOAA emphasizes that the overall goal of this proposed
damage assessment rule is to get from a discharge to the recovery of
affected natural resources and services as quickly as possible.
Therefore, unnecessary delays should be avoided wherever possible.
However, as discussed elsewhere in this preamble, public involvement
does not necessarily mean holding a large public meeting for each and
every discharge. The same principle works in restoration planning and
implementation. The trustee(s) is not serving the public if his actions
slow down the healing process. However, the RP(s) is responsible for
all reasonable damages caused by the discharge. When public natural
resources are affected, it is reasonably foreseeable that the
trustee(s) must comply with certain administrative processes and may
have the duty to inform and involve members of the public during that
time.
``Litigation Concerns''
Comment: One commenter noted that public comment specifically on
the issue of the economic damages would strengthen those figures and
increase the likelihood of successful recovery. However, another
commenter noted that the trustee(s) needs free and open discussion of
options with staff, outside of the public domain, as part of litigation
approach. Another commenter noted that putting out the proposed
restoration plan that would show proposed acquisition of land as an
approach would cause a sharp increase in the price of that land.
Response: NOAA recognizes that public review and comment on
various aspects of a study plan is a desirable goal. However, public
information laws, such as the Freedom of Information Act (FOIA), take
note of the fact that there is an exception to public review where a
free discussion of litigation strategies or other sensitive issues are
necessary. Also, any descriptions of land to be acquired as part of a
restoration plan should remain general so that the prices would not be
elevated.
``Limits on Public Involvement''
Comment: Several commenters noted that public involvement should
be limited to the Congressional intent as shown by section 1006(c)(5)
of OPA, which calls for opportunity for public involvement in
restoration planning.
Response: NOAA notes that the section 1006(c)(5) requirement for
public involvement in restoration planning is read as a minimum
requirement in OPA. The clear Congressional intent revealed in OPA and
its legislative history is that the public be involved in a meaningful
way. Therefore, NOAA hopes to ensure that goal is met.
``Public Involvement in Restoration Planning''
Comment: Most of the commenters agreed that public involvement is
necessary in the development of restoration plans.
Response: NOAA agrees that the development of restoration plans
should be open to public involvement as noted above.
``Rebuttable Presumption''
Comment: One commenter noted that an assessment based upon a
restoration plan that had not been developed with public review and
comment would not receive the rebuttable presumption.
Response: NOAA points out that OPA specifically requires public
review and comment on restoration plans. As noted earlier, however,
full restoration planning for hundreds of small discharges may not be
possible for all trustees. In such cases, the trustee(s) should
consider developing regional or local plans that would go through the
public review and comment process, receive the rebuttable presumption,
and be ready to implement when funding is available.
``Citizen Oversight Committees (COC)''
``COC: Advantages''
Comment: Many of the commenters noted that allowing
representatives of local groups to either attend trustee meetings to
monitor the assessment process or participate in oversight committees
will further the goal of meaningful public participation. One commenter
pointed out that such participation is needed to gain a full
understanding of effects on the affected community. Another commenter
stated that such public involvement is crucial if jointly conducted,
phased assessments are permitted. Another commenter suggested that
assessment groups or teams should give adequate notice to and be open
for public participation.
Response: NOAA agrees with the goal of involving the public and
keeping the public informed of progress of the assessment and
restoration of its natural resources. It is also expected that such
public participation will add to the information pool available to the
trustee(s). The point raised by the commenter that public involvement
is needed in joint RP-trustee assessments, is well taken. If such
efforts are to succeed, they must be conducted in the open. Finally,
NOAA agrees that the public must be aware of the opportunities for
involvement. Notice of meetings should be given in the manner most
appropriate for any particular assessment.
``COC: Disadvantages''
Comment: Several commenters argued that there is no need for such
groups since the trustee(s), the source of expertise in this area, is
the representative of the public. Others warned that such oversight
would impede the assessments, negotiations, and subsequent restoration
efforts, if for no other reason than the sheer numbers of persons
involved. Another commenter noted that this involvement would also
greatly add to the cost of the assessment and restoration.
Response: NOAA agrees that the resource management agencies do have
a wealth of expertise concerning their natural resources. Because no
trustee can be omniscient, agencies must remain open to new sources of
information. It is also unlikely that the process would be overwhelmed
by vast numbers of citizens wanting to participate. In most cases,
citizen or environmental groups represent the general views of the
community and serve as focal points for interaction. Any discharge that
invokes the personal interest of large numbers of people is clearly a
discharge that needs public involvement. NOAA does not wish to suggest
that these groups are being given the responsibility of running the
assessment/restoration process. NOAA does not read the term
``oversight'' to mean ``control.'' The trustee(s), by law, cannot give
up their trust duties. Therefore, the citizen groups cannot have
decision or arbitration authority. The term ``oversight'' in this
context simply means participation, not authority. Public participation
in this rule does not include ``oversight'' of management functions.
Although the costs of preparation of materials and distribution of such
materials would be considered part of the regular costs of an
assessment, the costs borne by citizens interested in attending
meetings or other citizen-borne costs of participation would not be
included in the assessment costs.
``COC: Makeup of COC's''
Comment: Several commenters noted that Citizen Oversight Committees
(COCs) should involve groups with environmental expertise in a
systematic way to increase the collective knowledge available during an
assessment. Another commenter suggested that a group similar to the
National Science Foundation or the National Academy of Sciences could
help minimize decisions and associated expenditures founded on poor
science or made for political reasons.
Response: NOAA notes that the makeup of any group representing the
public interest is highly incident-specific. The types of interest
groups or organizations noted in these comments are good examples of
groups that are likely to contribute the most to an assessment and
restoration.
``COC: Optional''
Comment: Several commenters noted that, if NOAA decides to include
a provision for a COC in the rule, this involvement should be strictly
optional at the discretion of the trustee(s). Several other commenters,
however, pointed out that, even if such provisions were optional,
groups would come to see this participation as an entitlement and would
demand it in each case.
Response: NOAA notes that the fear of some kind of ``entitlement''
specter should not prevent the trustee(s) from carrying out their
duties in the most appropriate manner for a particular discharge. This
proposed rule strongly encourages public involvement in assessments,
but leaves the timing, scope, and extent of such participation to the
judgment of the trustee(s). No national rule could possibly cover all
scenarios that might arise due to a discharge of oil; therefore, this
proposed rule must leave the trustee(s) with the flexibility to tailor
the process to fit the discharge.
VI. Participation of the Responsible Party
While liability and responsibility of the RP(s) for removal and/or
response activities are addressed clearly in OPA, little guidance is
given in either the statutory language or the legislative history
concerning the role of the RP(s) in the assessment process.
The degree of involvement of the RP(s) in the assessment process
will likely have a direct bearing on several aspects of the assessment.
For instance, active and early involvement of a cooperative RP(s) may
eliminate some of the problems trustees have encountered immediately
following a discharge of oil, such as the lack of funding, personnel
and equipment. In addition, a joint trustee/RP assessment may be more
cost effective and avoid duplicate studies by the trustee(s) and RP(s).
After reviewing and analyzing all comments concerning this issue,
NOAA's proposed rule strongly encourages RP involvement but leaves the
ultimate decision with the trustee(s) and RP(s) on a case-by-case
basis. The reasons were many, varied, and well argued by the numerous
commenters that expressed an opinion on this issue ranging from full to
no involvement, but it is impossible to dictate through this proposed
rule a one-size-fits-all solution for all discharges. The trustee(s) is
entrusted by Congress in section 1006 of OPA to assess natural resource
damages and develop and implement restoration plans. While active RP
involvement is the preferred method of conducting assessments, the
trustee(s) can ill afford to delay assessment activities while
attempting to entice RP involvement.
In determining the nature of RP involvement in the assessment/
restoration process, the trustee(s) and RP(s) have many opportunities
for cooperative participation, from preassessment activities to
implementation of restoration activities.
Preassessment Phase: As noted in this preamble and in subpart B of
the proposed rule, this step requires the collection of preliminary
data concerning the circumstances of the discharge, characteristics of
the oil, nature of the receiving environment, and characteristics of
the affected natural resources and services potential for further
injury to natural resources. Based upon this information, the
trustee(s) will determine which, if any damage assessment procedure to
proceed. While there is no specific time limit for the Preassessment
Phase, the effectiveness of this phase will depend on how early the
trustee(s) is able to gather that information. Since time is critical,
the proposed rule does not require that the trustee(s) invite the RP(s)
to participate in this phase. It is the option of the trustee(s)
whether to invite the RP(s) to participate and enter into an agreement
to gather Preassessment Phase information. In making this
determination, the trustee(s) should consider, but not be limited to,
the following factors: whether the RP(s) has been identified; the
willingness of the RP(s) to participate in the preassessment; the
willingness of the RP(s) to pay preassessment activities; and the
ability of the trustee(s) to conduct the Preassessment Phase in a
timely and cost-effective manner.
The completion of the Preassessment Phase includes written
notification to the identified RP(s), by the trustee(s) of the decision
to proceed with further damage assessment procedures. The proposed rule
provides that the trustee(s) must invite the RP(s) to participate in
the assessment process, if it is reasonably practicable to do so. The
RP(s) has ten calendar days in which to respond. If the response is
positive, the trustee(s) and RP(s) begin negotiations as soon as
practicable on an agreement detailing the RP(s) involvement. Should the
trustee(s) determine that the RP(s) is no longer participating in good
faith, but is using participation as an opportunity to obstruct the
assessment, the trustee(s) may terminate the agreement. The trustee(s)
may proceed with necessary assessment actions such as the assessment/
restoration plan and necessary data collection during those
negotiations, although the initial plan may have to be modified before
public review, once RP involvement is established. It is expected that
all parties will negotiate in good faith, realizing that a cooperative
assessment will likely result in the implementation of assessment and
the resultant restoration activities as soon as possible. If, however,
some type of agreement (including a phased joint agreement discussed
later or an agreement to agree in the future) cannot be reached within
45 calendar days, the trustee(s) may terminate the negotiations.
Phased Joint Assessments: To encourage cooperation between the
trustee(s) and the RP(s), the proposed rule authorizes the trustee(s)
and the RP(s) to enter into a phased joint assessment administrative
procedure for conducting assessments. A phased approach to conducting
joint assessments is authorized due to the apparent reluctance of the
trustee(s) and RP(s) to agree to work together before the actual
assessment process begins. The phased approach may allow a working
relationship to develop between the trustee(s) and RP(s) yet allow
maximum freedom to both parties should the joint process be determined
unworkable.
The assessment process may be divided into distinct phases and
components, and the RP(s) may be invited to participate in the various
phases and components. Prior to the beginning of each phase or
component, the RP(s) and trustee(s) may enter into an enforceable
agreement to conduct that particular phase or component. The
responsibilities of each party, including financial contributions by
the RP(s), will be identified in the agreement with provisions for
termination of the agreement and for nonperformance. The agreement
should identify who should collect the data and under what guidelines.
The agreement should also include provisions for actual possession and
ownership of data jointly collected and for funding. In addition, the
parties could agree who will analyze the data, and what criteria will
be used in the analysis. The use of oversight groups or public
involvement might also be addressed.
While it may be most expedient for the trustee(s) and RP(s) to use
internal personnel for data collection and analysis, such use may not
be possible. Should both parties not be able to agree upon the use of
joint internal personnel, the data gathering and/or preliminary
analysis of the data may be contracted out to an agreed upon third
party. Regardless of who conducts the assessment activities, the
trustee(s) maintains management and control of all such activities.
Once each phase or component is complete, the data collected and
analyzed will be provided in the administrative record, and will
eventually become part of the Report of Assessment.
The key incentive to a phased joint assessment is the agreement
that the trustee(s) and RP(s) are limited to the use of the jointly
collected data for that phase or component, even though they might not
enter into an agreement for the next phase or component. For example,
the trustee(s) and RP(s) may enter into an agreement to jointly collect
data for all injury determination studies. Once the data are collected,
the parties decide to forgo any other joint ventures. However, both
parties are barred from introducing collateral data collected outside
the assessment process for the injury determination studies covered by
the agreement. Each may conduct his own analysis of that existing data,
but the injury determination data collected outside the joint venture
could not be entered in the administrative record of the assessment,
and thus remain outside the assessment process and any judicial
determination under OPA. The purpose of the bar on collateral data is
to encourage cooperative assessments instead of the trustee(s) and
RP(s) conducting separate, duplicative assessments. Where a joint phase
or component is completed, it is a waste of time and money for either
party to repeat the study. To make this provision clear and enforceable
to all parties and equally enforceable, the regulations suggest that
the bar be spelled out in the enforceable agreement as well as provided
for in Sec. 990.17 of the proposed rule.
Assessment Phase
Assessment Component: The agreement to conduct portions of the
assessment component of the Assessment Phase should be as specific as
possible, with trustee and RP activities identified. NOAA suggests that
the following steps of the assessment component be considered for joint
agreements for Expedited and Comprehensive Damage Assessments: Injury
data collection and/or analysis of injury determination data to
quantify loss of natural resources' services. When practicable, the
trustee(s) and RP(s) are encouraged to combine data collection and
analysis into one agreement, resulting in a more efficient assessment
process.
Restoration Component: As with the rest of the assessment process,
the degree of participation of the RP(s) in developing the restoration
component is discretionary with the trustee(s) and RP(s). However, the
use of the knowledge and expertise of many RPs could be useful to the
trustee(s) and is encouraged. The proposed rule provides that the
trustee(s) must invite the participation of the RP(s) in the
restoration planning process if the RP(s) has participated in the
earlier assessment activities to date. In determining whether to invite
the RP(s) into the restoration process, the trustee(s) should consider,
but not be limited to, the following factors: (1) The willingness of
the RP(s) to participate and the reasons the RP(s) was not involved in
the earlier assessment activities (an uncooperative RP may have delayed
the earlier assessment process, or was unable to participate, but is
able to do so in the restoration effort; if the RP(s) has already
indicated no interest, it would be a waste of time to invite him to
join in the process); (2) the ability, i.e., knowledge, expertise,
unique natural resources, etc., of the RP(s) to participate in the
restoration process; and (3) the willingness of the RP(s) to pay for
restoration activities and for trustee costs.
If the RP(s) is involved in restoration, the trustee(s) and the
RP(s) shall develop a joint agreement describing the specific
responsibilities of the RP(s) and trustee(s). The agreement should
cover the activities of the RP(s) related to determination and
implementation of restoration activities. Since it is likely a range of
possible restoration activities and costs will be identified early in
the injury determination component, the development of a restoration
component of the DARP is actually initiated in the Assessment Phase.
Some RPs may want to actively assist in developing and implementing a
restoration plan. Others may prefer to pay the damages and leave the
restoration activities to the trustee(s). Again, agreements should
include specific responsibilities of the trustee(s) and RP(s). Such
agreements could cover the determination and implementation of
restoration alternatives.
Management Structure: NOAA does not propose a specific management
structure in order to conduct either a trustee or joint trustee-RP
assessment. However, NOAA recommends that the trustee(s) establish
committees or teams to manage the assessments. The core members of
these committees may already be selected in the prespill plans. As
discussed earlier, the committees should have a lead administrative
trustee and include representatives from all affected trustee agencies
and provide opportunities, ad hoc, for involvement from response
agencies and other interested parties, as deemed necessary by the
trustee(s).
Other Party Involvement: A great number of commenters indicated a
real concern that RP involvement will result in less than complete
recoveries through less than comprehensive assessments. To ensure that
the assessment and recoveries are adequate, the proposed rule
authorizes and encourages the trustee(s) to provide for ``outside''
review of assessment/restoration plans by the scientific and economic
communities. Comments as a result of the ``peer review process'' will
be a part of the administrative record. Peer reviewers will be selected
by the RP(s) and trustee(s). The trustee(s) should consult local and/or
national interest groups, scientific agencies, and universities for
suggestions of appropriate reviewers.
Also, the joint-management team will keep the public informed of
the progress of the assessment/restoration process and will allow
public review and comment of the on-going assessment and restoration
plans. In addition, at the discretion of the trustee(s),
representatives of local interested groups may be invited to attend
assessment management meetings to monitor the decisionmaking process.
Participation of the Responsible Party
Response to Comments
Comment: Some commenters recommended that all prespill planning
efforts be channeled through the development of the Area Contingency
Plans under section 4202 of OPA.
Response: NOAA agrees. When practicable, the trustee(s) and
potential RP(s) should use existing planning mechanisms to coordinate
their efforts. To do otherwise would be inefficient and duplicative.
Industry should be strongly encouraged to participate in and/or
coordinate with the technical working groups of the Area Committees
(including appropriate trustees) in the development and update of Area
Contingency Plans. Such plans identify and rank sensitive environments
and define appropriate protective strategies and removal technologies.
In addition, such prespill meetings with industry would allow the
trustee(s) to clarify the damage assessment process. Where prespill
planning is appropriate, the trustee(s) is still encouraged to involve
potential RP(s) in prespill planning and identification of potential
natural resources at risk.
RP(s) Involvement in the Assessment Process (General): While the
comments were very numerous and often very detailed on this subject,
they largely fell into two categories: (1) No RP involvement vs.
unlimited RP involvement and (2) RP involvement is possible under some
circumstances, with appropriate trustee oversight. The comments and
responses for this section follow these general categories.
Comment: Commenters indicated a wide range of views on this issue,
from unlimited RP involvement to no RP involvement, except to pay the
required damages. In this vein, many commenters stated that the RP(s)
will approach the damage assessment process with the goal of minimizing
the injury and resulting damage assessment. A multiple trustee
conducted assessment is difficult enough, but allowing the RP(s) into
the process could disrupt the assessment. Others indicated further
potential problems, claiming that allowing the RP(s) in the assessment
process is tantamount to allowing the RP(s) to determine its own
damages. In any assessment, it is in the public's interest to conduct a
full and fair assessment. It is in the interest of the RP to show
little injury so that the damages will be lessened. Others were
concerned that consultation and involvement of the RP in the assessment
process may seriously prejudice the trustees' ability to recover
damages, particularly through negotiations. Any involvement of the RP
should require unanimous approval of the trustees.
Many commenters expressed the opposite view, claiming that the
opportunity for RP involvement in a damage assessment is a legal
necessity as well as fortuitous. Since the damage assessment process
determines the amount of damages the RP will pay, it would be unfair to
exclude the RP from the process. In addition, the RP would serve as a
control on ``state and federal bureaucrats,'' ensuring that assessments
would be cost-effective. At least one commenter indicated that
assessments conducted without providing the RP the opportunity to
participate should not be awarded the force and effect of a rebuttable
presumption. Others indicated that while the RP's interests may be
different than those of the trustees, involvement of the RP will likely
encourage the RP to pay the damages rather than challenge the
assessment in court. Other possible advantages of RP involvement
included: Elimination of costly duplication of studies; ensuring that
studies/investigations are planned to answer pertinent questions; and
providing another source of funding for studies that must be conducted
in a timely manner. RPs are fully aware of the legal responsibilities
under OPA and are quite willing to cooperate with the trustee(s) to
resolve them in a fair and timely fashion. Others justified substantial
and preferential involvement of the RP based upon the ruling in Ohio v.
Department of the Interior, which upheld DOI's decision to allow
greater RP participation than the public as a whole. Other commenters
insisted that any participation by the RP is at the discretion of the
RP and/or the trustee(s).
Other commenters stressed that cooperation must work both ways. The
trustee(s) should also be willing to cooperate with the RP. The
commenters noted that it can be more expeditious for the RP to fund the
work, with oversight or ``audit'' by the trustee(s). Some RPs (either
foreign or domestic based) may have neither the motivation nor the
resources for close cooperation with the trustee(s). Such RPs should
not be penalized for not participating to the fullest possible extent.
Some suggested that public perception of the RP conducting the
assessment might be helped by agreeing in advance upon a list of ``pre-
approved'' consultants to assist in ``peer review'' and/or to carry out
the actual studies. The use of assessment ``over-sight'' groups
consisting of RPs, scientists, environmental groups and the public was
also suggested. One commenter suggested that a generic agreement be
drafted by representatives of trustees and RP and be provided as a
model agreement for use in the event of an actual discharge. This
agreement would identify the activities of the RP and trustees leaving
little need for additional negotiations for specific discharges. This
model agreement would have gone through a public review process and the
roles of the respective parties would be already identified, thereby
reducing the time needed to negotiate specific activities and ensuring
that the public's concerns were addressed.
Response: Many of the concerns over RP involvement represent actual
discharge scenarios where involvement of the RP(s) was difficult and
frustrating to the trustee(s). On the other hand, the advantages of a
cooperative RP in an assessment have resulted in smooth assessments and
a focus on the environment, not the courthouse. It is virtually
impossible for the proposed rule to dictate the level of involvement of
the RPs in every possible assessment. Each discharge will present a
different set of circumstances, with different RPs and trustees. As
explained elsewhere in the preamble the eventual degree of involvement
of the RP(s) is at the discretion of all the trustees involved in the
assessment and RP(s). On the whole, cooperative involvement of the
RP(s) will likely provide many benefits to the assessment process, but
currently trustees and RPs have little experience in conducting
cooperative assessments. The proposed rule reflects this lack of
experience, and strongly encourages that the trustee(s) first look to a
cooperative assessment, even if such cooperation can only be fostered
through the use of a series of joint agreements. However, OPA does not
necessitate the loss of the rebuttable presumption due to lack of RP
involvement and neither does the proposed rule. Since participation of
the RP is optional on the part of the RP(s) and trustee(s), those
opting not to participate are not penalized. The assessment remains
under the direction of the trustee(s).
NOAA agrees with the suggestion that a model agreement would be
beneficial and provides a sample of such an agreement for comment in
Appendix B. Such an agreement, however, would not be mandatory. NOAA
perceives that trustees and potential RPs are on the verge of
conducting a new generation of cooperative assessments, but they need
time to work out the details and provide for adequate checks in the
process. The proposed rule provides for that period of testing and
adjustment.
A large number of commenters also expressed the opinion that RP
involvement is helpful in some phases of the assessment if conducted
under the oversight of the trustee(s). However, there was little
agreement over which phases of an assessment might be appropriate for
RP involvement and the appropriate degree of oversight. Various phases
of the assessment and respective comments are discussed below.
Comment: Some commenters were strongly opposed to allowing the
RP(s) more access to the assessment process than the public in general.
Others indicated that additional access was a right accorded the RP(s),
because of the financial stake of the RP(s). One commenter contended
that the RP could serve in an ``advisory'' role to avoid duplication of
effort and studies. Another commenter noted that, although the RP has
the constitutional right to participate in the assessment,
participation is discretionary on the part of the RP and cannot be
mandatory.
Response: The proposed rule does provide the RP(s) with more access
to the assessment process than the general public. This is consistent
with other provisions in connection with oil discharges, i.e., the
response and cleanup. The greater access is not because of the
financial stake of the RP(s), it is NOAA's position that a cooperative
RP can assist in restoring the environment in as short a time as
possible and, like the cleanup, may be able to provide services,
funding and/or personnel not available to the trustee(s) in either a
cooperative or advisory role. However, the trustee(s) is required to
keep the public informed of the participation of the RP(s) and provide
an opportunity for meaningful public participation, not only regarding
the involvement of the RP(s), but for the entire assessment process.
Also the RP(s) does have the right to refuse participation.
``Preassessment''
Comment: Concerning the preassessment, several commenters indicated
that since preassessment decisions need to be made quickly, involvement
of the RP would likely delay the process. Involving the RP in the
preassessment may prevent the trustee(s) from fully exploring all the
options for the assessment and resulting restoration activities. Others
indicated that the RP should be invited to participate from the onset
of the discharge, since it is possible that the RP can provide data
necessary for use in the preassessment to determine the nature and
extent of subsequent assessment activities. A cooperative preassessment
would likely foster a cooperative assessment and possible early
settlement of claims. In addition, early RP involvement does not
prejudice public participation, since the assessment/restoration plan
will be available for public review.
Response: The proposed rule encourages the trustee(s) to involve
known RPs in the Preassessment Phase. However, because of the
constraints in the Preassessment Phase, the proposed rule does not
require the trustee(s) to invite the RP(s) into the preassessment. The
various affected trustee agencies must focus the initial efforts into
coordinating their early efforts and coordinating with the OSC agency.
Efforts to involve the RP(s) should not detract from this focus.
``Assessment/Restoration''
Comment: Commenters who agreed with the general principle of RP
involvement indicated that the assessment and restoration components of
the assessment are the most appropriate for such involvement. However,
the nature and extent of this involvement were widely contested.
Concerning the initial invitation and acceptance, many commenters
indicated that the thirty-day waiting period after Notice of Intent To
Perform An Assessment provided in 43 CFR part 11 is not practicable for
discharges of oil and some recommended a ten-calendar day period for
response from the RP. Considering the degree of involvement, some
commenters indicated that the RP can provide very useful information
and financial resources for planning the assessment/restoration that
might be unavailable to the trustees. An assessment/restoration plan
developed with the full involvement of the RP will likely be cost
effective and efficient. In addition, the RP would likely be more
willing to participate in the assessment and restoration activities if
involved in the planning process. One commenter noted that
participation by the RP should also allow for keeping the RP informed
as to how monies recovered are spent in restoration. Some commenters
recommended the RP's role be similar to response actions, where the RP
could develop and submit plans to assess natural resource damages to
the trustee(s) for their approval. Once approved, the RP could
implement the plans under the direction and monitoring of the
trustee(s). One commenter recommended that the degree (size, duration,
etc.,) of the discharge is immaterial to the involvement of the RP in
the assessment process. Another commenter asked for clarification of
what circumstances might justify denial of RP participation.
Others recommended a more limited role for the RP, i.e., the up-
front funding or the conduct of actual assessment and restoration
activities planned and approved by the trustee(s). However, such
involvement must be tempered by the realization that under OPA the
trustee(s) is ultimately and continuously responsible for all
assessment/restoration activities, regardless of who pays for and/or
conducts them. Some commenters indicated that OPA requires that the
trustee(s) develop and implement a restoration plan, and any
involvement of the RP contravenes this statutory mandate. One commenter
noted that a ``requirement'' to invite RP participation contradicts the
statement in the proposed rule that such participation is at the
discretion of the trustee.
Response: The nature of these comments and past experience with oil
discharges indicate to NOAA the wide range of concern as well as
support concerning RP involvement in any natural resource damage
assessment. In some instances, extensive participation of the RP(s) has
led to an early settlement of claims. In other assessments, RP
involvement has, from the trustee's point of view, resulted in undue
delays and a laborious process. The proposed rule follows NOAA's
general philosophy of active involvement of the RP(s), but leaves the
degree of that involvement up to the trustee(s), since it is the
trustee(s) who is ultimately responsible for the conduct of the
assessment/restoration process. The trustee(s) is encouraged to invite
the known RPs to be involved in the assessment/restoration process. If
not contacted during the Preassessment Phase, the trustee(s) should
contact the known RPs as soon as practicable following the
determination to proceed with some form of assessment procedure. The
RP(s) should indicate a willingness to participate within ten days of
receipt of the invitation. The trustee(s) and interested RP(s) should
begin negotiations concerning the degree of involvement as soon as
possible following that ten-day period.
Incentives for the trustee(s) to involve the RP(s) are numerous,
including a less litigious atmosphere, possible immediate funding for
assessment activities, and additional data and personnel support. The
RP(s) should also recognize the advantages of involvement, including
lower costs since dual assessments may be avoided. The RP(s) can also
often provide considerable expertise in the effects of oil upon natural
resources and benefit from the public perception that there is a real
interest by the RP(s) in restoring the environment.
Both parties should negotiate in good faith, with restoration of
the environment as the ultimate goal. The participation of the RP(s)
throughout the entire assessment/restoration process need not be
established, and parties are free to negotiate a series of agreements
as the assessment/restoration continues. The involvement of the RP(s)
should be clearly identified in the DARP, so that appropriate review
and comment will be accorded. All assessment/restoration activities
must remain under the direction and responsibility of the trustee(s),
although the trustee(s) may allow the RP(s) to conduct all or part of
an assessment. As with all restoration components and assessment
components under EDA and CDA, appropriate peer review must be provided
to ensure that the components are adequate. In addition, the trustee(s)
is reminded that the ultimate responsibility and results of the damage
assessment rest with the trustee(s).
While the size of the discharge may be immaterial to the basic
decision of RP involvement, it is relevant to the degree of RP
involvement. Discharges appropriate for the compensation table or the
Type A model require minimal assessment activities; therefore possible
RP activity would be limited to restoration planning and
implementation, unless the RP(s) opted to finance and possibly conduct
either an EDA or CDA.
``Phased Joint Assessments''
Comments: During the workshops and the March 13, 1992, ANPRM, NOAA
presented the concept of a ``phased joint assessment,'' allowing the
trustee(s) and RP(s) to jointly conduct certain phases of an
assessment. Commenters indicated that, for joint work, industry would
need some assurance that the damages amount determined by the process
is reasonable and supportable. Others indicated that such agreements
should be designed to avoid the conduct of dual assessments and provide
provisions for nonperformance. Some commenters indicated that
nonperformance provisions should only apply to RPs and not trustees,
since the financial obligations for the assessment always rest with the
RP.
Others suggested a dispute resolution mechanism involving impartial
third parties. At least one commenter stressed that it must be
absolutely clear that completion of one phase indicates no obligation
to proceed with another phase. Such agreements would give the RP(s) the
greatest incentive to participate in and fund the assessment work, and
still allow the trustee(s) to ensure that the assessment is carried out
in accordance with OPA. Some commenters indicated that the joint
assessment process may work well for data collection and analysis or
for determining the extent of injury to the natural resources. However,
some thought this cooperation would be unacceptable in the economic
valuation portion of the assessment process where the actual amount of
damages is determined based upon that injury because of the
controversial nature of such damages in the RP community.
Response: The proposed rule authorizes the trustee(s) and RP(s) to
enter into enforceable agreements in order to conduct any phase or
component of a natural resource damage assessment. The purpose of these
agreements is to foster cooperation when practicable and provide
incentives to both the trustee(s) and RP(s) to meet their respective
obligations. The phased joint assessments are not mandatory and may
cover any phase or component in the assessment process. The completion
of one agreement does not obligate either the trustee(s) or the RP(s)
to any further joint activities. Since these agreements can cover
distinct phases, NOAA does not deem it necessary for third party
dispute resolution, although non-binding mediation has been suggested.
If disputes could not be settled through regular trustee and RP
channels, parties could agree to terminate the agreement and not
participate in any further joint activities.
These agreements seem most appropriate for the conduct of
assessment/restoration activities, but are certainly allowed for
preassessment activities. The trustee(s) and RP(s) will most likely use
these agreements for the EDA, since a cooperative RP is important to
that procedure, and there is a limited suite of studies upon which
agreements could be negotiated and finalized in a reasonable amount of
time. However, these types of agreements may also be applicable to a
CDA, where the trustee(s) and RP(s) wish to eliminate dual assessment
studies.
NOAA disagrees with the general notion that nonperformance
provisions should only apply to RPs. Trustee agencies should also meet
their agreed upon duties.
VII. Compliance/Conflict With Applicable Laws
Section 990.18 pertains to the relationship of this proposed rule
to other laws. Section 990.18(a) requires that the trustee(s) comply
with all human worker health and safety requirements, as specified in
the NCP. In many cases, the conduct of an assessment will require
extensive field work during an actual discharge and/or cleanup. The
trustee(s) is responsible for ensuring that the assessments are
conducted in accordance with those applicable laws.
Section 990.18(b) provides that other environmental and procedural
laws also apply to the assessment/restoration process. This proposed
rule mentions some of the more well-known laws, but the indicated list
is for the purpose of example and is not inclusive.
Subsection (c) mirrors the OPA provision that OPA does not preempt
state oil spill laws and related regulations, thus allowing for the
potential for possible duplicative and conflicting claims and
recoveries. Since section 1018 of OPA does not prevent states from
establishing additional liability as a result of a discharge of oil,
this proposed rule cannot require state trustees to adopt or follow the
procedures promulgated by NOAA in lieu of other state laws or damage
assessment schemes. However, since OPA also prohibits the double
recovery of natural resource damages, all trustees will be encouraged
to conduct joint assessments and present a total unified claim for
damages. Such claims should be deemed sufficient by the trustees to
restore the injured natural resources and/or services and for
diminution in values until restoration is complete.
As discussed in the ``Use of Sums Recovered'' section of this
proposed rule, any monies received under OPA must be used to restore,
rehabilitate, replace, or acquire the equivalent of the affected
natural resources and/or services. In this proposed rule, NOAA
encourages the trustee(s) to concentrate upon ``fixing the resources''
and not be distracted by ill-fated ventures of attempting to divide the
natural resources and pursue individual claims.
The unified trustee approach will also encourage participation from
the RP(s), instead of a multi-assessment process that would encourage
the RP(s) to pursue litigation in order to lessen the number of claims.
In addition, unified trustees will allow the pooling of resources for a
more effective assessment and, if necessary, litigation.
While NOAA cannot require the coordination and cooperation of all
trustees, there are some incentives for such cooperation. For example,
state trustees should be encouraged to coordinate with federal
trustees, since section 7 of E.O. 12777, 56 FR 54757 (October 22,
1991), requires that monies from the Fund for the ``initiation of
assessments'' are provided to the federal trustees. The federal
trustees may then distribute such monies to other trustees.
As discussed in ``Trustee Coordination'' and ``Prespill Planning,''
many of these potential conflicts could be settled in advance of an
actual discharge.
Response to Comments
Compliance With Applicable Laws and Statutes
``Double Recovery''
Comment: Many commenters were concerned that since OPA does not
preempt state laws, the trustee(s) would pursue claims under both state
law and OPA, thereby using conflicting methodologies and enhancing the
possibility of double recovery. Some suggested that the NOAA
regulations should preclude recovery under OPA if damages were being
pursued under state law. Others suggested that NOAA require that the
trustee(s) proceed under either state law or OPA and thereby waive all
claims under the statutory scheme not selected. Some commenters,
recognizing that NOAA could not direct the trustee(s) to forgo claims
under applicable state or federal statutes, suggested that early
coordination among the trustees be strongly encouraged to avoid
parallel assessment and claims procedures. Other commenters suggested
that double recovery can be avoided by the trustees conducting joint
assessments resulting in a single unified claim.
Response: NOAA agrees with the last commenters. Where Congress has
specifically declined to preempt state law in section 1018 of OPA,
NOAA's proposed rule cannot force trustees to limit their options under
applicable state or federal law. However, the regulations do encourage
early coordination among the trustees and, in accordance with section
1006(d)(3) of OPA, prohibit double recovery. Congress, in the
Conference Report accompanying OPA, encourages coordinated assessments
but does not preclude parallel assessments. (H. Con. Rep. No. 101-653,
101st Cong. 2d Sess. 109 (1990).) Accordingly, NOAA has determined that
the proposed rule cannot require joint trustee assessments. NOAA
emphasizes, however, that trustees must recognize the potential of
violating the double recovery prohibition if separate assessments are
conducted, and trustees are encouraged to avoid even the appearance of
double recovery by conducting a single joint assessment. In addition,
the possibility of multiple assessments will likely foster litigation
between the trustee(s) and the RP(s), thus delaying the assessment and
restoration process. NOAA also notes that the trustee(s) could address
many of these concerns through prespill planning and coordination.
Comment: While double recovery is clearly disallowed under OPA,
NOAA received comments that argued that natural resource damage
assessment regulations must guard against ``counting any resource for
two purposes.''
Response: Injury to a given natural resource and the attributable
cost of restoration, rehabilitation, replacement, or acquisition, can
only be assessed once for purposes of a compensable claim. However, OPA
also provides for recovery of diminution in value during the interval
between the discharge and complete restoration. Any number of ``service
flow'' costs, attributable to the natural resource injury, may be
appropriately claimed, under OPA rules. These compensable losses would
be additive, and would not constitute double recovery. Therefore, it
would be incorrect to suggest, as the comment cited above seems to,
that the OPA rules disallow counting any resource for two purposes.
Comment: One commenter expressed concern over the lack of
discussion of the applicability of the National Environmental Policy
Act (NEPA) to the assessment/restoration process.
Response: NOAA, in a change from the earlier notice, has determined
that NEPA does apply to the assessment/restoration actions conducted by
the trustee(s) following a discharge of oil. NEPA requirements should
not pose an additional burden in time and effort on the trustee(s), but
will be incorporated into the assessment/restoration process.
Comment: Some commenters pointed out that certain states are in the
process of completing, or have completed, procedures for conducting
natural resource damage assessments. Concerns were raised over the
possibility of conflicting procedures.
Response: NOAA fully recognizes that states have the authority to
develop their own assessment procedures under applicable state law.
NOAA has attempted to consider the different procedures in the course
of the rulemaking, but since many state statutes do not require that
the measure of damages be the same as OPA, many procedures are not
applicable to this rulemaking or OPA. When possible, NOAA has attempted
to be as consistent with the applicable state procedures. It is also
expected that the states currently contemplating developing assessment
procedures will attempt to be consistent with this proposed rule.
Comment: One commenter was concerned that a unified trustee
approach may not always be practical, particularly where the RP is also
a trustee.
Response: If those circumstances would arise, a unified approach
may still be possible, but different representatives of the trustee/RP
may need to be identified for either RP or trustee purposes. Of course,
there may be circumstances where parallel assessments would be
preferable until liability issues were settled with the RP/trustee.
Comment: Commenters also raised the issue of trustee conflicts over
ownership of a particular resource, and that the regulations should
attempt to clarify which resources should be appropriately claimed by
which trustee. Other commenters indicated the regulations should not
attempt to address the issue.
Response: NOAA agrees with the latter approach. Congress provided
very broad authority for federal, state, tribal and foreign trustees to
claim trusteeship over natural resources. Section 1006 of OPA states
that each trustee entity may exert trusteeship over natural resources
``belonging to, managed by, controlled by or appertaining to'' that
trustee entity. See 33 U.S.C. 2706(a). Additionally, many natural
resources fall within the trusteeship of two or more trustees. For
example, a salmon spends part of its life in federal waters, and part
in state waters. Further, a tribe may also have certain rights over the
salmon. Thus, rather than waste time and resources on negotiations and
litigation in allocating natural resources into federal, state, tribal,
and possible foreign categories, NOAA encourages the trustees to
conduct unified assessments, complete with restoration plans that
address the affected natural resources as a whole and not as a trustee-
specific piece-meal process. Trustees are encouraged to remember that
the purpose of the OPA assessment/restoration process is to restore
affected natural resources and/or services in an efficient and orderly
manner. Arguments over such things as the ownership of a duck merely
delay this process and, from the duck's point of view, are immaterial.
As mentioned earlier, trustee prespill planning and coordination could
alleviate this concern.
VIII. Review of Regulations
Although OPA does not contain a specific provision for the update
of this proposed rule, NOAA strongly believes that the proposed rule
must be reviewed on a regular basis to keep the procedures current with
new developments. Therefore, NOAA is recommends that this proposed rule
be reviewed and revised as appropriate at least every five years.
Preassessment Phase
Subpart B Preamble
General
Purpose/Scope
Natural resource damage assessment begins with the Preassessment
Phase. The Preassessment Phase provides guidance to the natural
resource trustee(s) for early action in the case of a discharge of oil
through a two step process: (1) Preassessment Determination; and (2)
Damage Assessment Determination. The first step or Preassessment
Determination requires a decision by the trustee(s) to continue with
the Preassessment Phase. Once preassessment is justified, the
trustee(s) proceeds to the Damage Assessment Determination. In this
second step, the trustee(s) decides which damage assessment procedures
to undertake, if any. The trustee(s) may conduct limited data
collection and analysis during these steps. The Preassessment Phase
also identifies the conditions for notification, coordination,
estimation of assessment costs, reporting, and emergency restoration.
Additional guidance on conducting preassessment can be found in the
Preassessment Phase Guidance Document. Michel, J., and E. Reinharz.
1993. Preassessment Phase Guidance Document. Research Planning Inc.,
Columbia, SC & NOAA-Damage Assessment Regulations Team, Washington, DC.
Notification: A natural resource damage assessment begins with
notification of a discharge of oil. Notification should be consistent
with the NCP. According to the NCP, the OSC or lead response agency
generally provides notification to the natural resource trustee(s) when
natural resources and/or services may be injured by a discharge of oil.
If the trustee(s) learns of an unidentified or unreported discharge of
oil, the trustee(s) must report that discharge to the appropriate
authority as designated in the NCP.
After learning of a discharge of oil, the trustee(s) should attempt
to notify all other known potential trustees of the possibility of a
natural resource damage assessment. Actions taken by the trustee(s)
must be consistent with the NCP and this subpart.
In addition, in accordance with section 1011 of OPA, the OSC or
lead response agency must consult with the affected trustee(s)
concerning removal actions.
Coordination: To the extent practicable, the Preassessment Phase
should be coordinated with the response agency(ies) (consistent with
the NCP), trustee(s), and possibly RP(s). Such coordination fosters
cooperation and early and effective implementation of the Preassessment
Phase. While the proposed rule encourages the trustee(s) to contact the
RP(s), the trustee(s) cannot afford to delay the Preassessment Phase
while negotiating with the RP(s). Although not required by this
proposed rule, prespill planning, as outlined in Sec. 990.16, will
facilitate the coordination of the Preassessment Phase and other
assessment/restoration actions.
Preassessment Phase Costs: Preassessment Phase costs include and
are recoverable only for trustee-approved activities that deal directly
with preassessment. Examples of Preassessment Phase costs include, but
are not limited to, costs necessary for: (1) Notification; (2)
coordination; (3) preassessment determination; (4) damage assessment
determination; (5) data collection and analysis; (6) report
preparation; and (7) emergency restoration. Excluded from preassessment
costs are strictly response-related actions, and costs that reflect
non-incident specific activities performed by the trustee(s) in the
management of natural resources and/or services. Preassessment costs
should be supported by appropriate and sufficient documentation.
Preassessment Phase Report: At the conclusion of the Preassessment
Phase, the trustee(s) should document: preassessment actions, estimated
costs related to those actions, and decisions whether to proceed with
preassessment and damage assessment/restoration actions. These
materials become the Preassessment Phase Report. The report should
provide sufficient information for use in the damage assessment/
restoration process, if necessary. If no additional actions are
undertaken, the Preassessment Phase Report becomes the Report of
Assessment. If the trustee(s) conducts further assessment/restoration
actions, the Preassessment Phase Report becomes part of the Report of
Assessment. If the trustee(s) decides to proceed with damage assessment
and restoration actions, the next step involves the development of a
DARP to guide the trustee(s).
Preassessment Phase Process
Preassessment Determination: Following notification of a discharge
of oil, the trustee(s) must conduct a Preassessment Determination to
decide whether to continue with the Preassessment Phase. The
determination is intended to be primarily a ``desktop'' exercise that
is based upon readily available information on the nature of the
discharge and environmental setting; namely the circumstances of the
discharge incident, oil characteristics, nature of the receiving
environment, and natural resources and/or services characteristics.
Using this information, the trustee(s) should determine if: (1) The
discharge of oil does not qualify for the exclusionary conditions as
set forth in section 1002(c) of OPA; (2) the trustee(s) has authority
under OPA to assert damage claims for natural resources and/or services
that may be adversely affected by the discharge of oil; and (3) there
is a reasonable probability that the trustee(s) can make a successful
damage claim based on the scientific, economic, and legal merits of the
case (i.e., potential for injury resulting from the discharge of oil
and successful and meaningful restoration and/or compensation).
If these conditions are met, the trustee(s) may proceed with
preassessment actions. If the trustee(s) determines that all three
conditions are not met, further preassessment activities should not be
conducted. Costs incurred to this point are not recoverable as damages
if the discharge meets the exclusionary conditions of section 1002(c)
of OPA. Otherwise, the costs up to this point are recoverable from the
RP(s) or Fund. Damage Assessment Determination: Following the decision
to proceed with the Preassessment Phase, the trustee(s) collects data
sufficient to decide which damage assessment procedures to conduct, if
any. The proposed rule provides that the trustee(s) should follow the
steps outlined below in Damage Assessment Determination:
(1) Characterize Discharge and Environmental Setting. Based on data
collection and analysis, the trustee(s) should first characterize the
discharge and environmental setting. These characterizations encompass
the following categories: circumstances of the discharge incident; oil
characteristics; nature of the receiving environment; and natural
resources and/or services characteristics. These activities are similar
to those undertaken in the Preassessment Determination, but are now
conducted in greater detail. Characterization of the discharge and
environmental setting will serve as the basis for the analysis of the
following steps.
(2) Determine Potential Exposure. Once the trustee(s) has
characterized the discharge and environmental setting, he should then
determine the potential for direct exposure from the discharge of oil.
The exposure pathway through which the oil may be transported should
also be determined. The potential for exposure may be based upon
fingerprinting or chemical analyses of the pathway, bioaccumulation
information, and transport/fate models. The trustee(s) is further
required to consider the indirect adverse effects in a natural resource
and/or service, such as the reduction or elimination of higher trophic
level resources not exposed to the discharge of oil which rely on
affected lower food chain resources exposed to the discharge of oil,
e.g. birds that feed on fish. In the absence of exposure, the
trustee(s) should determine impaired/diminished use of a natural
resource and/or service, such as a recreational beach threatened by a
discharge of oil. Such injury determinations are conducted in the
following step.
(3) Determine Potential Injury. Simultaneous with the above step,
the trustee(s) should determine those natural resources and/or services
that may be directly or indirectly injured from the discharge of oil.
Potential injury determination requires that the trustee(s) describe
the manner in which the physical, chemical, biological, or other
attributes of natural resources and/or services may be adversely
affected. Chemistry, toxicity and ecological effects information, and
effects models may be useful in determining potential injury to natural
resources and/or services. If there is no potential for injury,
preassessment actions should cease and no further damage assessment
procedures should be conducted.
(4) Characterize Potential Risk to Natural Resources and/or
Services. Characterizing risk requires that the trustee(s) evaluate the
potential cause-effect associations from the weight of evidence
developed in the previous steps as well as using best professional
judgment. A formalized risk assessment procedure may be used, but is
not required. Potential risk of injury to natural resources and/or
services may occur if it is likely to result from the discharge of oil
as defined in this proposed rule.
The correlation of field and laboratory information is the best
means of establishing potential risk. If such correlation is not
possible, potential risk may be determined relative to established
standards or criteria, health advisories, bans on the use or
consumption, or limits on harvesting applicable to the resource. Where
literature or regulatory information is insufficient, transport/fate/
effects models may provide evidence of possible links between the
discharged oil and predicted injuries.
Once the trustee(s) determines that there is the potential for risk
of injury to natural resources and/or services, the trustee(s) should
continue with the Damage Assessment Determination. If there is no
potential for risk, preassessment actions should cease and no further
damage assessment activities should be conducted.
(5) Estimate Extent of Injury to Natural Resources and/or Services.
The trustee(s) should estimate the current and future extent, i.e.,
magnitude and duration, of injury to natural resources and/or loss of
services after establishing potential risk to those resources and/or
services. This determination requires that the trustee(s) define the
spatial and temporal boundaries of the discharge and its effects on
natural resources and/or services. This information should be described
or mapped in such a way as to provide a sequential summary of the
discharge and associated effects.
Defining boundaries for potentially affected natural resources and/
or services requires comparison of affected to unaffected conditions
using baseline, reference, and/or control data. Current trends can be
based on measurements and/or model predictions of existing conditions.
Future trends can be based on model predictions of anticipated
conditions. Identification of boundaries makes it more likely that all
natural resources and/or services affected by the discharge of oil will
be included.
If estimates on the extent of injury to natural resources and/or
services can be determined in a cost-effective manner, the trustee(s)
should then proceed with the damage estimation using any of the
procedures in the proposed rule. If such estimates cannot be determined
in a cost-effective manner, the trustee(s) should cease preassessment
activities.
(6) Estimate Damages. Damage estimation should encompass: (1) the
environmental and/or economic values of a natural resource and/or
service potentially injured until recovery; (2) the likely cost of
restoration actions, if any; and (3) all assessment-related costs. As
with all estimates during the Preassessment Phase, such estimates are
strictly preliminary and subject to change as more information is
obtained.
If damage estimation is practicable, the trustee(s) should then
proceed with selecting the most appropriate damage assessment
procedure. However, if the Preassessment Phase results in a
determination that further data collection and analysis are not
necessary, no additional assessment actions are to be taken.
The proposed rule authorizes the trustee(s) and RP(s) to agree to
undertake limited injury determination studies to determine that no
significant injury to natural resources and/or services has resulted
from the discharge. While this may seem to be an unlikely scenario,
there may be circumstances when the trustee(s), possibly in conjunction
with the RP(s), would like to conduct additional studies for scientific
or public information purposes. Where no injury is identified, the
costs of these studies are not recoverable under this subpart and must
be borne by the trustee(s). Should such additional studies indicate
that significant and quantifiable injury has occurred to natural
resources and/or services, the trustee(s) may reinitiate the
Preassessment Phase, and the costs are then part of the assessment
costs.
Select Damage Assessment Procedures
Following the decision to continue damage assessment, the
trustee(s) is encouraged to use the damage assessment procedure that is
most appropriate to the discharge. To assist the trustee(s) in making
this decision, the proposed rule identifies general considerations and
specific factors when selecting the procedure(s). These proposed
considerations and factors are not rigid, nor does the proposed rule
require the trustee(s) to select a particular procedure for a
particular discharge. The trustee(s) shall generally consider the
following in determining which type of damage assessment approaches to
utilize: (1) The size and nature of the discharge and environmental
setting; (2) the extent to which the discharge of oil is expected to
cause injury to natural resources and/or services; (3) the expected
environmental and/or economic values provided by the affected natural
resources and/or services; (4) the extent to which response actions
carried out or planned will avoid further injury to natural resources
and/or services without further action; (5) the extent to which the
discharge meets the conditions for using the potential damage
assessment procedures; (6) the extent to which injury to natural
resources and/or services can be determined with available information
and quantification methods; (7) the extent to which restoration
alternatives can return injured natural resources and/or services to
their baseline or comparable conditions; (8) the extent to which
damages based on injury to natural resources and/or services can be
determined with available information and quantification methods; and
(9) whether the anticipated damage assessment procedure(s) is cost-
effective. Specific selection factors for each damage assessment
procedure are provided below.
The trustee(s), using his best professional judgment, has the
option to use any of the four procedures, singly or in combination, to
craft an assessment process that is most appropriate for the situation
at hand. The assessment designed by the trustee(s) would receive the
rebuttable presumption, so long as the procedures included in that
assessment are encompassed by this proposed rule and there is no double
recovery.
NOAA is specifically requesting comments on the advantages or
disadvantages of proposing such a range of procedures. It is hoped that
the trustee(s) can use this set of standard procedures in a beneficial
manner to craft an assessment that is most appropriate for the
particular discharge of concern.
Compensation Formulas: The estuarine/marine and inland waters
compensation formulas proposed are applicable to the vast majority of
discharges of oil. These compensation formulas are available for use by
the trustee(s) for relatively small discharges, particularly when
assessing discharges that occur in areas where it would be difficult or
very costly to ascertain precise environmental effects, e.g., small
discharges in open water or occurring in areas that are subject to
frequent environmental insults. Where the circumstances of the actual
discharge are determined by the trustee(s) to be far out of bounds of
the compensation formula, then the trustee(s) should use one of the
other assessment procedures.
The formulas assume various effects to natural resources likely to
occur as a result of a discharge of oil. These assumptions take into
account the amount and type of oil discharged and region and habitat
type in which the discharge occurs. This approach allows both a
national consistency and regional specificity. Also, the use of
dispersants cannot be factored in since there likely will be additional
effects in the water column as a result of using them. For the purposes
of the compensation formulas, residual and tidal currents are assumed
to be zero, the discharge is assumed to be instantaneous at the water
surface, seasonal temperatures and wind speed are ``set at average
values,'' as explained in volume I of the technical document, and wind
direction is controlled to avoid having the discharge move into a
different habitat. Also, the ranges of discharge sizes covered by the
formulas are: 10 gallons to <1,000 gallons;="" 1,000="" gallons="" to=""><5,000 gallons;="" 5,000="" gallons="" to=""><10,000 gallons;="" and="" 10,000="" gallons="" to="" 50,000="" gallons.="" however,="" if="" there="" are="" significant="" differences="" between="" the="" assumptions="" in="" the="" formulas="" and="" incident="" of="" concern,="" then="" the="" formulas="" may="" not="" be="" appropriate="" for="" the="" discharge="" of="" concern.="" finally,="" these="" formulas="" allow="" an="" estimate="" of="" damages="" per="" gallon,="" taking="" into="" account="" average="" restoration="" costs="" plus="" average="" lost="" direct="" use="" values="" pending="" restoration.="" passive="" use="" (nonuse)="" values="" are="" currently="" not="" included="" in="" the="" formulas.="" therefore,="" discharges="" under="" 50,000="" gallons="" that="" are="" likely="" to="" result="" in="" a="" significant="" loss="" in="" passive="" use="" values="" should="" be="" assessed="" under="" another="" procedure.="" the="" type="" a="" model:="" when="" considering="" using="" the="" type="" a="" model="" for="" an="" assessment="" under="" opa,="" the="" trustee(s)="" should="" consider="" several="" factors.="" basically,="" the="" type="" a="" may="" be="" appropriate="" when="" the="" trustee(s)="" determines="" that="" the="" compensation="" formulas="" of="" subpart="" d="" of="" this="" part="" alone="" are="" not="" sufficient="" to="" estimate="" the="" injury="" and="" damages="" resulting="" from="" the="" discharge,="" and="" that="" there="" is="" no="" other="" cost-effective="" procedure="" available="" to="" estimate="" the="" injury="" and="" damages="" resulting="" from="" the="" discharge.="" key="" factors="" involved="" in="" the="" decision="" to="" use="" the="" type="" a="" model="" for="" an="" assessment="" under="" opa="" are="" found="" at="" 43="" cfr="" 11.33.="" in="" the="" preamble="" to="" the="" final="" rule="" incorporating="" the="" type="" a="" model,="" doi="" stated:="" the="" rule="" requires="" that="" whenever="" an="" injury="" to="" a="" natural="" resource="" due="" to="" an="" incident="" occurs="" in="" the="" coastal="" or="" marine="" environment="" a="" type="" a="" assessment="" shall="" be="" performed="" unless="" the="" limitations="" of="" the="" natural="" resource="" damage="" assessment="" model--coastal="" and="" marine="" environments="" (nrdam/cme)="" make="" it="" inappropriate="" to="" the="" given="" incident.="" the="" assumptions="" and="" data="" bases="" contained="" in="" the="" nrdam/cme="" constrain="" its="" applicability="" to="" only="" selected="" types="" of="" discharges="" or="" releases="" and="" resources.="" for="" example,="" the="" discharge="" or="" release="" must="" occur="" in,="" or="" enter="" into,="" a="" coastal="" or="" marine="" environment;="" the="" substance="" discharged="" or="" released="" must="" be="" contained="" in="" the="" chemical="" data="" base="" of="" the="" nrdam/cme;="" and="" estimates="" of="" the="" type="" and="" quantity="" of="" biological="" resource="" potentially="" injured="" should="" not="" differ="" significantly="" from="" the="" averages="" listed="" within="" the="" biological="" data="" base="" for="" the="" area="" in="" which="" the="" discharge="" or="" release="" occurred.="" whether="" certain="" of="" these="" conditions="" exist="" will="" necessarily="" be="" a="" subjective="" decision="" required="" by="" the="" authorized="" official="" in="" some="" incidents.="" the="" nrdam/cme,="" including="" its="" data="" bases,="" is="" based="" upon="" averaged="" values="" and="" may="" not="" necessarily="" reflect="" the="" actual="" events="" of="" any="" specific="" incident="" (52="" fr="" at="" 9048="" (march="" 20,="" 1987)).="" the="" factors="" discussed="" at="" 43="" cfr="" 11.33="" include="" the="" following="" requirements:="" the="" substance="" discharged="" or="" released="" is="" contained="" in="" the="" database="" of="" the="" model;="" the="" estimated="" quantity="" and="" species="" type="" of="" biological="" resources="" potentially="" injured="" are="" not="" expected="" to="" differ="" significantly="" from="" the="" average="" biomass="" listed="" in="" the="" database="" of="" the="" model,="" for="" the="" season,="" province,="" and="" bottom="" type="" in="" which="" the="" discharge="" or="" release="" occurred;="" the="" discharge="" or="" release="" was="" of="" a="" short="" duration;="" the="" discharge="" or="" release="" was="" minor;="" the="" discharge="" or="" release="" was="" a="" single="" event;="" the="" estimated="" injury="" to="" biological="" resources="" due="" to="" the="" discharge="" or="" release="" is="" expected="" to="" be="" primarily="" due="" to="" mortality="" of="" a="" species="" listed="" in="" data="" base="" of="" the="" model;="" the="" discharge="" or="" release="" resulted="" in="" the="" closure="" of="" a="" fishing="" area,="" a="" beach="" area,="" or="" a="" hunting="" area;="" the="" discharge="" or="" release="" occurring="" outside="" the="" coastal="" or="" marine="" environment="" resulted="" in="" the="" substance="" entering="" the="" coastal="" or="" marine="" environment;="" the="" use="" of="" chemical="" dispersants="" or="" other="" agents="" or="" management="" actions="" used="" in="" a="" cleanup="" of="" a="" discharge="" or="" release="" is="" not="" estimated="" to="" have="" caused="" significant="" injury="" to="" natural="" resources;="" the="" discharge="" or="" release="" occurred="" at="" or="" near="" the="" water="" surface="" of="" the="" coastal="" or="" marine="" environment="" or="" in="" the="" intertidal="" area;="" the="" discharge="" or="" release="" is="" not="" expected="" to="" cause="" a="" significant="" change="" in="" the="" price="" of="" species="" categories="" by="" season,="" province,="" or="" bottom="" type="" contained="" in="" the="" data="" base="" of="" the="" model;="" and="" the="" expected="" injury="" to="" the="" biological="" resource="" due="" to="" the="" discharge="" or="" release="" is="" not="" expected="" to="" have="" been="" primarily="" due="" to="" exposure="" through="" the="" air="" pathway="" (43="" cfr="" 11.33).="" expedited="" damage="" assessment:="" included="" in="" the="" range="" of="" proposed="" damage="" assessment="" procedures="" is="" the="" expedited="" damage="" assessment="" (eda).="" eda="" reflects="" a="" damage="" assessment="" approach="" that="" is="" intermediate="" between="" the="" current="" type="" a="" model="" and="" proposed="" comprehensive="" damage="" assessment="" (cda)="" procedures.="" this="" approach="" recognizes="" that="" the="" trustee(s)="" may="" want="" to="" address="" more="" effects="" than="" currently="" available="" in="" the="" type="" a="" model="" or="" the="" proposed="" compensation="" formula,="" particularly="" for="" inland="" discharges.="" the="" approach="" also="" recognizes="" that="" the="" size,="" location,="" and="" timing="" of="" a="" given="" discharge="" may="" not="" warrant="" the="" complex,="" prolonged="" procedures="" associated="" with="" a="" cda.="" the="" trustee(s)="" may="" determine="" that="" the="" use="" of="" an="" eda="" is="" appropriate="" after="" considering="" the="" factors="" discussed="" below.="" (1)="" the="" use="" of="" the="" compensation="" formulas="" or="" type="" a="" models="" alone="" would="" not="" sufficiently="" account="" for="" the="" injury="" and="" damages="" resulting="" from="" the="" discharge.="" this="" decision="" may="" be="" influenced="" by="" the="" following="" data:="" the="" volume="" of="" the="" discharge="" is="" not="" known="" or="" readily="" estimated;="" the="" discharge="" occurred="" over="" a="" period="" greater="" than="" a="" few="" days;="" injuries="" to="" unique="" habitats="" or="" species="" occurred="" and="" are="" readily="" quantified;="" a="" complex="" discharge="" trajectory="" that="" covers="" very="" large="" areas="" that="" are="" not="" readily="" modeled;="" the="" distribution="" and/or="" abundance="" of="" affected="" biota="" are="" known="" to="" differ="" significantly="" from="" seasonal="" averages="" (e.g.,="" usually="" large="" concentrations="" of="" wintering="" waterfowl="" were="" present="" and="" affected);="" the="" ecosystems="" affected="" are="" not="" addressed="" by="" the="" model="" (e.g.,="" rivers,="" small="" lakes);="" and="" there="" are="" known,="" readily="" determined="" injuries="" resulting="" from="" chronic="" discharges.="" the="" injury="" and="" damages="" resulting="" from="" the="" discharge="" may="" be="" adequately="" calculated="" using="" a="" combination="" of="" the="" type="" a="" model,="" and="" limited,="" focused="" injury="" determination/quantification="" and="" compensable="" values="" studies.="" for="" some="" discharges,="" the="" type="" a="" model="" may="" address="" most="" of="" the="" potential="" injuries="" and="" damages,="" with="" a="" few="" notable="" exceptions="" that="" can="" be="" readily="" determined="" from="" limited="" data="" collection="" efforts.="" the="" most="" cost-effective="" approach="" is="" the="" use="" of="" components="" of="" the="" type="" a="" model="" to="" calculate="" damages="" for="" those="" natural="" resources="" and/or="" services="" that="" are="" appropriate,="" and="" conduct="" the="" limited="" studies="" needed="" to="" address="" the="" remaining="" injuries="" to="" natural="" resources="" and/or="" services.="" for="" example,="" the="" type="" a="" model="" may="" be="" used="" to="" calculate="" damages="" to="" fisheries,="" assuming="" the="" conditions="" of="" the="" discharge="" generally="" meet="" the="" assumptions="" in="" the="" model.="" recreational="" losses="" from="" beach="" closures="" may="" be="" calculated="" separately="" based="" upon="" incident-specific,="" baseline="" data="" on="" user="" days,="" and="" surveys="" conducted="" after="" the="" discharge.="" (2)="" there="" is="" readily="" available="" information="" on="" the="" nature="" of="" the="" discharge="" and="" its="" effect="" on="" natural="" resources="" and/or="" services.="" to="" the="" extent="" practicable,="" the="" trustee(s)="" should="" rely="" on="" existing="" information="" regarding="" natural="" resources="" and/or="" services="" at="" risk="" when="" undertaking="" an="" eda.="" this="" is="" particularly="" true="" for="" information="" that="" helps="" establish="" a="" baseline="" for="" natural="" resources="" and/or="" services.="" such="" data="" enable="" the="" trustee(s)="" to:="" (a)="" establish="" background="" levels="" and="" types="" of="" hydrocarbons="" in="" key="" exposure="" pathways="" prior="" to="" the="" discharge;="" (b)="" characterize="" the="" physical="" and="" chemical="" parameters="" prior="" to="" the="" discharge;="" (c)="" characterize="" the="" status="" of="" the="" biological="" and="" habitat="" resources="" prior="" to="" the="" discharge;="" and="" (d)="" identify="" other="" information="" sources,="" such="" as="" population="" surveys="" or="" catch="" statistics="" that="" may="" be="" useful="" in="" quantifying="" injury="" and="" determining="" lost="" services.="" in="" addition="" to="" baseline="" data,="" other="" information="" useful="" for="" an="" eda="" includes="" literature="" that="" documents="" injuries="" to="" similar="" natural="" resources="" and="" identifies="" the="" level="" and="" flow="" of="" services="" provided="" by="" injured="" natural="" resources.="" sources="" of="" information="" include="" government,="" academia,="" and="" private="" organizations.="" existing="" federal="" monitoring="" programs="" that="" may="" provide="" the="" data="" for="" environmental="" parameters="" include="" noaa's="" national="" status="" and="" trends="" (ns&t),="" u.s.="" fish="" and="" wildlife's="" biological="" and="" environmental="" status="" and="" trends="" (best),="" u.s.="" geological="" survey's="" national="" water="" quality="" assessment="" program="" (nawqa),="" the="" u.s.="" epa's="" environmental="" monitoring="" and="" assessment="" program="" (emap),="" and="" fisheries="" of="" the="" united="" states="" (nmfs,="" noaa).="" abundant="" baseline="" information="" in="" each="" of="" the="" categories="" may="" not="" always="" be="" available="" to="" the="" trustee(s).="" failure="" to="" locate="" relevant="" information,="" however,="" does="" not="" preclude="" the="" trustee(s)="" from="" selecting="" an="" eda.="" an="" eda="" may="" still="" be="" appropriate="" provided="" that="" the="" trustee(s)="" can="" obtain="" the="" necessary="" data="" from="" limited="" focused="" studies.="" selection="" of="" an="" eda="" may="" depend="" on="" general="" categories="" and="" characteristics="" of="" oil.="" the="" physical="" and="" chemical="" properties="" of="" oil="" may="" help="" determine="" the="" exposure="" pathway,="" natural="" resources="" likely="" to="" be="" injured,="" and="" duration="" of="" that="" injury.="" the="" nature="" and="" extent="" of="" injury="" to="" natural="" resources,="" in="" turn,="" will="" depend="" on="" the="" type="" of="" petroleum="" hydrocarbons.="" many="" types="" of="" oil="" have="" been="" studied="" extensively="" and="" their="" particular="" characteristics="" and="" effects="" upon="" natural="" resources="" are="" often="" well="" established="" in="" scientific="" literature.="" discharges="" of="" such="" oil="" are="" most="" suitable="" for="" an="" eda.="" in="" circumstances="" where="" the="" trustee(s)="" determines="" that="" the="" characteristics="" and="" effects="" of="" the="" particular="" discharge="" are="" not="" well="" known="" or="" are="" uncertain,="" an="" eda="" may="" yet="" be="" appropriate="" provided="" that="" injury="" can="" be="" established="" by="" limited,="" focused="" studies.="" petroleum="" hydrocarbons="" can="" generally="" be="" organized="" into="" the="" categories="" of:="" (1)="" very="" light="" refined="" products="" (i.e.,="" gasoline="" and="" jet="" fuel),="" (2)="" light="" oil="" (i.e.,="" diesel,="" no.="" 2="" fuel="" oil,="" and="" certain="" light="" crudes),="" (3)="" medium="" crude="" oil,="" and="" (4)="" heavy="" oil="" (i.e.,="" no.="" 6="" fuel="" oil="" and="" bunker="" c).="" for="" each="" category,="" some="" generalizations="" can="" be="" made="" regarding="" the="" volatility,="" degree="" of="" persistence,="" and="" toxicity="" associated="" with="" oil.="" these="" characteristics="" should="" assist="" the="" trustee(s)="" in="" determining="" whether="" an="" eda="" is="" appropriate.="" see="" appendix="" c="" for="" a="" discussion="" regarding="" the="" attributes="" of="" each="" of="" the="" categories="" and="" the="" suitability="" of="" each="" category="" for="" an="" eda.="" size="" and="" location="" are="" other="" important="" factors="" to="" be="" considered="" in="" determining="" whether="" an="" eda="" is="" appropriate.="" accordingly,="" the="" proposed="" rule="" encourages="" the="" trustee(s)="" to="" take="" both="" size="" and="" location="" of="" the="" discharge="" into="" account="" when="" selecting="" the="" relevant="" damage="" assessment="" procedure.="" discharges="" smaller="" than="" 50,000="" gallons="" in="" open="" water="" generally="" either="" disperse,="" contaminate="" small="" areas,="" or="" have="" limited="" effects.="" compensation="" formulas="" or="" the="" type="" a="" model="" may="" adequately="" address="" damage="" assessment="" needs="" for="" these="" discharges.="" discharges="" larger="" than="" 1,000,000="" gallons="" may="" spread="" over="" large="" areas="" and="" lead="" to="" extensive="" contamination="" and="" effects="" to="" natural="" resources="" and/or="" services.="" accordingly,="" discharges="" greater="" than="" 1,000,000="" gallons="" may="" require="" a="" cda="" with="" greater="" emphasis="" on="" injury="" determination="" and="" quantification.="" the="" eda="" approach,="" therefore,="" may="" be="" most="" appropriate="" for="" most="" discharges="" between="" 50,000="" and="" 1,000,000="" gallons.="" these="" guidelines="" do="" not="" preclude="" the="" trustee(s)="" from="" conducting="" an="" eda="" for="" discharges="" below="" 50,000="" or="" above="" 1,000,000="" gallons.="" a="" discharge="" less="" than="" 50,000="" gallons="" that="" occurs="" in="" a="" unique="" or="" sensitive="" habitat,="" for="" example,="" may="" lead="" the="" trustee(s)="" to="" conclude="" that="" the="" type="" a="" model="" should="" be="" supplemented="" with="" limited,="" focused="" studies.="" likewise,="" injury="" determination="" and="" quantification="" for="" a="" discharge="" of="" 1,000,000="" gallons="" in="" open="" water="" may="" be="" adequately="" addressed="" by="" an="" eda.="" accordingly,="" the="" trustee(s)="" will="" have="" to="" assess="" the="" size="" of="" the="" discharge="" in="" the="" context="" of="" the="" location="" of="" the="" discharge="" and="" natural="" resources="" and/or="" services="" affected="" when="" selecting="" the="" appropriate="" damage="" assessment="" procedure.="" when="" discharges="" occur="" in="" unique="" or="" sensitive="" habitats,="" such="" as="" marshes,="" mangroves,="" or="" coral="" reefs,="" or="" where="" there="" are="" synergistic="" effects,="" the="" effects="" relative="" to="" the="" size="" of="" the="" discharge="" may="" be="" disproportionately="" large.="" under="" those="" circumstances,="" selection="" of="" an="" eda="" will="" be="" based="" upon="" the="" trustee's(s')="" determination="" that="" the="" procedure="" can="" accurately="" account="" for="" this="" injury.="" where="" there="" are="" studies="" documenting="" important="" aspects="" of="" a="" unique="" or="" sensitive="" habitat,="" for="" example,="" the="" existence="" of="" this="" data="" may="" be="" relevant="" in="" a="" trustee's(s')="" decision="" to="" select="" an="" expedited="" approach.="" occasionally,="" a="" single="" location="" may="" be="" plagued="" by="" consecutive="" discharges="" in="" a="" relatively="" short="" time="" frame.="" likewise,="" a="" discharge="" may="" occur="" in="" a="" chronically="" degraded="" location="" where="" multiple="" pollutants="" have="" been="" discharged="" over="" long="" periods="" of="" time.="" under="" either="" of="" these="" two="" scenarios,="" it="" may="" be="" difficult="" for="" the="" trustee(s)="" to="" differentiate="" effects="" resulting="" from="" each="" discharge="" with="" only="" minimal="" field="" data.="" designing="" and="" implementing="" a="" study="" to="" differentiate="" effects="" pursuant="" to="" the="" cda="" procedures,="" however,="" is="" likely="" to="" be="" very="" costly.="" accordingly,="" where="" the="" trustee(s)="" expects="" that="" the="" costs="" of="" a="" cda="" under="" such="" circumstances="" are="" likely="" to="" greatly="" exceed="" the="" estimated="" damages,="" the="" trustee(s)="" may="" wish="" to="" consider="" an="" eda.="" (3)="" the="" injury="" and="" damages="" resulting="" from="" the="" discharge="" can="" be="" adequately="" calculated="" by="" conducting="" limited,="" focused="" injury="" determination/quantification="" and="" compensable="" values="" studies.="" these="" studies="" are="" generally="" limited="" in="" two="" ways.="" first,="" the="" trustee(s)="" should="" be="" able="" to="" limit="" the="" types="" of="" natural="" resources="" for="" which="" injuries="" will="" be="" sought="" to="" those="" of="" recreational,="" commercial,="" or="" ecological="" importance="" as="" well="" as="" resources="" of="" special="" significance.="" second,="" the="" scope="" of="" injuries="" the="" trustee(s)="" will="" examine="" should="" be="" limited="" to="" mortality,="" sublethal="" effects="" that="" can="" be="" determined="" with="" limited="" and="" focused="" studies,="" and/or="" lost="" services.="" natural="" resources="" and/or="" services="" of="" commercial,="" recreational,="" or="" ecological="" importance,="" or="" resources="" of="" special="" significance="" are="" most="" appropriate="" for="" an="" eda="" because="" such="" resources="" are="" often="" being="" managed,="" conserved,="" or="" protected.="" accordingly,="" extensive="" data="" on="" life="" history,="" population,="" distribution,="" abundance,="" and="" economic="" values="" for="" services="" may="" already="" exist="" for="" these="" resources.="" further,="" concern="" regarding="" the="" effects="" of="" oil="" on="" these="" resources="" may="" have="" stimulated="" studies="" that="" document="" certain="" effects.="" extensive="" new="" data="" collection="" requirements="" to="" establish="" injury="" for="" these="" natural="" resources="" and/or="" services,="" therefore,="" may="" not="" be="" necessary.="" the="" scope="" of="" injuries="" addressed="" in="" an="" eda="" should="" be="" more="" limited="" than="" that="" of="" a="" cda.="" for="" an="" eda,="" the="" trustee(s)="" should="" focus="" primarily="" on="" mortality,="" sublethal="" effects="" that="" are="" considered="" significant="" and="" can="" be="" documented="" with="" limited,="" focused="" studies,="" and="" loss="" of="" services="" provided="" by="" natural="" resources.="" (4)="" potential="" restoration="" actions="" can="" be="" implemented="" without="" complex="" (i.e.,="" multiple="" habitats/biological="" resources),="" prolonged="" (i.e.,="" multi-year)="" injury="" determination/quantification="" and="" compensable="" values="" studies.="" one="" of="" the="" main="" objectives="" of="" an="" eda="" approach="" is="" to="" speed="" the="" damage="" assessment="" process="" so="" that="" restoration="" is="" initiated="" more="" quickly.="" thus,="" the="" restoration="" alternatives="" for="" the="" affected="" resources="" and/or="" services="" should="" be="" technically="" feasible,="" have="" a="" high="" probability="" of="" success,="" are="" cost-effective,="" and="" result="" in="" a="" net="" environmental="" benefit.="" in="" addition,="" the="" injury="" determination/="" quantification="" and="" compensable="" values="" studies="" should="" be="" cost-effective="" when="" compared="" to="" the="" likely="" level="" of="" damages.="" where,="" for="" example,="" the="" costs="" of="" a="" cda="" greatly="" exceed="" the="" expected="" damages,="" the="" trustee(s)="" should="" consider="" narrowing="" the="" scope="" of="" studies="" and="" using="" an="" eda.="" finally,="" restoration="" actions="" should="" be="" derived="" from="" the="" limited,="" focused="" injury="" studies.="" comprehensive="" damage="" assessment:="" comprehensive="" damage="" assessment="" (cda),="" by="" its="" nature,="" is="" complex,="" requiring="" extensive="" field="" and/or="" laboratory="" studies="" to="" document="" and="" quantify="" injury,="" plan="" a="" restoration="" approach,="" and="" estimate="" compensable="" values.="" such="" studies="" usually="" require="" scientifically="" valid="" study="" designs="" so="" that="" the="" resulting="" data="" and="" analyses="" meet="" the="" standards="" of="" litigation-quality="" products.="" the="" key="" factors="" for="" selection="" of="" cda="" are="" summarized="" below.="" (1)="" the="" injury="" and="" damages="" resulting="" from="" the="" discharge="" can="" best="" be="" determined="" through="" a="" complex,="" prolonged="" process,="" involving="" a="" broad="" scope="" of="" injury="" determination/quantification="" and="" compensable="" values="" studies.="" the="" discharge="" conditions="" that="" would="" not="" be="" sufficiently="" considered="" by="" any="" of="" the="" other="" damage="" assessment="" approaches="" include,="" but="" are="" not="" limited="" to:="" the="" extent="" of="" exposure="" and="" injury="" is="" large="" spatially="" and="" temporally="" (e.g.,="" affecting="" many="" habitats="" and="" species="" through="" multiple="" pathways="" that="" are="" pervasive="" and="" persistent);="" injury="" via="" chronic="" toxicity="" is="" likely="" to="" comprise="" a="" significant="" component;="" the="" discharge="" conditions="" are="" likely="" to="" result="" in="" significant="" bioaccumulation;="" community-="" and="" ecosystem-level="" effects="" are="" likely;="" and="" there="" are="" no="" standards="" or="" criteria="" with="" which="" to="" make="" comparison.="" injury="" at="" discharges="" where="" ecosystem-level="" effects="" may="" be="" significant="" can="" only="" be="" assessed="" from="" in-depth,="" incident-specific="" studies.="" further,="" when="" chronic="" exposure="" via="" contaminated="" sediments="" and="" food="" webs="" resulting="" in="" sublethal="" effects="" is="" believed="" a="" significant="" component="" of="" the="" injury,="" the="" only="" approach="" for="" determining="" and="" quantifying="" is="" through="" detailed="" studies.="" for="" these="" conditions,="" there="" are="" seldom="" sufficient="" baseline="" data="" or="" a="" basis="" for="" calculating="" damages.="" (2)="" information="" concerning="" the="" nature="" of="" the="" discharge="" and="" its="" effects="" on="" natural="" resources="" and/or="" services="" is="" not="" readily="" available.="" all="" of="" the="" other="" approaches="" only="" consider="" effects="" that="" are="" well-="" documented="" or="" readily="" determined.="" there="" are="" many="" conditions="" of="" a="" discharge="" that="" are="" not="" adequately="" studied="" in="" the="" past="" and="" would="" require="" detailed="" studies="" to="" determine="" natural="" resource="" and/or="" service="" injuries="" and="" damages,="" such="" as:="" discharges="" of="" an="" unusual="" oil="" type="" for="" which="" there="" were="" insufficient="" data="" on="" behavior,="" fate,="" and="" toxicity;="" when="" the="" exposure="" pathway="" is="" not="" clearly="" identifiable;="" significant="" effects="" are="" likely="" to="" occur="" to="" natural="" resources="" that="" were="" not="" previously="" studied,="" e.g.,="" there="" are="" little="" data="" on="" the="" effects="" of="" oil="" on="" terrestrial="" mammals,="" reptiles,="" or="" amphibians;="" and="" economic="" valuation="" techniques="" are="" not="" well-developed="" for="" the="" affected="" natural="" resources="" and/or="" services.="" (3)="" potential="" restoration="" actions="" cannot="" be="" determined="" or="" implemented="" without="" substantive="" injury="" determination/="" quantification="" and="" compensable="" values="" determination="" studies.="" where="" the="" distribution="" and="" abundance="" of="" injured="" natural="" resources="" and="" quality="" and="" quantity="" of="" services="" are="" poorly="" understood="" or="" considered="" unique,="" more="" complex="" and="" prolonged="" assessments="" may="" be="" needed="" as="" a="" basis="" for="" restoration.="" limited="" injury="" studies="" may="" be="" insufficient="" to="" determine="" the="" feasibility,="" effectiveness,="" success,="" and="" cost-benefit="" of="" various="" restoration="" alternatives="" in="" such="" cases.="" quantitative="" information="" on="" injury="" may="" be="" critical="" to="" recovery,="" monitoring="" (especially="" if="" more="" than="" one="" generation="" of="" a="" natural="" resources="" is="" injured),="" and="" potential="" restoration="" research="" (new="" approaches="" to="" restore="" natural="" resources="" and/="" or="" services="" not="" recovering="" or="" recovering="" at="" lower="" than="" expected="" rates).="" data="" collection="" and="" analysis="" purpose/scope:="" the="" proposed="" rule="" allows="" the="" trustee(s)="" to="" conduct="" limited="" data="" collection="" and="" analysis="" (data="" collection)="" throughout="" the="" preassessment="" phase.="" the="" purpose="" of="" data="" collection="" is="" to="" ensure="" that="" there="" is="" sufficient="" information="" to="" evaluate="" the="" risk="" to="" natural="" resources="" and/or="" services="" resulting="" from="" the="" discharge="" of="" oil.="" selection="" of="" protocols="" and="" quality="" assurance="" (qa)="" for="" data="" collection="" in="" preassessment="" should="" be="" based="" on="" the="" guidance="" provided="" in="" subpart="" c.="" only="" information="" that="" provides="" a="" connection="" to="" natural="" resources="" and/or="" services="" injury="" or="" is="" considered="" necessary="" to="" the="" assessment="" process,="" likely="" restoration="" alternatives="" to="" be="" implemented,="" and/or="" compensable="" values="" should="" be="" collected.="" where="" practicable,="" such="" information="" should="" be="" collected="" from="" other="" sources="" such="" as="" response="" agencies="" in="" order="" to="" avoid="" or,="" at="" least,="" minimize="" duplication="" of="" efforts.="" appropriate="" data="" collection="" in="" the="" preassessment="" phase="" include:="" (1)="" data="" necessary="" to="" make="" a="" determination="" to="" proceed="" with="" the="" preassessment="" phase;="" (2)="" ephemeral="" or="" perishable="" data="" that="" may="" be="" lost="" if="" not="" collected="" immediately;="" and="" (3)="" necessary="" data="" that="" serves="" as="" the="" basis="" for="" the="" selected="" damage="" assessment="" procedure,="" the="" absence="" of="" which="" data="" would="" prevent="" the="" trustee(s)="" from="" proceeding="" with="" damage="" assessment="" determination="" of="" sec.="" 990.23="" (i.e.,="" input="" into="" the="" compensation="" formulas="" or="" type="" a="" models,="" or="" the="" study="" design="" for="" the="" eda="" or="" cda).="" baseline="" and="" reference/control="" information:="" data="" collection="" encompass="" baseline="" and="" reference/control="" information.="" baseline="" information="" refers="" to="" on-site="" data="" of="" conditions="" prior="" to="" the="" discharge="" that="" are="" compared="" to="" incident-specific="" information="" of="" those="" same="" conditions="" subsequent="" to="" the="" discharge.="" reference="" and="" control="" information="" refers="" to="" off-site="" data="" of="" unaffected="" conditions="" that="" are="" compared="" to="" similar="" or="" the="" same="" on-site="" conditions="" affected="" by="" the="" discharge.="" case="" histories="" of="" previous="" discharge="" events="" or="" other="" relevant="" studies,="" although="" not="" considered="" as="" baseline="" or="" reference/="" control="" information,="" may="" also="" prove="" useful="" where="" conditions="" of="" the="" case="" or="" study="" are="" comparable="" in="" some="" manner="" to="" the="" actual="" discharge.="" when="" available,="" the="" trustee(s)="" should="" collect="" baseline="" data.="" baseline="" data="" is="" important="" because="" it="" provides="" a="" temporal="" comparison="" of="" conditions="" on="" natural="" and="" other="" (human-induced)="" variability.="" the="" value="" of="" baseline="" information="" depends="" on="" the:="" (1)="" corresponding="" quality="" of="" baseline="" and="" incident-specific="" data;="" (2)="" absence="" of="" intervening="" events="" such="" as="" ancillary="" contamination,="" storms,="" droughts,="" etc.;="" and="" (3)="" comparability="" of="" the="" study="" design="" between="" baseline="" and="" incident-="" specific="" activities.="" in="" many="" circumstances,="" though,="" the="" quality="" or="" quantity="" of="" baseline="" data="" may="" not="" be="" adequate="" or="" sufficient="" to="" determine="" the="" potential="" risk="" of="" injury="" to="" natural="" resources="" and/or="" services.="" when="" such="" baseline="" information="" is="" lacking,="" the="" trustee(s)="" may="" need="" to="" rely="" on="" historical="" data,="" if="" available,="" that="" may="" serve="" to="" identify="" preexisting="" trends.="" in="" contrast="" to="" baseline="" information,="" the="" value="" of="" reference="" or="" control="" data="" lies="" in="" the="" ability="" to="" make="" spatial="" comparisons.="" reference="" and="" control="" conditions="" should="" be="" selected="" based="" on="" their="" resemblance="" and="" proximity="" to="" the="" affected="" conditions="" of="" the="" discharge,="" and="" exclusion="" from="" potential="" impact="" from="" the="" discharge.="" however,="" such="" conditions="" may="" not="" always="" be="" available="" because="" of="" the="" nature="" or="" size="" of="" the="" discharge="" relative="" to="" natural="" resources="" and/or="" services="" affected,="" or="" the="" special="" status="" of="" specific="" natural="" resources="" and/or="" services="" (protected="" natural="" resources="" and/or="" services).="" in="" such="" cases,="" the="" trustee(s)="" may="" need="" to="" rely="" on="" other="" comparable="" measures,="" such="" as="" case="" histories="" or="" other="" relevant="" studies.="" the="" trustee(s)="" is="" encouraged="" to="" collect="" both="" baseline="" and="" reference/control="" information="" when="" practicable.="" together,="" such="" collection="" efforts="" provide="" the="" optimal="" means="" of="" determining="" potential="" risk="" and="" estimating="" damages="" to="" natural="" resources="" and/or="" services.="" emergency="" restoration="" section="" 990.25="" of="" the="" proposed="" rule="" provides="" authority="" for="" the="" trustee(s)="" to="" conduct="" emergency="" restoration="" to="" be="" taken="" by="" the="" trustee(s)="" under="" limited="" circumstances.="" emergency="" restoration="" is="" not="" considered="" to="" be="" an="" actual="" part="" of="" the="" preassessment="" phase,="" but="" is="" included="" in="" this="" discussion="" and="" the="" proposed="" rule="" since="" it="" will="" likely="" occur="" during="" the="" time="" frame="" of="" the="" preassessment="" phase.="" ideally,="" emergency="" restoration="" would="" be="" addressed="" through="" the="" response="" actions="" authorized="" by="" the="" osc.="" emergency="" restoration="" is="" intended="" for="" those="" limited="" situations="" where="" immediate="" action="" is="" required="" to="" avoid="" an="" irreversible="" loss="" or="" prevent="" or="" reduce="" any="" continuing="" danger="" to="" natural="" resources="" and/or="" services.="" emergency="" restoration="" may="" be="" taken="" following="" notification="" and="" during="" response="" with="" the="" approval="" of="" the="" osc="" such="" that="" it="" does="" not="" interfere="" with="" response="" actions.="" the="" proposed="" rule="" does="" not="" augment="" the="" existing="" authority="" of="" the="" trustee(s).="" for="" example,="" if="" the="" trustee(s)="" has="" independent="" authority="" to="" undertake="" emergency="" restoration,="" the="" trustee(s)="" should="" exercise="" that="" authority.="" this="" provision="" creates="" no="" additional="" authority="" to="" take="" actions="" on="" lands="" or="" waters="" the="" trustee(s)="" would="" not="" otherwise="" have="" authority="" to="" take.="" if="" practicable="" under="" the="" circumstances,="" the="" rp(s)="" should="" be="" invited="" to="" participate="" prior="" to="" the="" trustee(s)="" proceeding="" with="" emergency="" restoration.="" however,="" the="" trustee(s)="" cannot="" delay="" such="" restoration="" for="" any="" reason.="" the="" costs="" for="" conducting="" emergency="" restoration="" are="" recoverable="" as="" damages="" and="" are="" not="" considered="" response-related="" costs.="" as="" consistent="" with="" section="" 1012(j)(2)="" of="" opa,="" emergency="" restoration="" is="" an="" exception="" to="" the="" requirement="" that="" actions="" be="" subject="" to="" prior="" public="" review="" and="" comment.="" because="" of="" this="" exception,="" the="" proposed="" rule="" requires="" that="" the="" trustee(s)="" demonstrate="" that="" any="" emergency="" restoration="" taken="" under="" this="" authority="" are="" reasonable="" and="" necessary,="" and="" conducted="" in="" a="" cost-effective="" manner="" as="" defined="" in="" the="" proposed="" rule.="" any="" costs="" associated="" with="" emergency="" restoration="" may="" be="" claimed="" as="" part="" of="" the="" damage="" claim="" or="" as="" uncompensated="" claims="" under="" section="" 1012(a)(4)="" of="" opa.="" the="" appropriateness="" of="" such="" claims="" against="" the="" fund="" is="" currently="" under="" consideration.="" response="" to="" comments="" comment:="" several="" commenters="" discussed="" the="" concept="" that="" the="" trustee(s)="" must="" meet="" certain="" criteria="" in="" the="" preassessment="" phase="" before="" proceeding="" with="" additional="" assessment="" actions.="" those="" criteria="" mentioned="" were:="" (1)="" a="" discharge="" of="" oil="" has="" occurred;="" (2)="" natural="" resources="" for="" which="" the="" trustee(s)="" may="" assert="" trusteeship="" have="" been="" or="" are="" likely="" to="" have="" been="" injured="" by="" the="" discharge="" of="" oil;="" (3)="" the="" quantity="" and="" concentration="" of="" the="" discharged="" oil="" are="" sufficient="" to="" potentially="" cause="" injury="" to="" those="" natural="" resources;="" (4)="" data="" sufficient="" to="" pursue="" an="" assessment="" are="" readily="" available="" or="" likely="" to="" be="" obtained="" at="" reasonable="" cost;="" and="" (5)="" response="" actions="" carried="" out="" or="" planned="" do="" not="" or="" will="" not="" sufficiently="" remedy="" the="" injury="" to="" natural="" resources="" or="" the="" public="" has="" not="" been="" adequately="" compensated="" for="" a="" loss="" of="" natural="" resource="" services.="" many="" commenters="" strongly="" supported="" the="" notion="" that="" the="" proposed="" rule="" should="" require="" that="" all="" five="" criteria="" be="" met.="" one="" commenter="" indicated="" that="" the="" fifth="" criterion="" should="" be="" eliminated,="" since="" it="" is="" premature,="" unduly="" vague="" and="" subjective="" and="" duplicates="" the="" first="" four="" criteria.="" some="" commenters="" were="" concerned="" that="" the="" meeting="" of="" all="" five="" criteria="" was="" unnecessary="" and="" contrary="" to="" opa.="" in="" addition,="" the="" fourth="" criterion="" is="" unwarranted="" since="" lack="" of="" data="" or="" its="" cost="" is="" irrelevant="" to="" the="" extent="" of="" injury="" and="" should="" not="" prevent="" the="" assessment="" from="" proceeding.="" some="" commenters="" stated="" that="" only="" significant="" and="" compensable="" injuries="" to="" natural="" resources="" must="" exist="" before="" proceeding="" with="" additional="" assessment="" procedures.="" one="" commenter="" was="" concerned="" that="" noaa="" would="" allow="" the="" trustee(s)="" to="" continue="" assessments="" ``if="" the="" public="" has="" not="" been="" adequately="" compensated="" for="" a="" significant="" loss="" of="" natural="" resource="" services.''="" this="" language="" was="" thought="" to="" be="" vague="" and="" subjective.="" response:="" noaa="" is="" proposing="" a="" two-step="" preassessment="" phase="" to="" determine:="" (1)="" if="" preassessment="" is="" should="" continue,="" and="" (2)="" with="" which="" assessment="" procedure="" to="" proceed,="" if="" any.="" while="" no="" longer="" identified="" as="" five="" separate="" criteria,="" the="" trustee(s)="" will="" have="" to="" determine="" that="" it="" is="" legally,="" scientifically,="" and="" economically="" justified="" to="" proceed="" with="" some="" form="" of="" damage="" assessment.="" in="" the="" first="" step,="" the="" trustee(s)="" will="" likely="" rely="" upon="" readily="" available="" data.="" in="" order="" to="" proceed="" with="" a="" preassessment,="" the="" trustee(s)="" must="" determine="" that:="" (1)="" the="" discharge="" does="" not="" qualify="" for="" an="" exclusion="" under="" section="" 1002(c)="" of="" opa;="" (2)="" natural="" resources="" and/or="" services="" under="" trusteeship="" may="" be="" adversely="" affected="" by="" the="" discharge;="" and="" (3)="" there="" is="" a="" reasonable="" probability="" that="" the="" trustee(s)="" can="" make="" a="" successful="" damage="" assessment="" claim="" based="" on="" the="" scientific,="" economic,="" and="" legal="" merits="" of="" the="" case="" (i.e.,="" potential="" for="" injury="" resulting="" from="" the="" discharge="" of="" oil="" and="" successful="" and="" meaningful="" restoration="" and/or="" compensation).="" if="" these="" conditions="" are="" not="" met,="" the="" trustee(s)="" must="" discontinue="" any="" further="" preassessment="" activities.="" once="" the="" trustee(s)="" has="" met="" these="" conditions,="" additional="" data="" collection="" and="" analysis="" may="" be="" conducted="" to="" determine="" the="" most="" appropriate="" damage="" assessment="" procedure.="" the="" previous="" five="" criteria="" are="" incorporated="" in="" this="" proposed="" rule="" at="" different="" steps,="" and="" should="" still="" be="" addressed="" by="" the="" trustee(s)="" during="" the="" preassessment="" phase.="" the="" first="" two="" criteria="" are="" two="" of="" the="" conditions="" for="" the="" preassessment="" determination="" of="" sec.="" 990.21(c).="" the="" essence="" of="" the="" other="" three="" ``criteria''="" would="" be="" considered="" during="" the="" damage="" assessment="" determination="" of="" sec.="" 990.22.="" comment:="" most="" commenters="" indicated="" that="" the="" trustee(s)="" should="" initiate="" the="" preassessment="" phase="" as="" soon="" as="" possible="" following="" a="" discharge.="" some="" commenters="" thought="" that="" the="" preassessment="" phase="" should="" be="" merely="" a="" desktop="" determination="" of="" whether="" to="" proceed="" with="" additional="" assessment="" activities.="" these="" commenters="" were="" concerned="" that="" noaa's="" initial="" proposal="" would="" require="" the="" trustee(s)="" to="" engage="" in="" more="" than="" a="" desktop="" review.="" if="" so,="" one="" commenter="" suggested="" that="" time="" limits="" should="" be="" placed="" upon="" the="" trustee(s),="" to="" ensure="" timely="" decisions="" regarding="" assessments.="" other="" commenters="" indicated="" that="" any="" preassessment="" process="" must="" allow="" flexibility="" to="" the="" trustee(s)="" to="" gather="" sufficient="" data="" in="" order="" to="" proceed="" with="" and="" decide="" upon="" damage="" assessment.="" some="" data="" may="" not="" be="" available="" immediately="" following="" the="" discharge,="" but="" will="" have="" to="" be="" collected="" later="" in="" the="" process="" in="" order="" to="" make="" such="" decisions.="" response:="" noaa="" agrees="" that="" preassessment="" should="" begin="" as="" soon="" as="" possible="" after="" the="" discharge="" occurs.="" however,="" the="" proposed="" rule,="" as="" stipulated="" in="" the="" above="" response,="" provides="" for="" more="" than="" a="" desktop="" review.="" the="" preassessment="" phase="" provides="" a="" mechanism="" for="" initiating="" a="" damage="" assessment.="" the="" preassessment="" phase="" is="" not="" intended="" to="" be="" extensive,="" expensive,="" or="" time-consuming.="" the="" preassessment="" phase="" may="" indicate="" that="" the="" use="" of="" the="" compensation="" formula,="" type="" a="" model,="" expedited="" damage="" assessment,="" or="" comprehensive="" damage="" assessment="" will="" appropriately="" address="" injuries="" to="" natural="" resources="" and/or="" services.="" for="" some="" discharges,="" the="" trustee(s)="" might="" also="" determine="" that="" no="" further="" damage="" assessment="" actions="" are="" necessary.="" this="" preassessment="" process="" also="" allows="" the="" trustee(s)="" to="" collect="" ephemeral="" or="" perishable="" data="" that="" may="" be="" lost="" if="" not="" collected="" immediately,="" data="" that="" are="" necessary="" to="" make="" a="" determination="" required="" in="" the="" preassessment="" phase,="" and="" data="" necessary="" for="" any="" of="" the="" damage="" assessment="" procedures.="" the="" extent="" of="" data="" collection="" is="" left="" to="" the="" discretion="" of="" the="" trustee(s).="" since="" the="" circumstances="" surrounding="" any="" discharge="" will="" vary,="" only="" general="" time="" frames="" can="" be="" suggested="" for="" completing="" the="" preassessment="" phase.="" comment:="" some="" commenters="" indicated="" that,="" where="" the="" rp(s)="" is="" adequately="" remedying="" injuries="" to="" natural="" resources,="" considerable="" effort="" and="" expense="" of="" conducting="" any="" part="" of="" an="" assessment="" are="" unnecessary.="" another="" commenter="" noted="" that="" small="" offshore="" discharges="" that="" pose="" no="" threat="" to="" natural="" resources="" do="" not="" justify="" the="" trustee(s)="" conducting="" a="" preassessment.="" response:="" noaa="" disagrees="" with="" the="" general="" thrust="" of="" these="" comments.="" while="" many="" discharges="" will="" not="" require="" a="" comprehensive="" damage="" assessment="" in="" order="" to="" fulfill="" the="" mandate="" under="" opa,="" the="" trustee(s)="" must="" make="" some="" type="" of="" determination="" shortly="" following="" a="" discharge="" of="" what="" type="" of="" damage="" assessment="" should="" be="" completed,="" if="" any.="" further,="" even="" if="" the="" rp(s)="" responds="" adequately="" to="" the="" discharge,="" the="" lost="" use="" value="" pending="" restoration="" is="" still="" recoverable.="" comment:="" many="" commenters="" suggested="" developing="" a="" plan="" that="" allows="" the="" trustee(s)="" to="" make="" decisions="" based="" on="" data="" collection="" efforts.="" such="" a="" framework="" should="" address="" the="" nature="" and="" extent="" of="" injuries="" to="" natural="" resources="" and/or="" services.="" another="" commenter="" was="" concerned="" that="" preassessment="" should="" not="" be="" distinct="" from="" data="" collection="" and="" early="" sampling.="" response:="" noaa="" considers="" identification="" and="" extent="" of="" injuries="" to="" natural="" resources="" and/or="" services="" as="" essential="" and="" is="" incorporating="" those="" factors="" into="" the="" preassessment="" phase.="" in="" the="" preassessment="" phase,="" the="" trustee(s)="" will="" consider="" the:="" nature="" of="" the="" discharge="" and="" environmental="" setting;="" potential="" for="" exposure,="" injury,="" and="" risk;="" extent="" of="" injury;="" and="" estimated="" damages.="" such="" a="" framework="" will="" aid="" the="" trustee(s)="" to="" select="" the="" most="" appropriate="" damage="" assessment="" approach,="" if="" any.="" data="" collection="" and="" analysis="" may="" be="" conducted="" throughout="" the="" preassessment="" phase.="" comment:="" one="" commenter="" indicated="" the="" importance="" of="" realizing="" that="" the="" quantity="" of="" oil="" estimated="" during="" the="" preassessment="" is="" only="" an="" estimate="" and="" is="" certainly="" subject="" to="" change.="" response:="" oil="" quantity="" and="" other="" estimates="" made="" during="" the="" preassessment="" are="" preliminary="" and="" subject="" to="" change="" as="" additional="" information="" is="" collected="" by="" the="" trustee(s).="" comment:="" most="" commenters="" indicated="" that="" both="" data="" collection="" and="" early="" sampling="" activities="" are="" helpful="" in="" defining="" the="" need="" for="" potential="" damage="" assessment="" and="" restoration="" and="" were="" supportive="" of="" such="" efforts="" so="" long="" as="" they="" were="" relevant="" to="" existing="" or="" anticipated="" injury="" to="" natural="" resources="" and/or="" services.="" a="" few="" commenters="" questioned="" the="" utility="" of="" baseline="" data="" collection,="" and="" others="" questioned="" the="" usefulness="" of="" early="" sampling="" efforts="" as="" originally="" outlined="" in="" the="" anprm.="" another="" commenter="" indicated="" that="" baseline="" data="" collection="" might="" be="" redundant="" to="" other="" ongoing="" efforts.="" one="" commenter="" suggested="" that="" all="" compiled="" information="" be="" put="" in="" a="" form="" that="" would="" also="" prove="" useful="" in="" future="" prespill="" planning.="" some="" commenters="" offered="" examples="" of="" the="" type="" and="" sources="" of="" information="" that="" should="" be="" used.="" response:="" noaa="" agrees="" that="" only="" information="" on="" natural="" resources="" and/or="" services="" (current="" or="" planned)="" that="" the="" trustee(s)="" considers="" relevant="" should="" be="" collected.="" the="" information="" should="" provide="" a="" connection="" to="" the="" damage="" assessment="" process="" and="" likely="" restoration="" actions.="" baseline="" collection="" efforts="" could="" provide="" a="" basis="" for="" information="" needed="" during="" the="" preassessment="" phase.="" baseline="" data="" collection="" should="" not="" be="" redundant,="" but="" should="" be="" coordinated="" with="" other="" data="" collection="" efforts.="" noaa="" agrees="" that="" the="" information="" collected="" could="" be="" useful="" in="" future="" prespill="" planning="" activities="" and="" is="" recommending="" such="" integration.="" noaa="" is="" also="" providing="" information="" on="" the="" types="" and="" sources="" of="" information="" that="" might="" be="" required="" in="" the="" preassessment="" phase="" in="" the="" proposed="" rule="" and="" the="" preassessment="" phase="" guidance="" document.="" comment:="" several="" commenters="" stressed="" the="" importance="" of="" baseline="" data="" and="" reference="" areas="" over="" background="" data.="" if="" these="" areas="" are="" properly="" selected,="" then="" such="" data="" may="" provide="" the="" best="" type="" of="" information="" to="" estimate="" injury="" than="" are="" baseline="" and="" historical="" comparisons.="" both="" baseline="" and="" reference="" information="" serve="" as="" the="" basis="" for="" damage="" assessment="" and="" restoration.="" response:="" noaa="" agrees="" with="" these="" comments="" and="" has="" incorporated="" this="" notion="" in="" the="" proposed="" rule.="" comment:="" at="" least="" one="" commenter="" stressed="" that="" preassessment="" activities="" must="" be="" consistent="" with="" the="" ncp="" or="" other="" response="" plans="" developed="" under="" opa.="" response:="" noaa="" agrees.="" the="" preassessment="" phase="" stresses="" coordination="" and="" following="" all="" applicable="" plans="" (i.e.,="" area="" contingency="" plans,="" etc.)="" in="" order="" to="" ensure="" consistency="" and="" efficiency.="" comment:="" some="" commenters="" encouraged="" the="" early="" participation="" of="" the="" rp(s)="" in="" the="" preassessment="" and="" assessment="" process.="" early="" cooperation="" could="" set="" the="" tone="" for="" a="" productive="" joint="" assessment="" and="" allow="" the="" trustee(s)="" and="" rp(s)="" to="" settle="" major="" issues,="" including="" the="" scope="" of="" the="" damage="" assessment="" and="" funding.="" the="" lack="" of="" early="" participation="" and="" cooperation="" could="" result="" in="" parallel="" assessments.="" others="" were="" concerned="" that="" early="" participation="" by="" the="" rp(s)="" might="" encourage="" the="" trustee(s)="" to="" delay="" the="" process="" while="" negotiating="" with="" the="" rp(s).="" in="" addition,="" the="" rp(s)="" could="" influence="" the="" trustee(s)="" to="" lessen="" the="" scope="" of="" the="" preassessment="" and="" eventual="" assessment.="" other="" commenters="" indicated="" that="" it="" should="" be="" the="" option="" of="" the="" rp(s)="" whether="" to="" participate="" in="" preassessment,="" and="" the="" rp(s)="" should="" not="" be="" forced="" to="" do="" so.="" to="" encourage="" participation="" early="" in="" the="" damage="" assessment="" process,="" one="" commenter="" suggested="" that="" the="" rp(s)="" have="" an="" active="" role,="" if="" desired,="" in="" the="" development="" and="" implementation="" of="" data="" collection="" and="" early="" sampling="" activities,="" and="" that="" the="" information="" and="" cost="" be="" shared="" on="" a="" mutually="" acceptable="" basis.="" another="" commenter="" suggested="" that="" the="" trustee(s)="" should="" take="" the="" lead="" role="" with="" the="" rp(s)="" having="" the="" opportunity="" to="" review="" and="" comment="" on="" proposed="" activities.="" response:="" to="" the="" extent="" practicable,="" noaa="" encourages="" the="" trustee(s)="" to="" invite="" cooperative="" rp(s)="" participation="" early="" in="" the="" damage="" assessment="" process.="" such="" an="" invitation="" is="" in="" line="" with="" noaa's="" goal="" of="" fostering="" cooperation="" and="" early="" resolution="" rather="" than="" litigation.="" the="" trustee(s)="" will="" maintain="" oversight="" over="" all="" activities="" so="" that="" the="" quality="" and="" integrity="" of="" information="" are="" ensured.="" noaa="" is="" also="" recommending="" that,="" when="" appropriate,="" all="" data="" collection="" and="" analysis="" be="" coordinated="" with="" the="" rp(s)="" so="" that="" there="" is="" no="" duplication="" of="" effort.="" the="" rp(s)="" can="" provide="" immediate="" financial="" and="" technical="" support="" to="" the="" preassessment="" process="" that="" might="" be="" unavailable="" to="" the="" trustee(s).="" however,="" opa="" provides="" that="" the="" overall="" responsibility="" for="" any="" part="" of="" the="" assessment="" resides="" with="" the="" trustee(s).="" it="" will="" be="" up="" to="" the="" trustee(s)="" in="" each="" preassessment="" to="" determine="" the="" appropriate="" involvement="" of="" the="" rp(s).="" where="" the="" rp(s)="" is="" known,="" the="" trustee(s)="" may="" contact="" the="" rp(s)="" and="" invite="" the="" rp(s)="" to="" participate="" in="" the="" preassessment.="" however,="" the="" trustee(s)="" cannot="" significantly="" delay="" the="" onset="" of="" the="" preassessment="" while="" waiting="" for="" a="" response="" from="" the="" rp(s).="" the="" proposed="" rule="" does="" not="" require="" participation="" of="" the="" rp(s).="" thus,="" the="" rp(s)="" may="" always="" opt="" not="" to="" participate.="" comment:="" one="" commenter="" argued="" the="" rp(s)="" must="" be="" allowed="" to="" conduct="" a="" full="" scientific="" assessment="" to="" determine="" actual="" damages,="" regardless="" of="" the="" assessment="" procedure="" chosen="" by="" the="" trustee(s).="" another="" commented="" that="" the="" rp(s)="" must="" be="" in="" agreement="" with="" the="" selection="" of="" modeling="" to="" assess="" damage.="" response:="" section="" 990.23="" of="" the="" proposed="" rule="" allows="" the="" rp(s)="" to="" request="" a="" more="" comprehensive="" damage="" assessment="" than="" the="" trustee(s)="" selection="" if="" the="" rp(s)="" is="" willing="" to="" bear="" the="" additional="" costs="" at="" the="" outset="" of="" the="" more="" comprehensive="" assessment.="" the="" rp(s)="" is="" also="" free="" to="" fund="" a="" separate="" assessment.="" comment:="" another="" commenter="" argued="" that="" the="" rp(s)="" should="" not="" be="" allowed="" to="" conduct="" a="" different="" type="" of="" assessment="" to="" be="" presented="" in="" court="" when="" they="" are="" dissatisfied="" with="" the="" trustee's="" damage="" assessment="" selection.="" if="" the="" rp(s)="" does="" disagree="" with="" the="" selection,="" he="" should="" be="" required="" to="" submit="" a="" contrary="" position="" early="" in="" the="" administrative="" process="" in="" an="" attempt="" to="" persuade="" the="" trustee="" to="" reconsider.="" the="" trustee's="" selection="" should="" be="" reviewed="" on="" the="" administrative="" record.="" another="" commented="" that="" the="" rp(s)="" should="" not="" be="" allowed="" to="" challenge="" simplified="" methods="" of="" assessment="" based="" on="" the="" fact="" that="" more="" accurate="" data="" exist,="" since="" protracted="" litigation="" would="" defeat="" their="" very="" purpose.="" response:="" as="" mentioned="" above,="" the="" proposed="" rule="" does="" allow="" the="" rp(s)="" to="" request="" and="" fund="" a="" more="" comprehensive="" damage="" assessment.="" noaa="" agrees="" that="" the="" trustee(s)="" should="" be="" notified="" of="" the="" rp's(s')="" request="" early="" in="" the="" process="" and="" provides="" for="" that="" early="" notification.="" in="" addition,="" the="" trustee(s)="" decisions="" must="" be="" documented="" in="" the="" administrative="" record,="" including="" the="" choice="" of="" an="" assessment="" procedure.="" noaa's="" proposed="" rule="" establishes="" that="" a="" reviewing="" court="" will="" be="" limited="" to="" the="" administrative="" record.="" comment:="" at="" least="" one="" commenter="" indicated="" that="" public="" participation="" in="" the="" preassessment="" is="" vital="" and="" that="" preassessment="" decisions="" should="" be="" available="" for="" public="" review.="" response:="" since="" discharges="" of="" oil="" are="" dynamic="" and="" rapid="" events,="" the="" early="" activities="" of="" the="" trustee(s)="" will="" necessarily="" be="" conducted="" without="" concurrent="" public="" review="" and="" comment.="" as="" indicated="" in="" the="" prespill="" planning="" of="" the="" proposed="" rule,="" the="" trustee(s)="" is="" encouraged="" to="" involve="" the="" public="" in="" the="" formation="" of="" plans="" of="" what="" to="" do="" in="" case="" of="" a="" discharge.="" in="" addition,="" sec.="" 990.20(e)="" of="" the="" proposed="" rule="" requires="" that="" the="" trustee(s)="" prepare="" a="" preassessment="" report,="" which="" will="" be="" available="" for="" public="" review="" as="" part="" of="" the="" assessment="" record.="" comment:="" one="" commenter="" indicated="" the="" requirement="" in="" 43="" cfr="" 11.23(b),="" which="" calls="" for="" a="" ``reasonable="" probability="" of="" making="" a="" successful="" claim,''="" is="" noticeably="" lacking="" from="" the="" proposal="" in="" the="" anprm="" of="" march="" 13,="" 1992.="" response:="" noaa="" agrees.="" this="" proposed="" rule="" provides="" language="" based="" on="" the="" potential="" for="" injury="" resulting="" from="" the="" discharge="" of="" oil.="" the="" trustee(s)="" should="" first="" seek="" to="" recover="" damages="" from="" the="" rp(s).="" if="" the="" rp(s)="" is="" insolvent="" or="" unreachable="" under="" opa,="" noaa's="" position="" is="" that="" such="" claims="" may="" then="" be="" pursued="" from="" the="" oil="" spill="" liability="" trust="" fund="" under="" section="" 1012(a)(4)="" of="" opa.="" comment:="" another="" commenter="" suggested="" that="" ``reasonable="" cost''="" be="" more="" clearly="" defined.="" response:="" noaa="" has="" revised="" the="" definition="" of="" reasonable="" cost.="" all="" costs="" of="" conducting="" the="" overall="" assessment="" in="" accordance="" with="" this="" proposed="" rule="" are="" reasonable.="" although="" no="" longer="" included="" in="" the="" definition="" of="" reasonable="" cost,="" the="" trustee(s)="" should="" be="" cautious="" about="" proceeding="" with="" assessments="" in="" which="" the="" anticipated="" costs="" of="" conducting="" the="" total="" assessment="" (not="" individual="" studies)="" are="" more="" than="" the="" anticipated="" damages.="" comment:="" one="" commenter="" suggested="" that="" a="" rp="" who="" responds="" quickly="" to="" the="" discharge="" and="" is="" cooperative="" should="" be="" awarded="" good="" faith="" points="" and="" reduced="" assessment="" costs.="" response:="" the="" rp(s)="" that="" has="" adequately="" responded="" to="" the="" discharge="" may,="" in="" effect,="" have="" reduced="" the="" damages="" for="" injuries="" to="" natural="" resources="" since="" rapid="" containment="" and="" cleanup="" would="" likely="" reduce="" the="" effect="" of="" the="" oil="" in="" the="" environment.="" however,="" opa="" does="" not="" provide="" the="" trustee(s)="" the="" authority="" to="" reduce="" damage="" claims="" for="" any="" rp(s)="" on="" this="" basis.="" it="" is="" expected="" that="" the="" overall="" costs="" of="" conducting="" assessments="" will="" be="" lower="" to="" the="" rp(s)="" when="" the="" rp(s)="" is="" cooperative,="" since="" both="" the="" rp(s)="" and="" trustee(s)="" will="" not="" be="" conducting="" separate="" assessments.="" comment:="" several="" commenters="" suggested="" that="" funding="" be="" available="" to="" the="" trustee(s)="" to="" conduct="" data="" collection="" and="" early="" sampling="" and="" that="" funding="" not="" be="" subject="" to="" a="" lengthy="" approval="" process.="" in="" addition,="" some="" commenters="" suggested="" that="" noaa="" establish="" a="" fund="" through="" the="" proposed="" rule="" that="" would="" provide="" funds="" for="" emergency="" response/restoration="" actions.="" response:="" opa="" does="" not="" authorize="" noaa="" to="" establish="" such="" a="" fund="" for="" either="" purpose.="" it="" is="" noaa's="" position="" that="" uncompensated="" costs="" of="" emergency="" restoration="" actions="" authorized="" under="" sec.="" 990.25="" may="" be="" pursued="" as="" uncompensated="" claims="" under="" section="" 1012(a)(4).="" comment:="" a="" commenter="" argued="" for="" allowing="" the="" use="" of="" increased="" costs="" required="" to="" protect="" natural="" resources="" at="" risk="" from="" a="" discharge="" to="" be="" recoverable,="" if="" these="" costs="" are="" not="" covered="" by="" private="" claimants.="" the="" commenter="" concluded="" that,="" often="" such="" increased="" costs="" are="" a="" reasonable="" estimate="" of="" the="" value="" of="" natural="" resources="" at="" risk.="" response:="" the="" proposed="" rule="" allows="" recovery="" of="" such="" increased="" costs.="" however,="" it="" would="" not="" be="" correct="" to="" suggest="" that="" such="" additional="" costs="" are,="" in="" any="" way,="" a="" measure="" of="" the="" true="" value="" society="" places="" on="" natural="" resources="" at="" risk.="" for="" example,="" if="" a="" discharge="" of="" oil="" were="" to="" occur="" in="" an="" area="" adjacent="" to="" a="" breeding="" and="" rearing="" habitat="" for="" an="" endangered="" or="" threatened="" species,="" the="" cost="" of="" preventing="" the="" oil="" from="" fouling="" that="" habitat,="" and="" thus="" injuring="" the="" resident="" population="" of="" animals,="" would="" have="" no="" obvious="" or="" direct="" relationship="" to="" the="" ``value''="" society="" places="" on="" those="" endangered="" or="" threatened="" species.="" comment:="" several="" commenters="" cautioned="" against="" noaa="" requiring="" the="" trustee(s)="" to="" estimate="" costs="" of="" assessment="" and="" restoration="" activities.="" many="" indicated="" that="" this="" practice="" would="" lead="" to="" a="" strict="" cost/benefit="" analysis="" and="" such="" estimates="" are="" preliminary="" and="" may="" be="" substantially="" revised="" as="" new="" information="" is="" collected.="" others="" indicated="" that="" such="" estimates="" are="" not="" needed="" in="" the="" preassessment="" phase.="" response:="" since="" the="" costs="" of="" conducting="" an="" assessment="" and="" restoration="" are="" a="" part="" of="" the="" measure="" of="" damages="" under="" opa,="" noaa="" feels="" that="" preliminary="" estimates="" of="" both="" are="" necessary="" for="" determining="" cost="" effectiveness="" and="" for="" planning="" purposes.="" however,="" such="" estimates="" at="" this="" stage="" are="" merely="" preliminary="" and="" are="" to="" be="" used="" in="" determining="" whether="" to="" proceed="" with="" further="" assessment="" procedures.="" estimates="" are="" subject="" to="" change="" as="" more="" information="" is="" collected.="" the="" trustee(s)="" is="" cautioned="" against="" using="" these="" preliminary="" figures="" for="" other="" purposes="" since="" they="" are="" subject="" to="" change.="" a="" strict="" cost/benefit="" analysis="" is="" not="" required="" by="" opa="" or="" this="" proposed="" rule.="" comment:="" at="" least="" one="" commenter="" indicated="" that="" the="" regulations="" should="" identify="" the="" recoverable="" costs="" and="" require="" the="" trustee(s)="" to="" document="" such="" costs.="" response:="" noaa="" agrees,="" and="" sec.="" 990.20(e)="" of="" the="" proposed="" rule="" identifies="" examples="" of="" preassessment="" costs="" and="" requires="" adequate="" documentation.="" comment:="" several="" commenters="" indicated="" the="" usefulness="" of="" emergency="" restoration="" activities="" in="" reducing="" injury="" and="" future="" restoration="" costs.="" others="" recommended="" limited="" public="" review="" of="" such="" actions="" due="" to="" the="" emergency="" situation,="" yet="" noted="" efforts="" should="" be="" made="" to="" keep="" the="" public="" informed="" of="" such="" activities.="" response:="" noaa="" agrees="" and="" provides="" for="" emergency="" restoration="" in="" sec.="" 990.25="" of="" the="" proposed="" rule.="" since="" these="" actions="" would="" only="" be="" taken="" in="" emergency="" situations,="" full="" public="" review="" and="" comment="" would="" be="" impossible.="" however,="" to="" the="" extent="" practicable,="" the="" trustee(s)="" should="" keep="" the="" public="" informed="" of="" such="" actions.="" of="" course,="" such="" actions="" will="" be="" a="" part="" of="" the="" preassessment="" report="" and="" eventually="" part="" of="" the="" report="" of="" assessment.="" as="" part="" of="" prespill="" planning,="" generic="" restoration/="" protective="" plans="" could="" be="" developed="" with="" public="" review.="" comment:="" one="" commenter="" requested="" that="" the="" rule="" should="" not="" limit="" emergency="" restoration="" to="" situations="" involving="" endangered="" or="" threatened="" species="" and="" their="" habitats.="" response:="" noaa="" agrees,="" and="" no="" such="" limitation="" is="" proposed="" in="" sec.="" 990.25.="" comment:="" some="" commenters="" raised="" concern="" over="" a="" trustee(s)="" conducting="" emergency="" restoration="" without="" coordinating="" with="" the="" response="" agency.="" others="" indicated="" that="" such="" actions="" should="" be="" part="" of="" the="" established="" response="" mechanism.="" response:="" noaa="" agrees="" with="" this="" concern.="" in="" the="" proposed="" rule,="" the="" trustee(s)="" is="" to="" take="" emergency="" restoration="" only="" after="" notification="" and/or="" consultation="" with="" the="" response="" agency="" and="" the="" trustee's(s')="" determination="" that="" current="" or="" anticipated="" response="" actions="" are="" insufficient.="" the="" response="" agency(ies)="" and="" where="" identified,="" the="" rp(s),="" should="" be="" given="" an="" opportunity="" to="" address="" the="" emergency="" situation="" before="" the="" trustee(s)="" takes="" such="" actions.="" in="" addition,="" noaa="" recognizes="" that="" the="" possibility="" of="" needing="" to="" conduct="" such="" emergency="" restoration="" should="" be="" greatly="" reduced="" following="" the="" completion="" of="" the="" fish="" and="" wildlife="" and="" sensitive="" environments="" plan="" required="" under="" section="" 4201="" of="" opa.="" however,="" emergency="" restoration="" will="" be="" incident-="" or="" resource-="" specific="" and="" may="" not="" be="" specifically="" identified="" in="" the="" fish="" and="" wildlife="" and="" sensitive="" environments="" plan.="" comment:="" other="" commenters="" indicated="" that="" emergency="" restoration="" was="" not="" properly="" part="" of="" the="" preassessment="" phase.="" response:="" noaa="" has="" included="" this="" subpart="" under="" the="" preassessment="" phase="" because="" that="" is="" the="" time-frame="" during="" which="" the="" trustee(s)="" may="" likely="" be="" faced="" with="" the="" possibility="" of="" conducting="" emergency="" restoration.="" comment:="" a="" number="" of="" commenters="" provided="" support="" for="" the="" development="" of="" national,="" regional,="" and="" local="" protocols;="" each="" respectively="" being="" more="" specific.="" others="" cautioned="" against="" a="" strong="" emphasis="" on="" the="" use="" of="" local="" plans="" and="" protocols,="" since="" a="" discharge="" may="" never="" occur="" in="" many="" areas.="" response:="" noaa="" does="" not="" require="" the="" development="" of="" such="" protocols,="" but="" encourages="" the="" trustee(s)="" to="" develop="" appropriate="" protocols="" for="" assessment="" activities="" through="" prespill="" planning="" in="" order="" to="" avoid="" confusion="" and="" lengthy="" delays="" in="" a="" damage="" assessment.="" it="" is="" the="" determination="" of="" the="" trustee(s)="" whether="" such="" protocols="" should="" be="" developed="" for="" specific="" area(s).="" areas="" that="" have="" a="" history="" of="" oil="" discharges="" will="" likely="" benefit="" from="" the="" development="" of="" such="" protocols.="" draft="" assessment/restoration="" plan="" (darp)="" subpart="" c="" preamble="" general="" the="" proposed="" rule="" authorizes="" the="" trustee(s)="" to="" use="" a="" variety="" of="" assessment="" procedures,="" depending="" on="" the="" nature="" and="" extent="" of="" potential="" effects="" of="" the="" discharge="" of="" oil.="" although="" each="" assessment="" will="" be="" incident-specific="" there="" are="" many="" common="" elements.="" for="" example,="" the="" trustee(s)="" will="" always="" conduct="" the="" preassessment="" phase="" as="" outlined="" in="" subpart="" b="" and="" develop="" a="" darp="" under="" this="" subpart.="" the="" purposes="" of="" the="" darp="" are="" to="" ensure="" that="" the="" assessment/restoration="" is="" performed="" in="" a="" planned,="" cost-effective,="" and="" systematic="" manner,="" and="" provide="" for="" public="" review="" and="" comment="" of="" the="" restoration="" plans="" as="" required="" under="" section="" 1006="" of="" opa.="" the="" darp="" should="" be="" developed="" in="" accordance="" with="" the="" requirements="" and="" procedures="" in="" this="" subpart="" and="" in="" subparts="" d,="" e,="" f,="" and="" g.="" in="" addition,="" nepa="" and="" esa="" compliance="" shall="" be="" incorporated="" into="" the="" restoration="" planning="" process="" and="" be="" made="" part="" of="" the="" darp.="" nepa="" complements="" the="" purposes="" of="" opa="" to="" develop="" an="" integrated="" approach="" to="" environmental="" planning="" and="" decisionmaking.="" noaa="" encourages="" the="" trustee(s)="" to="" integrate="" nepa="" procedures="" with="" the="" darp="" procedures="" described="" below="" at="" the="" earliest="" possible="" time.="" the="" darp="" should="" be="" combined="" with="" the="" appropriate="" nepa="" document="" to="" create="" a="" single="" integrated="" environmental="" planning="" tool="" for="" the="" trustee(s)="" and="" the="" public.="" the="" scoping="" and="" public="" review="" procedures="" of="" these="" regulations="" should="" be="" implemented="" to="" provide="" compliance="" with="" nepa.="" nepa="" compliance="" should="" not="" impose="" additional="" burdens="" upon="" the="" trustee(s).="" rather,="" those="" procedures="" normally="" contemplated="" as="" part="" of="" the="" darp="" can="" be="" framed="" as="" nepa="" analysis="" and="" full="" nepa="" compliance="" achieved="" without="" additional="" paperwork="" or="" data="" gathering.="" the="" regulations="" of="" the="" council="" on="" environmental="" quality="" (ceq)="" require="" environmental="" impact="" statements="" (eis)="" to="" be="" analytic="" rather="" than="" encyclopedic="" (40="" cfr="" 1502.2)="" and="" encourage="" the="" discussion="" of="" impacts="" in="" proportion="" to="" their="" significance.="" the="" darp="" need="" not="" be="" expanded="" in="" scope="" or="" length="" to="" achieve="" nepa's="" goal="" of="" producing="" an="" environmental="" decision="" document="" useful="" to="" the="" trustee(s)="" and="" the="" public.="" (40="" cfr="" 1502.14,="" 40="" cfr="" 102.15)="" rather,="" concise="" analysis="" of="" available="" restoration="" alternatives,="" and="" the="" consequences="" of="" their="" implementation="" in="" the="" post-spill="" environment="" is="" at="" the="" heart="" of="" the="" darp="" as="" well="" as="" any="" nepa="" document="" with="" which="" it="" may="" be="" combined.="" as="" mentioned="" throughout="" this="" preamble="" and="" proposed="" rule,="" the="" trustee(s)="" is="" strongly="" encouraged="" to="" develop="" prespill="" plans="" for="" conducting="" an="" assessment="" and="" restoration.="" those="" prespill="" plans="" could="" be="" so="" specific="" as="" to="" identify="" the="" type="" of="" assessment="" procedure="" and="" restoration="" actions="" likely="" to="" be="" conducted="" under="" certain="" discharge="" scenarios.="" if="" so,="" the="" darp="" should="" be="" consistent="" with="" the="" actions="" identified="" in="" the="" prespill="" plan="" to="" the="" maximum="" extent="" practicable.="" noaa="" also="" encourages="" the="" trustee(s)="" to="" view="" the="" prespill="" planning="" process="" as="" an="" opportunity="" to="" develop="" broad="" or="" programmatic="" nepa="" documents="" to="" which="" future="" site="" or="" project="" specific="" nepa="" documents="" may="" be="" tiered.="" (see="" 40="" cfr="" 1502.20,="" 40="" cfr="" 1502.40)="" the="" inclusion="" of="" the="" nepa="" analysis="" with="" the="" prespill="" plan="" will="" assist="" both="" the="" trustee(s)="" and="" the="" public="" to="" anticipate="" necessary="" restoration="" actions,="" their="" impacts="" and="" successes,="" and="" promote="" early="" resolution="" of="" oil="" spill="" incidents.="" the="" darp,="" along="" with="" any="" significant="" modifications="" and="" associated="" comments="" and="" responses,="" shall="" be="" placed="" in="" the="" administrative="" record.="" the="" darp="" shall="" also="" become="" the="" report="" of="" assessment.="" the="" trustee(s)="" shall="" have="" final="" approval="" as="" to="" the="" content="" and="" development="" of="" the="" darp.="" the="" darp="" shall="" be="" developed="" in="" order="" to="" fulfill="" applicable="" nepa="" requirements.="" those="" restoration="" actions="" that="" do="" not="" individually="" or="" cumulatively="" have="" a="" significant="" effect="" on="" the="" human="" environment="" may="" be="" categorically="" excluded="" from="" nepa="" compliance="" by="" a="" federal="" trustee="" through="" its="" nepa="" implementation="" regulations.="" (see="" 40="" cfr="" 1508.4)="" the="" federal="" trustee(s)="" should="" also="" consider="" the="" need="" for="" coastal="" states="" consistency="" evaluations="" and="" rulings,="" pursuant="" to="" the="" coastal="" zone="" management="" act="" for="" the="" darp.="" noaa="" specifically="" solicits="" comments="" upon="" nepa="" compliance="" and="" the="" availability="" of="" the="" ``functional="" equivalence''="" doctrine="" to="" federal="" trustees.="" content="" just="" as="" each="" assessment/restoration="" will="" have="" common="" elements,="" each="" darp="" will="" address="" the="" same="" components="" of="" each="" assessment/restoration.="" the="" darp="" will="" address="" each="" of="" the="" four="" components="" of="" the="" assessment="" phase:="" (1)="" the="" injury="" determination="" component,="" i.e.,="" results="" of="" injury="" determination="" studies,="" to="" the="" extent="" they="" are="" known,="" with="" documentation="" of="" those="" results;="" (2)="" the="" injury="" quantification="" component,="" i.e.,="" the="" results="" of="" quantification="" studies,="" to="" the="" extent="" they="" can="" be="" calculated,="" with="" documentation="" of="" those="" results;="" (3)="" the="" restoration="" component,="" i.e.,="" the="" evaluation,="" selection,="" and="" estimated="" cost="" of="" planned="" restoration="" actions;="" and="" (4)="" the="" compensable="" values="" component,="" i.e.,="" valuation="" studies="" planned,="" subject="" to="" some="" exceptions,="" with="" the="" results="" of="" those="" studies="" if="" deemed="" appropriate="" by="" the="" trustee(s).="" it="" is="" recognized="" that,="" for="" cdas,="" where="" there="" are="" prolonged="" (multi-year)="" studies,="" the="" trustee(s)="" need="" not="" develop="" all="" components="" of="" the="" darp="" simultaneously,="" but="" may="" develop="" annual="" reports="" to="" update="" the="" darp="" as="" the="" assessment="" progresses.="" each="" darp="" should="" include="" the="" following="" common="" elements.="" first,="" the="" darp="" shall="" identify="" the="" discharge="" of="" concern="" and="" give="" descriptions="" of="" the="" natural="" resources="" and/or="" services="" involved.="" the="" trustee(s)="" should="" include="" a="" statement="" of="" authority="" for="" asserting="" trusteeship,="" or="" co-="" trusteeship,="" for="" those="" natural="" resources="" and/or="" services="" considered="" in="" the="" darp.="" the="" darp="" shall="" also="" include="" the="" preassessment="" phase="" report="" and="" the="" information="" requirements="" of="" each="" of="" the="" assessment="" procedures,="" as="" described="" in="" subparts="" d,="" e,="" f,="" and="" g.="" for="" example,="" for="" a="" type="" a="" assessment,="" subpart="" e="" requires="" that="" the="" trustee(s)="" provide="" a="" copy="" of="" the="" inputs="" used="" to="" apply="" the="" model.="" these="" are="" the="" types="" of="" information="" requirements="" that="" would="" be="" included="" in="" a="" darp="" for="" a="" type="" a="" assessment.="" therefore,="" the="" level="" of="" detail="" for="" each="" component="" of="" the="" darp="" shall="" be="" consistent="" with="" what="" is="" appropriate="" for="" the="" type="" of="" assessment="" procedures="" being="" conducted.="" development="" because="" of="" the="" dynamic="" nature="" of="" discharges="" of="" oil,="" the="" trustee(s)="" should="" begin="" implementation="" of="" the="" injury="" determination="" and="" quantification="" components="" of="" the="" assessment/restoration="" as="" soon="" as="" practicable="" after="" these="" components="" are="" developed="" and="" approved="" by="" the="" trustee(s).="" as="" data="" are="" produced="" in="" the="" injury="" determination="" and="" quantification="" components,="" the="" trustee(s)="" should="" then="" complete="" the="" restoration="" component="" and="" design="" of="" the="" compensable="" values="" component="" for="" the="" injured="" natural="" resources="" and/or="" services.="" however,="" except="" as="" provided="" for="" in="" prespill="" plans="" (sec.="" 990.30(c)="" of="" the="" proposed="" rule)="" or="" for="" emergency="" restoration="" (sec.="" 990.25="" of="" the="" proposed="" rule),="" the="" restoration="" planning="" and="" compensable="" values="" components="" may="" not="" be="" implemented="" before="" public="" review="" and="" comment,="" as="" discussed="" below.="" where="" there="" are="" multiple="" trustees,="" these="" trustee(s)="" should="" also="" jointly="" develop="" the="" darp.="" the="" proposed="" rule="" provides="" that,="" where="" there="" are="" multiple="" trustees,="" a="" lead="" administrative="" trustee="" should="" be="" designated="" to="" administer="" the="" darp.="" the="" lead="" administrative="" trustee="" should="" act="" as="" coordinator="" and="" contact="" regarding="" all="" aspects="" of="" the="" darp.="" the="" trustees="" are="" encouraged="" to="" cooperate="" and="" coordinate="" any="" darp="" that="" involves="" coexisting="" or="" contiguous="" natural="" resources="" or="" concurrent="" jurisdiction,="" but="" they="" arrange="" to="" divide="" responsibility="" for="" implementing="" the="" components="" of="" the="" assessment="" in="" any="" manner="" that="" is="" agreed="" upon="" by="" all="" of="" the="" affected="" natural="" resource="" trustees.="" the="" proposed="" rule="" requires="" public="" involvement="" in="" various="" aspects="" and="" stages="" of="" the="" assessment/restoration="" process.="" therefore,="" the="" proposed="" rule="" does="" not="" require="" the="" trustee(s)="" to="" seek="" public="" review="" and="" comment="" of="" injury="" determination/quantification="" studies="" proposed="" in="" the="" darp="" except="" those="" undertaken="" pursuant="" to="" a="" cda.="" for="" the="" compensation="" formula,="" the="" type="" a="" model,="" and="" the="" eda,="" the="" trustee(s)="" need="" only="" notify="" the="" public="" as="" to="" the="" type="" of="" assessment="" procedure="" being="" conducted.="" the="" trustee(s),="" however,="" always="" has="" the="" option="" to="" provide="" for="" formal="" public="" review="" and="" comment="" should="" the="" trustee(s)="" deem="" this="" appropriate.="" for="" a="" cda,="" the="" trustee(s)="" must="" provide="" for="" public="" review="" and="" comment="" of="" the="" injury="" determination="" and="" quantification="" studies.="" the="" trustee(s)="" must="" provide="" an="" opportunity="" for="" public="" comment="" on="" the="" restoration="" component="" of="" the="" darp.="" where="" there="" is="" no="" regional="" restoration="" plan="" developed="" and="" adopted="" following="" public="" review="" and="" comment="" pursuant="" to="" prespill="" planning,="" as="" described="" in="" sec.="" 990.16="" of="" this="" part,="" the="" trustee(s)="" must="" provide="" for="" public="" review="" and="" comment="" of="" the="" restoration="" component="" of="" darps="" developed="" pursuant="" to="" the="" compensation="" formula,="" type="" a="" model,="" eda,="" and="" cda.="" however,="" where="" a="" regional="" restoration="" plan="" has="" been="" developed="" and="" adopted,="" following="" public="" review="" and="" comment="" pursuant="" to="" prespill="" planning,="" as="" described="" in="" sec.="" 990.16="" of="" this="" part,="" the="" trustee(s)="" must="" notify="" the="" public="" of="" the="" availability="" of="" a="" darp="" for="" a="" compensation="" formula="" or="" type="" a="" assessment="" and="" seek="" comment="" on="" that="" decision.="" the="" trustee(s)="" may="" provide="" for="" such="" public="" comment="" on="" each="" assessment="" using="" a="" compensation="" formula="" or="" type="" a="" assessment="" or="" may="" provide="" periodic="" notice="" (e.g.,="" once="" a="" month)="" of="" the="" intent="" to="" apply="" several="" recoveries="" from="" these="" assessments="" to="" a="" regional="" restoration="" plan.="" the="" trustee(s)="" must="" provide="" for="" public="" review="" and="" comment="" of="" the="" restoration="" components="" of="" darps="" developed="" pursuant="" to="" an="" eda="" or="" cda.="" it="" is="" at="" the="" discretion="" of="" the="" trustee(s),="" however,="" to="" provide="" for="" notification,="" review,="" and="" comment="" of="" those="" portions="" of="" the="" darp="" concerning="" the="" calculation="" of="" compensable="" values.="" the="" trustee(s),="" at="" his="" discretion,="" may="" withhold="" the="" description="" of="" studies="" and="" methodologies="" for="" determining="" the="" damages="" for="" the="" compensable="" values="" from="" public="" review="" and="" comment.="" such="" damages="" are="" still="" afforded="" the="" rebuttable="" presumption,="" but="" may="" not="" be="" eligible="" for="" judicial="" review="" on="" the="" record.="" where="" the="" trustee(s)="" is="" required="" to="" provide="" for="" public="" review="" and="" comment,="" the="" trustee(s)="" must="" provide="" a="" minimum="" of="" 30="" calendar="" days.="" the="" trustee(s),="" in="" his="" discretion,="" may="" grant="" reasonable="" extensions="" for="" that="" review.="" notification="" or="" publication="" of="" a="" darp="" may="" be="" provided="" in="" a="" publication="" of="" local,="" state,="" regional,="" or="" national="" circulation,="" as="" deemed="" appropriate="" to="" the="" scope="" of="" the="" assessment/restoration="" by="" the="" trustee(s).="" the="" proposed="" rule="" states="" that="" the="" darp="" may="" be="" modified="" at="" any="" stage="" of="" the="" assessment/restoration="" process="" as="" new="" information="" becomes="" available.="" any="" modification="" to="" the="" darp="" that="" is="" significant="" in="" the="" judgment="" of="" the="" trustee(s)="" shall="" be="" made="" available="" for="" review="" and="" comment="" for="" a="" period="" of="" at="" least="" 30="" calendar="" days,="" with="" reasonable="" extensions="" granted="" at="" the="" discretion="" of="" the="" trustee(s),="" before="" tasks="" subject="" to="" modification="" are="" begun.="" however,="" any="" modification="" to="" the="" darp="" that="" is="" not="" significant="" in="" the="" judgment="" of="" the="" trustee(s)="" may="" be="" made="" available="" for="" review="" at="" the="" discretion="" of="" the="" trustee(s),="" but="" the="" implementation="" of="" such="" modification="" need="" not="" be="" delayed="" as="" a="" result="" of="" such="" review.="" the="" proposed="" rule="" provides="" that="" the="" trustee(s)="" must="" review="" and="" respond="" to="" public="" comments="" during="" preparation="" of="" the="" restoration="" component="" of="" the="" darp.="" in="" addressing="" comments="" received="" concerning="" the="" proposed="" restoration="" approach,="" it="" is="" not="" necessary="" for="" the="" trustee(s)="" to="" respond="" to="" each="" comment="" received.="" comments="" may="" be="" summarized="" in="" like-subject="" areas="" and="" responded="" to="" only="" once.="" finally,="" the="" proposed="" rule="" provides="" that,="" at="" the="" option="" of="" the="" trustee(s),="" and="" if="" agreed="" to="" by="" any="" rp(s)="" acting="" jointly,="" the="" rp(s)="" or="" any="" other="" party="" under="" the="" direction,="" guidance,="" and="" monitoring="" of="" the="" trustee(s)="" may="" implement="" all="" or="" any="" part="" of="" the="" darp="" as="" approved="" by="" the="" trustee(s).="" any="" decision="" to="" involve="" the="" rp(s)="" shall="" be="" documented="" in="" the="" darp.="" other="" common="" elements="" of="" a="" darp="" protocols:="" selection="" or="" development="" of="" specific="" data="" collection="" protocols="" in="" the="" preassessment="" and="" assessment/restoration="" activities="" is="" left="" to="" the="" discretion="" of="" the="" trustee(s)="" because="" of="" the="" incident-="" specific="" nature="" of="" discharges="" and="" broad="" range="" of="" natural="" resources="" and/="" or="" services="" potentially="" affected.="" therefore,="" only="" general="" guidelines="" for="" protocol="" selection="" are="" provided="" to="" the="" trustee(s)="" in="" this="" preamble="" and="" proposed="" rule.="" protocols="" should="" be="" chosen="" that:="" (1)="" are="" applicable="" to="" the="" discharge="" and="" environmental="" setting;="" (2)="" are="" cost="" effective;="" and="" (3)="" will="" provide="" information="" consistent="" with="" data="" quality="" requirements.="" factors="" that="" should="" be="" considered="" in="" selecting="" the="" protocols="" include,="" but="" are="" not="" limited="" to:="" (1)="" the="" nature="" of="" the="" discharge="" and="" environmental="" setting;="" (2)="" applicable="" study="" design="" requirements,="" such="" as="" that="" developed="" by="" green,="" r.h.,="" sampling="" design="" and="" statistical="" methods="" for="" environmental="" biologists;="" john="" wiley="" &="" sons,="" new="" york,="" ny="" (1979);="" (3)="" qa="" and="" data="" management="" requirements;="" (4)="" potential="" human="" health="" and="" safety;="" and="" (5)="" benefits="" and="" costs="" of="" alternative="" protocols.="" where="" practicable,="" the="" trustee(s)="" should="" use="" protocols="" that="" are="" scientifically="" verified,="" well="" documented="" and="" standardized="" by="" the="" u.s.="" environmental="" protection="" agency="" (u.s.="" epa),="" u.s.="" fish="" and="" wildlife="" service,="" u.s.="" army="" corps="" of="" engineers,="" american="" society="" for="" testing="" and="" materials,="" american="" public="" health="" association,="" organization="" of="" economic="" cooperation="" and="" development,="" or="" other="" government="" or="" scientific="" agencies.="" some="" protocols="" may="" not="" be="" standardized="" but="" nevertheless="" are="" appropriate="" for="" incident-specific="" evaluations="" or="" may="" be="" the="" only="" protocols="" available="" at="" the="" time.="" other="" protocols="" may="" need="" to="" be="" modified="" or="" developed.="" the="" trustee(s)="" should="" have="" the="" option="" to="" use="" whatever="" protocols="" may="" be="" relevant="" to="" the="" discharge.="" quality="" assurance="" (qa):="" when="" practicable,="" data="" collection="" in="" preassessment="" and="" subsequent="" damage="" assessment="" should="" be="" consistent="" with="" the="" qa="" guidance="" developed="" by="" the="" u.s.="" epa,="" guidelines="" and="" specifications="" for="" preparing="" quality="" assurance="" program="" plans;="" office="" of="" monitoring="" systems="" and="" quality="" assurance,="" washington,="" dc,="" epa-qams-005/="" 80,="" (1980);="" u.s.="" epa,="" interim="" guidelines="" and="" specifications="" for="" preparing="" quality="" assurance="" project="" plans;="" office="" of="" monitoring="" systems="" and="" quality="" assurance,="" washington,="" dc,="" epa-qams-005/80,="" (1980);="" and="" u.s.="" epa,="" preparing="" perfect="" project="" plans;="" office="" of="" research="" and="" development,="" cincinnati,="" oh,="" epa/600/9-89/087,="" (1989).="" the="" program="" plan="" outlines="" the="" overall="" quality="" of="" assessment="" activities;="" addressing="" qa="" issues="" in="" regard="" to="" policy,="" planning,="" review,="" and="" implementation.="" project="" plans,="" a="" vital="" part="" of="" the="" program="" plan,="" serve="" as="" guidance="" on="" aspects="" of="" data="" collection="" for="" the="" individual="" studies="" comprising="" the="" damage="" assessment.="" preassessment="" project="" plans="" should="" serve="" to="" assess="" suppositions="" for="" the="" damage="" assessment="" process.="" eda="" project="" plans="" may="" be="" combined="" among="" studies="" with="" similar="" scope="" and="" substance.="" cda="" project="" plans="" should="" be="" of="" sufficient="" scope="" and="" substance="" that="" they="" can="" stand="" on="" their="" own.="" the="" trustee(s)="" should="" develop="" both="" program="" and="" project="" plans="" in="" an="" eda="" and="" a="" cda.="" it="" is="" understood="" that="" due="" to="" the="" nature="" of="" oil="" discharges,="" certain="" qa="" requirements="" as="" prescribed="" by="" the="" u.s.="" epa="" may="" not="" be="" practicable.="" therefore,="" the="" trustee(s)="" is="" encouraged="" to="" develop="" his="" own="" qa="" plans="" to="" allow="" for="" relevant="" data="" collection.="" data="" collection="" involving="" actual="" measurement="" may="" also="" be="" subject="" to="" the="" provisions="" concerning="" human="" health="" and="" safety="" and="" applicability="" of="" natural="" resource="" protection="" statutes.="" data="" management:="" where="" appropriate,="" the="" trustee(s)="" should="" also="" develop="" a="" data="" management="" plan.="" this="" is="" most="" appropriate="" for="" an="" eda="" or="" a="" cda.="" establishment="" of="" a="" data="" management="" system="" provides="" efficient="" access="" to="" collected="" data="" and="" information.="" the="" trustee(s)="" is="" encouraged="" to="" develop="" such="" a="" centralized="" data="" management="" plan,="" if="" not="" done="" so="" during="" prespill="" planning,="" to="" accommodate="" the="" volume="" and="" complexity="" of="" data.="" an="" effective="" data="" management="" plan="" should="" address,="" at="" a="" minimum,="" the="" following:="" (1)="" type="" and="" volume="" of="" data;="" (2)="" uses="" of="" the="" data;="" (3)="" existing="" data="" management="" capabilities;="" (4)="" types="" of="" analyses="" conducted;="" (5)="" qa="" needs;="" (6)="" reporting="" requirements;="" and="" (7)="" access="" to="" data="" further="" information="" is="" available="" in="" the="" preassessment="" phase="" guidance="" document="" referenced="" earlier="" in="" this="" preamble.="" responses="" to="" comments="" comment:="" one="" commenter="" recommended="" that="" damage="" assessment="" contingency="" plans="" not="" be="" rigidly="" drawn.="" the="" commenter="" cautioned="" that="" such="" a="" plan="" could="" become="" a="" liability="" where="" the="" nature="" of="" a="" particular="" discharge="" is="" not="" contemplated="" in="" the="" plan.="" further,="" it="" could="" be="" an="" unwise="" expenditure="" to="" develop="" a="" contingency="" plan="" broad="" enough="" in="" scope="" to="" address="" an="" endless="" array="" of="" possible="" discharges.="" response:="" noaa="" agrees="" that="" damage="" assessment="" and="" restoration="" plans="" should="" not="" be="" rigidly="" drawn.="" comment:="" one="" commenter="" stated="" that="" noaa="" must="" guard="" against="" the="" frivolous="" spending="" of="" company="" funds,="" when="" the="" company="" has="" little="" or="" no="" input="" into="" how="" that="" money="" is="" spent.="" response:="" noaa="" agrees.="" the="" assessment/restoration="" guidance="" procedures="" allow="" for="" public="" notice,="" comment,="" and="" consideration="" of="" all="" public="" comment="" before="" a="" final="" restoration="" plan="" is="" developed.="" these="" procedures="" should="" mitigate="" against="" any="" frivolous="" expenditures.="" comment:="" most="" commenters="" indicated="" that="" the="" trustee(s)="" should="" follow="" quality="" assurance="" (qa)="" procedures="" developed="" by="" or="" similar="" to="" those="" of="" the="" u.s.="" epa.="" some="" commenters,="" however,="" indicated="" that="" the="" full="" qa="" procedure="" may="" add="" more="" expense="" without="" necessarily="" increasing="" the="" quality="" of="" the="" data.="" response:="" noaa="" agrees="" that,="" when="" appropriate,="" the="" trustee(s)="" and="" rp(s)="" together="" should="" develop="" and="" implement="" qa="" plans.="" however,="" noaa="" suggests="" that="" the="" trustee(s)="" determine="" those="" components="" of="" the="" u.s.="" epa's="" qa="" procedures="" that="" are="" relevant="" to="" the="" discharge.="" compensation="" formulas="" subpart="" d="" preamble="" general="" through="" this="" proposed="" rule,="" noaa="" is="" providing="" the="" trustee(s)="" with="" a="" variety="" of="" assessment="" procedures="" in="" recognition="" of="" the="" need="" for="" flexibility="" in="" dealing="" with="" situations="" that,="" by="" their="" nature,="" are="" incident-specific.="" the="" criteria="" for="" the="" selection="" of="" any="" procedure="" are="" not="" rigid,="" nor="" does="" the="" proposed="" rule="" require="" the="" trustee(s)="" to="" select="" a="" particular="" procedure="" for="" a="" particular="" discharge.="" to="" assist="" the="" trustee(s)="" in="" making="" this="" decision,="" noaa="" is="" providing="" guidance="" to="" the="" trustee(s)="" in="" selecting="" the="" procedure="" most="" appropriate="" for="" a="" particular="" discharge.="" the="" trustee(s)="" is="" then="" able="" to="" choose="" among="" the="" various="" procedures="" based="" upon="" the="" circumstances="" of="" the="" discharge="" or="" the="" resources="" and/or="" services="" involved.="" however,="" due="" to="" the="" large="" number="" of="" small="" discharges,="" it="" is="" expected="" that="" the="" trustee(s)="" will="" use="" the="" compensation="" formulas="" or="" the="" type="" a="" model="" to="" determine="" damages="" more="" frequently="" than="" either="" the="" eda="" or="" the="" cda.="" the="" availability="" of="" a="" compensation="" formula="" or="" a="" computer="" model="" for="" a="" particular="" discharge,="" for="" example,="" would="" not="" necessarily="" rule="" out="" the="" use="" of="" an="" expedited="" or="" comprehensive="" damage="" assessment="" procedure="" where="" the="" trustee(s)="" finds="" that="" either="" the="" formula="" or="" the="" model="" would="" not="" be="" the="" best="" method="" for="" assessing="" damages.="" parallel="" assessments="" using="" a="" combination="" of="" more="" than="" one="" procedure="" may="" be="" allowed,="" provided="" there="" is="" no="" double="" recovery.="" noaa="" is="" suggesting="" that="" the="" trustee(s)="" may="" exercise="" best="" professional="" judgment="" in="" fashioning="" an="" approach="" to="" an="" assessment="" using="" the="" four="" proposed="" procedures="" singly="" or="" in="" some="" combination.="" this="" approach="" is="" consistent="" in="" concept="" with="" the="" parallel="" assessments="" provided="" for="" under="" the="" current="" cercla="" rule.="" the="" compensation="" formulas="" were="" developed="" after="" extensive="" review="" of="" the="" scientific="" and="" economic="" literature,="" with="" particular="" emphasis="" on="" restoration="" of="" various="" habitat="" types.="" this="" information="" was="" then="" compiled="" to="" be="" used="" with="" both="" the="" current="" type="" a="" model="" for="" coastal="" and="" marine="" environments="" and="" a="" draft="" version="" of="" the="" type="" a="" model="" under="" development="" for="" the="" great="" lakes="" environment="" in="" developing="" the="" compensation="" formulas.="" noaa="" is="" proposing="" these="" formulas="" for="" use="" in="" certain="" circumstances="" as="" a="" reasonable="" approach="" to="" natural="" resource="" damage="" assessment.="" noaa="" is="" specifically="" seeking="" comments="" on="" the="" reasonableness="" and="" appropriateness="" of="" such="" an="" approach.="" range="" of="" formulas="" the="" estuarine/marine="" and="" inland="" waters="" compensation="" formulas="" proposed="" are="" applicable="" to="" the="" vast="" majority="" of="" oil="" discharges.="" an="" analysis="" of="" reported="" coastal="" oil="" discharges="" from="" 1973="" through="" 1990="" shows="" that="" 99.8%="" of="" the="" discharges="" were="" less="" than="" 50,000="" gallons="" (99%="" were="" less="" than="" 10,000="" gallons).="" these="" compensation="" formulas="" are="" available="" for="" use="" by="" the="" trustee(s)="" for="" these="" relatively="" small="" discharges,="" particularly="" when="" assessing="" discharges="" that="" occur="" in="" areas="" where="" it="" might="" be="" difficult="" or="" very="" costly="" to="" ascertain="" precise="" environmental="" effects,="" e.g.,="" small="" discharges="" in="" open="" water="" or="" discharges="" occurring="" in="" areas="" that="" are="" subject="" to="" frequent="" discharges.="" the="" compensation="" formulas="" cover="" a="" range="" of="" sizes="" by="" volume="" of="" discharge.="" these="" ranges="" are="" broken="" down="" into="" four="" categories:="" 10="" gallons="" to=""><1,000 gallons;="" 1,000="" gallons="" to=""><5,000 gallons;="" 5,000="" gallons="" to=""><10,000 gallons;="" and="" 10,000="" gallons="" to="" 50,000="" gallons.="" ten="" gallons="" is="" the="" lower="" limit="" on="" discharges="" covered="" by="" the="" compensation="" formulas.="" noaa="" is="" not="" saying="" that="" discharges="" of="" less="" than="" 10="" gallons="" do="" not="" cause="" injury.="" however,="" after="" evaluating="" thousands="" of="" simulations="" of="" scenarios="" involving="" very="" small="" spills,="" noaa="" determined="" that="" ten="" gallons="" is="" a="" statistically="" valid="" lower="" limit="" for="" this="" type="" of="" assessment="" procedure.="" an="" analysis="" of="" the="" data="" used="" to="" develop="" the="" formulas="" showed="" that="" the="" smaller="" discharges,="" i.e.,="" fewer="" than="" 10="" gallons,="" were="" statistically="" meaningless,="" i.e.,="" too="" much="" scatter,="" from="" which="" to="" draw="" ``average''="" assumptions.="" however,="" this="" lower="" limit="" is="" not="" meant="" to="" preclude="" recovery="" for="" these="" smaller="" discharges.="" there="" are="" several="" options="" available="" to="" the="" trustee(s).="" in="" some="" cases,="" it="" may="" be="" reasonable="" for="" the="" trustee(s)="" to="" linearly="" extrapolate="" downward="" from="" the="" lower="" damage="" figure="" contained="" in="" the="" formulas="" for="" the="" 10-gallon="" discharges.="" on="" the="" other="" hand,="" where="" the="" environmental="" conditions="" at="" the="" time="" of="" the="" discharge="" indicate="" that="" extrapolation="" from="" the="" averages="" in="" the="" formulas="" is="" inappropriate,="" the="" trustee(s)="" may="" apply="" the="" type="" a="" model="" at="" 43="" cfr="" 11="" to="" the="" discharge.="" finally,="" if="" there="" are="" unusual="" circumstances="" that="" indicate="" the="" need="" for="" site-specific="" analysis,="" the="" trustee(s)="" may="" decide="" that="" an="" eda="" would="" be="" more="" appropriate.="" as="" for="" the="" upper="" limit="" of="" 50,000="" gallons,="" experience="" indicates="" that="" discharges="" over="" 50,000="" gallons="" are="" likely="" to="" result="" in="" injury="" that="" would="" be="" more="" appropriately="" addressed="" by="" another="" assessment="" procedure,="" e.g.,="" the="" type="" a="" or="" eda.="" these="" large="" discharges="" do="" not="" typify="" the="" ``small''="" discharges="" described="" by="" the="" scenarios="" used="" to="" develop="" the="" compensation="" formulas.="" determining="" the="" ``volume''="" of="" oil="" discharged="" is="" dependent="" upon="" whether="" the="" trustee(s)="" is="" using="" the="" estuarine/marine="" formula="" or="" the="" inland="" formula.="" this="" distinction="" is="" due="" to="" the="" different="" treatment="" of="" cleanup="" between="" the="" two="" types="" of="" water="" systems.="" therefore,="" the="" discussion="" concerning="" estimating="" the="" volume="" discharges="" is="" given="" below="" within="" the="" discussion="" of="" each="" formula.="" damage="" formula="" generally,="" with="" increasing="" volume="" discharged,="" damage="" totals="" increase="" while="" damages="" per="" gallon="" decrease.="" however,="" this="" relationship="" between="" damages="" and="" volume="" discharged="" is="" a="" complex="" non-linear="" function="" that="" varies="" by="" scenario.="" the="" results="" of="" the="" scenarios="" showed="" a="" definite="" damage="" curve.="" the="" goal="" then="" was="" to="" define="" as="" accurately="" as="" possible="" the="" shape="" of="" that="" curve.="" breaking="" down="" the="" scenarios="" into="" the="" four="" ranges="" of="" size="" defined="" earlier="" gives="" a="" linear="" interpolation="" of="" the="" scenario="" results.="" the="" formula="" itself="" is="" designed="" to="" place="" the="" incident="" of="" concern="" on="" a="" given="" point="" of="" the="" curve.="" the="" formula="" is="" given="" as="" ``1991$="m(VOL)+b.''" in="" this="" formula,="" ``m''="" is="" multiplier,="" multiplied="" by="" the="" number="" of="" gallons="" discharged,="" that="" represents="" the="" change="" in="" dollars="" per="" gallons="" discharged,="" and="" ``b''="" (positive="" or="" negative)="" represents="" the="" number="" of="" dollars="" added="" to="" that="" product="" to="" arrive="" at="" the="" actual="" damages="" for="" the="" volume="" discharged.="" both="" ``m''="" and="" ``b''="" are="" given="" in="" the="" tables="" in="" appendix="" a="" of="" each="" of="" the="" technical="" documents.="" ``(vol)''="" is="" the="" amount="" of="" oil="" discharged,="" as="" defined="" in="" the="" proposed="" rule.="" this="" formula,="" as="" applied,="" defines="" damages="" as="" a="" function="" of="" volume="" discharged.="" the="" dollar="" figures="" produced="" by="" applying="" the="" compensation="" formula="" described="" above="" represent="" 1991="" u.s.="" dollars.="" these="" damages="" calculated="" in="" 1991="" u.s.="" dollars="" may="" be="" translated="" to="" u.s.="" dollars="" for="" another="" year="" using="" the="" gross="" national="" product="" price="" deflator="" price="" index.="" this="" index="" may="" be="" obtained="" from="" the="" economic="" report="" of="" the="" president,="" issued="" annually,="" or="" the="" survey="" of="" current="" business,="" issued="" monthly,="" for="" years="" not="" yet="" in="" the="" economic="" report.="" these="" formulas="" allow="" an="" estimate="" of="" damages="" per="" gallon,="" taking="" into="" account="" average="" restoration="" costs="" plus="" average="" direct="" lost="" use="" values="" pending="" restoration.="" the="" following="" types="" of="" damages="" are="" included="" in="" the="" formulas:="" fishery="" species="" consumptive="" use="" values="" (fishing),="" wildlife="" species="" consumptive="" use="" values="" (hunting)="" and="" nonconsumptive="" (viewing)="" use="" values,="" restocking="" costs="" and="" direct="" restoration="" costs="" of="" affected="" habitats.="" restoration="" costs="" are="" included="" for="" restoration="" activities="" that="" are="" technically="" feasible="" and="" cost-effective.="" passive="" use="" (nonuse)="" values="" are="" currently="" not="" included="" in="" the="" formulas,="" since,="" at="" the="" time="" of="" their="" development,="" noaa="" determined="" that="" sufficient="" information="" did="" not="" exist="" concerning="" average="" passive="" use="" values="" applicable="" to="" the="" compensation="" formula="" approach.="" noaa="" has="" decided="" to="" propose="" the="" formulas="" without="" passive="" use="" values="" so="" that="" they="" would="" be="" available="" for="" use="" by="" the="" trustee(s)="" rather="" than="" delay="" proposing="" to="" a="" future="" date.="" even="" though="" passive="" values="" are="" not="" included="" in="" the="" proposed="" compensation="" formulas,="" noaa="" is="" considering="" how="" such="" values="" may="" be="" included.="" therefore,="" noaa="" specifically="" requests="" comments="" on="" how="" such="" passive="" values="" might="" be="" included="" in="" the="" compensation="" formulas.="" until="" that="" time,="" discharges="" under="" 50,000="" gallons="" that="" are="" likely="" to="" result="" in="" a="" significant="" loss="" in="" passive="" use="" values="" should="" be="" assessed="" under="" another="" procedure.="" variations="" in="" type="" of="" oil,="" region,="" habitat,="" and="" seasons="" the="" formulas="" assume="" degrees="" of="" injuries="" to="" natural="" resources="" likely="" to="" result="" from="" a="" discharge="" of="" oil.="" these="" assumptions="" take="" into="" account="" the="" amount="" and="" type="" of="" oil="" discharged="" and="" the="" region="" and="" habitat="" type="" in="" which="" the="" discharge="" occurs.="" the="" scenarios="" consider="" the="" various="" discharges="" in="" each="" of="" the="" four="" seasons.="" the="" proposed="" rule="" defines="" the="" four="" seasons="" as:="" winter="" being="" from="" january="" 1="" through="" march="" 31;="" spring="" being="" from="" april="" 1="" through="" june="" 30;="" summer="" being="" from="" july="" 1="" through="" september="" 30;="" and="" fall="" being="" from="" october="" 1="" through="" december="" 31.="" these="" seasonal="" boundaries="" correspond="" closely="" with="" biological="" seasonal="" variations.="" the="" trustee(s),="" therefore,="" identifies="" the="" correct="" scenario="" by="" locating="" the="" season="" in="" which="" the="" date="" of="" the="" discharge="" falls.="" this="" approach="" allows="" both="" a="" national="" consistency="" and="" a="" regional="" specificity.="" damage="" claim="" section="" 1017(a)="" of="" opa="" provides:="" review="" of="" any="" regulation="" promulgated="" under="" this="" act="" may="" be="" had="" upon="" application="" by="" any="" interested="" person="" only="" in="" the="" circuit="" court="" of="" appeals="" of="" the="" united="" states="" for="" the="" district="" of="" columbia.="" any="" such="" application="" shall="" be="" made="" within="" 90="" days="" from="" the="" date="" of="" promulgation="" of="" such="" regulations.="" any="" matter="" with="" respect="" to="" which="" review="" could="" have="" been="" obtained="" under="" this="" subsection="" shall="" not="" be="" subject="" to="" judicial="" review="" in="" any="" civil="" or="" criminal="" proceeding="" for="" enforcement="" or="" to="" obtain="" damages="" or="" recovery="" of="" response="" costs.="" because="" the="" compensation="" formulas="" are="" being="" developed="" as="" a="" regulation="" through="" public="" review="" and="" comment,="" any="" challenges="" to="" the="" data="" or="" models="" used="" to="" develop="" the="" formulas="" would="" have="" to="" be="" made="" within="" ninety="" days="" of="" the="" promulgation="" of="" this="" regulation="" rather="" than="" in="" a="" particular="" natural="" resource="" damage="" case,="" as="" provided="" in="" section="" 1017(a)="" of="" opa.="" if="" a="" trustee(s)="" uses="" one="" of="" the="" compensation="" formulas="" in="" a="" particular="" damage="" case,="" the="" rp="" would="" still="" have="" an="" opportunity="" to="" challenge="" the="" damage="" claim;="" however,="" that="" opportunity="" would="" be="" limited="" to="" challenging="" the="" applicability="" of="" the="" formulas="" and="" the="" accuracy="" of="" any="" site-specific="" input="" data="" used="" by="" the="" trustee(s).="" the="" damages="" calculated="" by="" the="" use="" of="" the="" compensation="" formula="" are="" conclusive="" for="" the="" injuries="" included="" in="" that="" formula.="" the="" damages="" computed="" by="" using="" the="" compensation="" formulas="" may="" be="" combined="" with="" damages="" determined="" for="" beach="" and/or="" shoreline="" closure.="" these="" damages,="" along="" with="" the="" reasonable="" costs="" of="" assessing="" those="" damages,="" are="" included="" in="" the="" demand="" presented="" to="" the="" rp(s)="" pursuant="" to="" sec.="" 990.81="" of="" this="" part.="" additional="" damages="" determined="" by="" conducting="" a="" parallel="" assessment="" may="" be="" added="" to="" the="" damages="" determined="" with="" the="" compensation="" formula="" so="" long="" as="" there="" is="" no="" double="" recovery.="" the="" trustee(s)="" shall="" document="" the="" data="" required="" to="" use="" a="" compensation="" formula.="" this="" documentation="" shall="" be="" included="" in="" the="" report="" of="" assessment="" required="" by="" sec.="" 990.80="" of="" this="" part.="" final="" restoration="" plan="" the="" trustee(s)="" shall="" develop="" a="" final="" restoration="" plan="" based="" upon="" the="" damages="" recovered="" through="" the="" use="" of="" a="" compensation="" formula.="" this="" plan="" shall="" be="" developed="" pursuant="" to="" subpart="" h="" of="" this="" part.="" references="" the="" proposed="" formulas="" and="" supporting="" documents="" for="" both="" the="" estuarine="" and="" marine="" environments="" and="" the="" inland="" (freshwater)="" environments="" are="" incorporated="" into="" the="" proposed="" rule="" by="" reference.="" they="" are:="" ``compensation="" formula="" for="" natural="" resource="" damage="" assessment="" under="" opa:="" oil="" spills="" into="" estuarine="" and="" marine="" environments,="" volumes="" i-iv''="" and="" ``compensation="" formula="" for="" natural="" resource="" damage="" assessments="" under="" opa:="" oil="" spills="" into="" inland="" (freshwater)="" waters,="" volume="" i-iii.''="" copies="" can="" be="" obtained="" from="" the="" address="" at="" the="" beginning="" of="" this="" preamble.="" estuarine="" and="" marine="" compensation="" formula="" general="" the="" estuarine="" and="" marine="" compensation="" formula="" is="" based="" upon="" the="" various="" coastal="" provinces="" with="" representative="" habitat="" types="" for="" each="" of="" these="" provinces,="" giving="" a="" total="" of="" 55="" province/habitat="" combinations.="" each="" possible="" province/habitat="" combination="" has="" an="" associated="" set="" of="" damage="" estimates="" based="" upon="" each="" of="" the="" four="" seasons,="" five="" representative="" oils,="" and="" five="" possible="" discharge="" sizes.="" the="" compensation="" tables="" given="" in="" appendix="" a="" of="" volume="" i="" of="" the="" ``compensation="" formula="" for="" natural="" resource="" damage="" assessments="" under="" opa:="" oil="" spills="" into="" estuarine="" and="" marine="" environments="" document''="" (the="" document)="" are="" based="" upon="" simulated="" discharge="" scenarios="" of="" the="" possible="" combinations="" listed="" above,="" for="" a="" total="" of="" 5,500="" resulting="" damage="" estimate="" ranges.="" each="" of="" these="" 5,500="" scenarios="" has="" certain="" environmental="" and="" other="" conditions="" that="" were="" specified="" at="" a="" predetermined="" level="" to="" allow="" for="" representation="" of="" relatively="" ``simple''="" discharges.="" basically,="" the="" fates="" and="" effects="" portions="" of="" the="" nrdam/cme="" were="" run,="" augmented="" with="" updated="" biological="" and="" economic="" data="" bases="" and="" a="" restoration="" cost="" data="" set.="" these="" scenarios="" were="" run="" with="" an="" augmented="" natural="" resource="" damage="" assessment="" model,="" coastal="" and="" marine="" environments,="" version="" 1.2="" (nrdam/cme)="" found="" at="" 43="" cfr="" part="" 11="" subpart="" d.="" for="" the="" purposes="" of="" the="" compensation="" formulas,="" residual="" and="" tidal="" currents="" are="" assumed="" to="" be="" zero,="" the="" discharge="" scenario="" is="" assumed="" to="" be="" instantaneous="" at="" the="" water="" surface,="" seasonal="" temperatures="" and="" wind="" speed="" are="" ``set="" at="" average="" values''="" for="" the="" scenario="" location="" as="" explained="" in="" volume="" i="" of="" the="" document,="" and="" wind="" direction="" is="" controlled="" to="" avoid="" having="" the="" discharge="" move="" into="" a="" different="" habitat.="" the="" oil="" products="" contained="" in="" the="" formulas="" are:="" heavy="" crude="" oil;="" light="" crude="" oil;="" no.="" 2="" fuel="" oil,="" diesel,="" and="" gasoline.="" however,="" there="" is="" a="" conversion="" table="" to="" determine="" which="" commonly="" discharged="" oil="" products="" correspond="" to="" the="" types="" of="" oils="" covered="" in="" the="" formulas.="" using="" the="" formula="" to="" use="" the="" formulas,="" the="" trustee(s)="" must="" identify:="" (1)="" whether="" the="" discharge="" occurred="" in="" a="" marine,="" estuarine,="" subtidal,="" or="" intertidal="" area,="" as="" defined="" in="" volume="" i="" of="" the="" document;="" (2)="" location="" of="" discharge,="" using="" the="" boundaries="" and="" definitions="" of="" the="" provinces="" provided="" in="" volume="" i="" of="" the="" document;="" (3)="" the="" habitat="" type="" that="" typifies="" the="" habitat="" affected="" by="" the="" discharge,="" as="" described="" in="" volume="" i="" of="" the="" document;="" (4)="" type="" of="" oil="" discharged;="" (5)="" amount="" discharged="" (the="" user="" may="" subtract="" from="" the="" discharge="" amount="" the="" volume="" of="" oil="" that="" is="" cleaned="" up="" if="" the="" cleanup="" is="" from="" the="" water="" and="" conducted="" within="" 24="" hours="" of="" the="" onset="" of="" the="" discharge.="" because="" the="" compensation="" formulas="" are="" intended="" for="" relatively="" small="" discharges,="" it="" is="" expected="" that="" in="" these="" smaller="" discharges="" much="" of="" the="" toxic="" constituents="" or="" the="" surface="" slick="" will="" dissipate="" within="" 24="" hours="" of="" discharge.="" most="" of="" the="" effects="" of="" the="" discharge="" will="" occur="" within="" that="" 24-hour="" period.="" therefore,="" cleanup="" must="" be="" carried="" out="" quickly="" to="" be="" effective="" in="" avoiding="" or="" minimizing="" impacts.="" for="" these="" reasons,="" noaa="" is="" proposing="" that="" any="" oil="" removed="" from="" the="" environment="" within="" 24="" hours="" from="" the="" onset="" of="" the="" discharge="" may="" be="" subtracted="" from="" the="" total="" amount="" discharged="" to="" determine="" the="" volume="" of="" oil="" to="" which="" the="" formula="" is="" applied.="" cleanup="" from="" shorelines="" shall="" not="" be="" subtracted="" since="" the="" majority="" of="" impacts="" on="" shore="" are="" immediate.="" also,="" the="" use="" of="" dispersants="" cannot="" be="" factored="" in="" since="" there="" likely="" will="" be="" additional="" effects="" in="" the="" water="" column="" as="" a="" result="" of="" using="" them.);="" and="" (6)="" season="" of="" discharge="" based="" upon="" date="" of="" discharge="" and="" the="" definitions="" of="" the="" seasons="" given="" in="" the="" proposed="" rule.="" determining="" damage="" figure="" for="" the="" purposes="" of="" valuing="" the="" effects="" of="" discharges,="" the="" estuarine="" and="" marine="" waters="" compensation="" formula="" is="" based="" upon="" the="" probability="" of="" effects="" in="" particular="" province/habitat="" combinations="" from="" oil="" discharges="" through="" a="" range="" of="" discharge="" sizes.="" to="" determine="" the="" damage="" figure="" for="" a="" particular="" discharge,="" the="" trustee(s)="" would="" first="" locate="" the="" appropriate="" table="" in="" appendix="" a="" of="" the="" document="" based="" upon="" province="" and="" habitat="" type="" using="" the="" guidance="" in="" volume="" i="" of="" the="" ``compensation="" formula="" for="" natural="" resource="" damage="" assessments="" under="" opa:="" oil="" spills="" into="" estuarine="" and="" marine="" environments.''="" the="" trustee(s)="" would="" then="" select="" from="" that="" table="" corresponding="" to="" the="" season="" of="" the="" discharge,="" the="" substance="" discharged,="" and="" the="" size="" of="" the="" discharge.="" the="" trustee(s)="" would="" then="" compute="" the="" dollar="" figure="" based="" on="" linear="" interpolation="" from="" the="" range="" of="" discharge="" sizes="" listed.="" to="" do="" this,="" the="" trustee(s)="" takes="" the="" ``m''="" figure="" and="" multiplies="" that="" figure="" by="" the="" number="" of="" gallons="" discharged.="" the="" trustee(s)="" then="" adds="" the="" ``b''="" figure="" number="" to="" this="" first="" total="" to="" get="" the="" final="" damages="" figure.="" for="" example,="" for="" a="" discharge="" of="" 500="" gallons="" of="" diesel="" fuel="" discharged="" in="" the="" area="" covered="" by="" scenario="" m01="" (new="" england="" off="" shore)="" on="" november="" 1,="" the="" trustee(s)="" would="" locate="" the="" table="" representing="" a="" discharge="" of="" diesel="" in="" the="" fall,="" follow="" the="" m01="" line="" to="" the="" appropriate="" column="" (spills="" between="" 100="" and="" under="" 1,000="" gallons)="" and="" apply="" the="" following="" formula="" derived="" from="" that="" table:="" 500(7.87)+0="$3,935.00." a="" 1,000="" gallon="" discharge="" of="" heavy="" crude="" on="" november="" 1="" in="" the="" same="" area="" would="" be="" computed="" as="" follows:="" 1,000(19.7778)+4481="$24,258.00." volume="" iii="" of="" the="" document="" provides="" guidance="" to="" the="" trustee(s)="" in="" calculating="" losses="" due="" to="" beach="" and/or="" shoreline="" closure.="" such="" losses="" would="" be="" in="" addition="" to="" the="" damage="" figure="" arrived="" through="" the="" formulas.="" unlike="" inland="" (freshwater)="" systems,="" there="" were="" no="" data="" that="" could="" be="" used="" to="" develop="" damages="" for="" lost="" recreational="" boating="" opportunities="" within="" the="" estuarine/marine="" compensation="" formula.="" however,="" the="" trustee(s)="" may="" add="" such="" damages="" to="" the="" formula="" where="" there="" is="" information="" to="" develop="" such="" estimates.="" inland="" waters="" compensation="" formula="" general="" the="" compensation="" formula="" for="" the="" freshwater="" systems="" covered="" by="" opa="" was="" developed="" using="" the="" same="" concept="" as="" the="" estuarine="" and="" marine="" formula.="" the="" compensation="" tables="" given="" in="" appendix="" a="" of="" volume="" i="" of="" the="" ``compensation="" formula="" for="" natural="" resource="" damage="" assessments="" under="" opa:="" oil="" spills="" into="" inland="" (freshwater)="" waters''="" (the="" document)="" are="" based="" on="" simulated="" scenarios="" of="" a="" total="" of="" 100="" province/habitat="" combinations.="" these="" scenarios="" cover="" great="" lakes="" habitats,="" fast="" and="" slow="" flowing="" rivers,="" streams,="" brooks,="" lakes,="" ponds,="" and="" wetlands.="" in="" addition,="" the="" tables="" are="" grouped="" by="" provinces,="" including:="" each="" of="" the="" great="" lakes="" and="" connecting="" channels,="" northeast,="" southeast,="" south="" florida="" and="" west="" indian,="" north="" central,="" south="" central,="" mountain,="" pacific="" northwest,="" southwest,="" alaska,="" and="" pacific="" islands.="" each="" possible="" province/habitat="" combination="" has="" an="" associated="" set="" of="" damage="" estimates="" based="" upon="" each="" of="" the="" four="" seasons,="" five="" representative="" oils,="" and="" five="" possible="" discharge="" sizes.="" the="" compensation="" tables="" given="" in="" appendix="" a="" of="" the="" document="" are="" based="" upon="" simulated="" discharge="" scenarios="" of="" the="" possible="" combinations="" listed="" above,="" for="" a="" total="" of="" 10,000="" resulting="" damage="" estimate="" ranges.="" each="" of="" these="" 10,000="" scenarios="" has="" certain="" environmental="" and="" other="" conditions="" that="" were="" specified="" at="" a="" predetermined="" level="" to="" allow="" for="" representation="" of="" relatively="" ``simple''="" discharges.="" the="" computer="" model="" used="" to="" develop="" the="" formula="" was="" a="" draft="" of="" the="" type="" a="" model="" for="" the="" great="" lakes="" environment.="" the="" natural="" resource="" damage="" assessment="" model="" for="" the="" great="" lakes="" environments="" (nrdam/gle)="" is="" scheduled="" for="" publication="" in="" 1994="" as="" a="" proposed="" rule,="" and="" thus="" will="" not="" be="" available="" to="" the="" public="" at="" the="" same="" time="" as="" the="" inland="" waters="" compensation="" formula="" is="" published.="" in="" order="" to="" ensure="" adequate="" public="" review,="" the="" version="" of="" the="" draft="" nrdam/gle="" used="" to="" develop="" the="" inland="" waters="" formula,="" along="" with="" the="" technical="" documentation,="" is="" available="" from="" the="" address="" given="" at="" the="" front="" of="" this="" notice.="" anyone="" wishing="" to="" review="" this="" material="" should="" call="" the="" contacts="" listed="" in="" this="" notice="" and="" indicate="" whether="" a="" hard="" copy="" or="" electronic="" version="" is="" preferred.="" noaa="" encourages="" requestors="" to="" ask="" for="" the="" electronic="" version="" [as="" a="" wordperfect="" 5.1="" document="" in="" ibm="" format]="" to="" reduce="" the="" expense="" of="" printing.="" the="" version="" of="" the="" nrdam/gle="" that="" is="" eventually="" published="" as="" a="" proposed="" rule="" by="" the="" u.s.="" department="" of="" the="" interior="" (doi)="" may="" differ="" somewhat="" from="" the="" version="" used="" by="" noaa="" to="" develop="" the="" inland="" waters="" formula.="" moreover,="" the="" nrdam/gle="" will="" undoubtedly="" be="" revised="" as="" a="" result="" of="" the="" public="" review="" and="" comment="" of="" the="" doi's="" rulemaking="" effort.="" therefore,="" once="" the="" nrdam/gle="" has="" been="" issued="" as="" a="" final="" rule,="" noaa="" will="" revise,="" as="" necessary,="" the="" inland="" waters="" compensation="" formula="" to="" reflect="" the="" final="" version="" of="" that="" computer="" model.="" because="" noaa's="" proposed="" rule="" may="" be="" published="" as="" a="" final="" rule="" before="" the="" nrdam/gle="" is="" promulgated="" as="" a="" final="" rule,="" noaa="" is="" considering="" three="" options:="" (1)="" publish="" the="" inland="" waters="" formula="" as="" a="" final="" rule,="" with="" the="" option="" to="" revise="" once="" the="" nrdam/gle="" is="" promulgated="" as="" a="" final="" rule;="" (2)="" publish="" the="" inland="" waters="" formula="" as="" an="" interim="" final="" rule,="" pending="" revision="" based="" upon="" the="" completion="" of="" the="" nrdam/gle;="" or="" (3)="" reserve="" the="" inland="" waters="" formula="" as="" a="" proposed="" rule="" pending="" the="" completion="" of="" the="" nrdam/="" gle,="" with="" the="" rest="" of="" the="" noaa="" rule="" being="" published="" as="" a="" final="" rule.="" noaa="" seeks="" comments="" on="" these="" options.="" for="" the="" purposes="" of="" the="" compensation="" formulas,="" residual="" and="" tidal="" currents="" are="" assumed="" to="" be="" zero,="" the="" discharge="" scenario="" is="" assumed="" to="" be="" instantaneous="" at="" the="" water="" surface,="" seasonal="" temperatures="" and="" wind="" speed="" are="" ``set="" at="" average="" values''="" for="" the="" scenario="" location="" as="" explained="" in="" volume="" i="" of="" the="" document,="" and="" wind="" direction="" is="" controlled="" to="" avoid="" having="" the="" discharge="" move="" into="" a="" different="" habitat.="" the="" oil="" products="" contained="" in="" the="" formulas="" are:="" heavy="" crude="" oil;="" light="" crude="" oil;="" no.="" 2="" fuel="" oil,="" diesel,="" and="" gasoline.="" however,="" there="" is="" a="" conversion="" table="" to="" determine="" which="" commonly="" discharged="" oil="" products="" correspond="" to="" the="" types="" of="" oils="" covered="" in="" the="" formulas.="" using="" the="" formula="" to="" use="" the="" formula,="" the="" trustee(s)="" must="" identify:="" (1)="" location="" of="" discharge="" to="" determine="" in="" which="" province="" the="" discharge="" occurred;="" (2)="" the="" habitat="" type="" that="" typifies="" the="" habitat="" affected="" by="" the="" discharge,="" as="" described="" in="" volume="" i="" of="" the="" document;="" (3)="" substance="" discharged;="" (4)="" amount="" discharged="" (the="" user="" may="" subtract="" from="" the="" discharge="" amount="" the="" volume="" of="" oil="" that="" is="" cleaned="" up="" in="" certain="" large="" river="" and="" large="" lakes="" specified="" in="" volume="" i="" of="" the="" document="" if="" the="" cleanup="" is="" from="" the="" water="" and="" conducted="" within="" 24="" hours="" of="" the="" discharge.="" cleanup="" from="" shorelines="" shall="" not="" be="" subtracted.="" also,="" the="" use="" of="" dispersants="" cannot="" be="" factored="" in="" since="" there="" likely="" will="" be="" additional="" effects="" in="" the="" water="" column="" as="" a="" result="" of="" using="" them.);="" and="" (5)="" season="" of="" discharge="" based="" upon="" date="" of="" discharge="" and="" the="" definitions="" of="" the="" seasons="" given="" in="" the="" proposed="" rule.="" determining="" damage="" figure="" for="" the="" purposes="" of="" valuing="" the="" effects="" of="" discharges,="" the="" inland="" waters="" compensation="" formula="" is="" based="" upon="" the="" probability="" of="" effects="" in="" particular="" province/habitat="" combinations="" from="" oil="" discharges="" through="" a="" range="" of="" discharge="" sizes.="" to="" determine="" the="" damage="" figure="" for="" a="" particular="" discharge,="" the="" trustee(s)="" would="" first="" locate="" the="" appropriate="" table="" in="" appendix="" a="" of="" the="" document="" based="" upon="" province="" and="" habitat="" type="" using="" the="" guidance="" in="" volume="" i="" of="" the="" ``compensation="" formula="" for="" natural="" resource="" damage="" assessments="" under="" opa:="" oil="" spills="" into="" inland="" (freshwater)="" waters.''="" the="" trustee(s)="" would="" then="" select="" from="" that="" table="" corresponding="" to="" the="" season="" of="" the="" discharge,="" the="" substance="" discharged,="" and="" the="" size="" of="" the="" discharge.="" the="" trustee(s)="" would="" then="" compute="" the="" dollar="" figure="" based="" on="" linear="" interpolation="" from="" the="" range="" of="" discharge="" sizes="" listed.="" to="" do="" this,="" the="" trustee(s)="" finds="" the="" ``m''="" figure="" and="" multiplies="" that="" figure="" by="" the="" number="" of="" gallons="" discharged.="" the="" trustee(s)="" then="" adds="" the="" ``b="" intercept''="" number="" to="" this="" first="" total="" to="" get="" the="" final="" damages="" figure.="" for="" example,="" a="" discharge="" of="" 6,000="" gallons="" of="" road="" oil="" would="" result="" in="" the="" following.="" the="" representative="" oil="" product="" for="" road="" oil="" is="" heavy="" crude.="" the="" season="" is="" spring="" and="" the="" province="" and="" habitat="" are="" represented="" by="" scenario="" n73,="" a="" pacific="" northwest="" stream.="" using="" the="" formula,="" m="2.18" and="" b="13969" for="" the="" range="" of="" discharges="" between="" 5,000="" and="" under="" 10,000="" gallons.="" the="" calculation="" is="" (6,000)(2.18)+13969="$27,049." a="" same="" size="" discharge="" of="" diesel="" in="" the="" summer="" would="" result="" in="" a="" calculation="" of:="" (6,000)(2.255)+16616="$30,146." volume="" iii="" of="" the="" document="" provides="" guidance="" to="" the="" trustee(s)="" in="" calculating="" losses="" due="" to="" beach="" and/or="" shoreline="" closure="" and="" boating="" closures.="" such="" losses="" would="" be="" in="" addition="" to="" the="" damage="" figure="" arrived="" through="" the="" formulas.="" the="" trustee(s)="" may="" also="" recover="" for="" lost="" recreational="" boating="" opportunities.="" volume="" iii="" of="" the="" document="" describes="" how="" the="" trustee(s)="" may="" estimate="" these="" losses.="" volume="" iii="" contains="" average="" figures="" for="" densities="" of="" boating="" trips="" for="" several="" types="" of="" lakes.="" these="" densities="" are="" given="" both="" for="" those="" lakes="" that="" provide="" year-round="" boating="" and="" for="" seasonal="" boating="" sites.="" volume="" iii="" of="" the="" document="" also="" has="" an="" analysis="" of="" various="" freshwater="" boating="" values="" that="" sets="" the="" average="" value="" of="" an="" inland="" boating="" day="" at="" $36.48.="" the="" trustee(s)="" can="" then="" use="" the="" densities="" and="" value="" given="" in="" volume="" iii,="" together="" with="" the="" area="" closed="" to="" boating="" to="" compute="" damages="" for="" the="" lost="" boating="" opportunities.="" the="" formula="" used="" to="" compute="" these="" damages="" is:="">2A2T2 ($36.48) where
V2=density (given in Volume III) of boating trips per square
kilometer per day, A2=area closed in square kilometers,
T2=time area was closed in days, and $36.48=the value per trip per
day.
Responses to Comments
Comment: NOAA received several comments concerning the average
costs of restoration. One commenter asked if it was currently possible
to accurately model the costs of restoration, particularly in Alaska.
One commenter asserted that NOAA should institute a comprehensive data
collection program to acquire sufficient baseline information. Only
then could NOAA implement reliable desktop assessment options in
Alaska. Were NOAA to pursue this course, data collection activities
should be concentrated in high risk areas, such as Cook Inlet and
Prince William Sound.
Another urged assessment procedures to be inexpensive but as
accurate as possible, and based on science. Another commenter asserted
that multiple assessment costs should only be compensable up to the
reasonable cost of a single assessment.
Response: NOAA agrees that economical and accurate scientific
assessment procedures are in the best interest of every party. In
determining the ``average'' costs of restoration for the compensation
formula, an extensive research study was conducted of information
concerning restoration of natural resources in several environments,
including Alaska (See ``Compensation Formula for Natural Resource
Damage Assessments under OPA: Oil Spills into Estuarine and Marine
Environments, Volumes I-IV'' and ``Compensation Formula for Natural
Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters, Volumes I-III''). This information was factored
into the formula in order to reflect the best available information to
date. Of course, all simplified assessments are based upon average
conditions. If the trustee(s) decides that the use of the formulas does
not adequately address the specific circumstances surrounding a
particular discharge, another assessment procedure should be used.
Concerning the reasonable costs of assessments, costs of parallel
assessments are allowed, provided the separate assessments do not
result in double recovery.
Comment: Some commenters were concerned that traditional
comprehensive damage assessment techniques would be inefficient for
small discharges. One commenter recommended an established de minimis
discharge volume that would not lead to a recovery of damages.
Response: The proposed rule provides guidance and criteria for the
trustee(s) to determine the appropriate procedures for a particular
discharge. The decision to proceed with a claim is left to the
discretion of the trustee(s) based upon the information and data
collected through the Preassessment Phase. NOAA's proposed rule does
not adopt the use of a rigid de minimis standard to excuse liability.
OPA addresses the effect and not the nature of a discharge--the
characteristics of a particular environment may render it vulnerable to
even a small discharge of oil. The range of assessment procedures
available to the trustee(s) should ensure that an appropriate type of
assessment will be conducted. NOAA's proposed rule does provide,
however, that the compensation formula is appropriate for determining
damages for discharges of ten or more gallons, up to 50,000 gallons.
Comment: NOAA received several comments recommending specific
factors to include in the simplified assessments, such as season and
location of the discharge, and wind and surface currents present at the
time of the discharge.
Response: NOAA agrees that the inclusion of these factors is
helpful in the assessment. These types of variables are accounted for
in the Type A model. In the compensation formula, wind and surface
currents are predetermined to maintain the scenario of a ``small''
discharge.
Comment: A number of commenters challenged the use of computer
models and compensation tables for damage assessment. One commenter was
opposed to these methods because of insufficient data. Another
commenter speculated that trustees would not use the models for fear of
the passive use valuations being challenged.
Response: NOAA believes that the computer model and compensation
formulas provide a reasonable means for conducting rapid and economical
damage assessments. Based upon extensive review of available
literature, NOAA believes that the data collected for the formula are
sufficient to make a reasonable determination of damages. If the
trustee(s) determines that there are insufficient data for an
appropriate assessment based on the model, an incident-specific
analysis may be appropriate, such as an EDA or CDA. The compensation
formula does not include passive use values at this time. Discharges
that are likely to have resulted in significant reduction for passive
use values should be assessed through a CDA, and possibly an EDA.
Comment: Several commenters supported the development of
compensation tables for the assessment of small discharges. Some
conceded that the tables were in some instances less accurate than
incident-specific assessments but were justified by their cost
effectiveness.
Response: NOAA agrees. Not only is the reduced cost a factor, but
there is a more predictable outcome following a discharge and the
trustee(s) and the RP(s) are able to focus on the actual restoration or
acquisition of the equivalent resources as soon as possible.
Comment: One commenter questioned the reliability of desktop models
that require highly technical, current environmental information that
is not always available. Another commenter agreed and stressed that
such assessment methods must meet clearly defined criteria of
scientific validity. One commenter noted that, although compiling
scientific information would be cumbersome at first, trustees would
come to appreciate the efficiencies of the structured tables that would
facilitate expedited settlements.
Response: NOAA concurs that desktop models are most effective when
the averages that are produced reflect the most current and detailed
information available. For regions where little data are known,
however, models are still capable of producing reasonable estimates.
Although the proposed rule only requires revision of the rule every
five years, the computer model and formulas will be the subject of
continuing evaluation. As new scientific literature becomes available
which enables further refinements to the models by DOI, NOAA will
evaluate whether revisions to the formulas are appropriate in advance
of the five-year requirement.
Comment: One commenter charged that tables and models are based on
statistical averages and by their nature cannot produce values that are
reasonably related to actual costs. As such, they are not authorized by
OPA. However, the commenter continued to state that small discharges
with limited effects may not call for a Comprehensive Damage Assessment
(CDA).
Response: NOAA believes that the development of formulas and models
is within the scope of its authority under OPA. Although based on
statistical averages, the values do reasonably assess restoration/
replacement costs and are therefore authorized by OPA. The computer
models and compensation formulas are appropriate for small discharges
of limited effect where a comprehensive damage assessment may be
impracticable.
Comment: One commenter noted that restoration is a new and rapidly
changing field where there are few case studies from which to draw
information and calculate damages. Therefore, restoration costs may
have to be determined on a case-by-case basis.
Response: NOAA agrees with this statement when the trustee(s) is
conducting either an EDA or CDA.
Comment: One commenter recommended that NOAA's proposed regulations
should address only the framework for comprehensive and expedited
damage assessments, especially where OPA, unlike CERCLA, does not
specifically call for the preparation of regulations for simplified
assessment methods. Further, the feasibility of simplified assessment
procedures should be explored in the context of a negotiated
rulemaking, comprised of representatives from industry, insurers,
environmental groups and other trustees.
Response: NOAA disagrees with the notion that OPA limits this
rulemaking to EDA or CDA procedures. Simplified assessments provide an
opportunity for quick recoveries and therefore lower transaction costs
to both the trustee(s) and the RP(s). The use of negotiated rulemaking
for development of the compensation formula was considered to be very
time consuming, expensive, and potentially resulting in damages based
more upon compromise than restoration costs and compensable values.
Comment: One commenter noted that areas that are presently
``biologically degraded'' will be retarded in the recovery following a
discharge. NOAA's suggestion that the compensation table could be used
where there may be difficulty in ascertaining precise injury, seems to
equate difficulty with insignificance. This approach will encourage the
trustee(s) to use a cookbook approach rather than a fact-based
assessment.
Response: In the selection of the appropriate assessment
procedures, the trustee(s), at the time following the discharge, will
be in the best position to determine the most appropriate procedure for
the discharge conditions.
Comment: Two commenters expressed concern that tables may under-
value resources in industrialized or biologically degraded areas.
Another commenter particularly noted that any table should fully value
urban resources. One commenter felt that NOAA is being optimistic in
that the tables can cover many issues.
Response: The Estuarine and Marine Environments Compensation
Formula is based upon 55 representative province/habitat combinations,
ranging from Northern Maine to the Alaska Coast, the Hawaiian and
Pacific Islands. Since the compensation formula is based upon averages,
it is impossible to include all known coastal habitats and every
combination of discharges. However, several industrialized areas are
specifically represented, i.e., Boston Harbor, New York Harbor, Mobile
Bay, etc.
The Inland (Freshwater) Waters Compensation Formula is based upon
100 representative province/habitat combinations representing the Great
Lakes and other inland waters by type, i.e., river, lake, fast flowing
stream, etc.
By comparing the habitat of the actual discharge with the province
and specific habitat used to estimate the damages in the formula, the
trustee(s) should, in most cases, find the most applicable scenario.
NOAA emphasizes that the primary advantages of a compensation formula
are for simplicity and cost-effectiveness. In addition, any time a
simplified assessment is used, it is unlikely that the exact
circumstances of an actual discharge will be represented, only
approximated. In cases where the circumstances of an actual discharge
are determined to be far out of the bounds of the compensation formula,
the trustee(s) should consider the use of another assessment procedure,
i.e., EDA or CDA.
Comment: One commenter suggested using tables in small discharges
to establish base damages, and conducting more incident-specific
assessments for larger discharges or sensitive areas. Others indicated
that tables would be too simplistic and have limited value.
Response: The compensation formula is specifically designed for use
in most discharges of under 50,000 gallons. It is likely that
discharges over 50,000 gallons would result in injuries that would be
more appropriately addressed by another assessment procedure. Again,
the trustee(s) will determine if a specific discharge may be
appropriately assessed by the compensation formula. It is well within
NOAA's statutory authority to include compensation formulas with the
proposed rule.
Comment: One commenter was concerned with the formulas that give no
credit for responsible cleanup. Another commenter cited that no
adjustment is made for short-term versus long-term injuries. This
commenter also stated that there is no difference for companies that
take remedial action to clean up or reduce injuries of a discharge. The
commenter stated that the lack of these adjustments is a disincentive
to RPs. Others indicated that the tables should be based upon the
assumption that the total cargo was discharged, requiring the RP to
produce evidence to the contrary.
Response: The formulas introduced in this proposed rule provide
that the gallon amount used is the estimated amount of oil left in the
water environment 24 hours after the onset of the discharge. Hence, if
oil is immediately contained and cleaned up, the ten gallon threshold
of the compensation formula may not be reached. Discharges of highly
volatile oil products may result in significant negative injuries to
the environment, even if cleaned up within 24 hours. Such discharges
would be more appropriately assessed using another assessment
procedure. This should provide a significant incentive for RP(s) to
begin immediate cleanup and yet allow for the assessment of injuries
resulting from the actual discharge. Discharges that may result in
long-term injuries may be more appropriately assessed through the use
of another assessment procedure. NOAA is confident that the lead
response agency and the RP(s) can and will identify the amount of oil
discharged to a degree of confidence necessary to conduct a damage
assessment, either through the formulas or other assessment procedure.
Comment: Some commenters stated formulas should not be based simply
on mortality counts or gallons discharged. Yet another stated that, if
a dollar per gallon formula is used, NOAA should consider toxicity of
discharged oil as well as persistence. Another indicated that any
compensation formula based on destroyed flora or fauna ignores the rate
of natural replenishment. This commenter also stated that damages
should not be based on artificial valuation of ``commercially valueless
creatures.''
Response: The compensation formulas introduced in the proposed rule
are based upon gallons discharged, restoration costs (where
appropriate), restocking costs, and average direct use values of the
affected resources. Restoration costs are only included when the
scenario is one in which anticipated habitat restoration efforts would
have lessened the overall damage figure, i.e., done more good than
harm. Since the formula represents small discharges few scenarios
resulted in habitat restoration costs. However, restocking costs of
fish, shellfish, and wildlife are included when it is expected that
there would be a loss of those resources. Restocking costs and direct
use values could only be calculated for resources that had a current
value that could be determined.
In addition, the formulas provide for five different representative
types of oil: (1) Heavy crude; (2) light crude; (3) No. 2 fuel oil; (4)
diesel oil; and (5) gasoline. If the oil discharged is not one of those
types of oil, the trustee(s) is given guidance on which representative
oil is the closest to the type of oil discharged. The data used to
develop the formula recognize the different toxicity properties of each
representative oil.
Comment: Some commenters strongly objected to the inclusion of
passive use values in simplified assessments. One noted that passive
use values are ``particularly ill-suited'' in the context of small
discharges, but NOAA should not rule them out for those discharges. The
model or table will not capture passive use losses well, but NOAA
should continue to explore inclusion of them in such a table or model
as the number of passive use value studies is rapidly increasing.
Response: Through a lengthy, deliberative, and exhausting process
for the review of contingent valuation, NOAA has determined that the
formulas in the proposed rule will not include passive use values. In
addition, the formulas are designed for small discharges that would
generally not have a significant effect upon passive use values. Small
discharges likely to have a significant effect upon passive use values,
as determined by the trustee(s), should be assessed through a different
procedure.
NOAA is considering how passive use values might be included in the
compensation formulas and is requesting comments on this issue.
Comment: One commenter stated that use of a compensation table
would avoid the cost of performing an assessment and represent a
savings to the RP. The commenter stated the RP should not have the
ability to challenge a table by using ``real data.'' However, some
collection of ``real data'' between the RP(s) and trustee(s) should be
allowed. RP-collected data should not be admissible in court, unless
submitted to the trustee(s) as a part of the administrative record.
Response: One of the advantages of using the compensation formula
is the reduced cost. However, the proposed rule specifically allows the
RP(s) to request a more comprehensive damage assessment, provided those
costs are borne up front by the RP(s). Where the trustee(s) and the
RP(s) determine it necessary to collect additional data, another
assessment procedure can be used. As outlined in this proposed rule,
all data to be considered in the restoration process must be submitted
to the administrative record. Once the formulas are final, including
possible judicial review, NOAA believes that the bases of the formulas
will no longer be subject to challenge, although the trustee(s) may be
challenged concerning the data inputs, i.e., size of discharge, type of
oil, etc. To avoid unnecessary litigation, NOAA encourages the RP(s)
and the trustee(s) to enter into enforceable agreements to use the
formulas to determine the appropriate damages.
Comment: One commenter stated that any compensation formulas or
computer modeling must include a continuous ``reality check'' of
observed effects and results for assessment awards. Another commenter
took the opposite view, favoring compensation tables only if they are
not subject to unilateral ``reality checks.''
Response: NOAA believes that the proposed compensation formulas
represent the best available information at the time of compilation in
terms of the fate and effect of oil, the likely biological effects, and
the average restoration costs and direct use values, for a variety of
discharges. As stated earlier, if the circumstances of an actual
discharge are significantly out of the parameters of the formulas, an
alternative assessment procedure should be used. Again, any simplified
assessment procedure will not mirror reality in every single discharge.
The proposed rule does provide, however, for NOAA to review the
procedures every five years. This will allow the formulas to be kept
current on biological, toxicological, and valuation information.
Comment: One commenter stated that formulas should not be used as
an assessment tool. Another cited a compensation formula as a theory of
``liquidated damages'' or ``worker's compensation'' recovery, being
contrary to the statutory injunctions of OPA. Also cited was the Zoe
Colocotroni case as discrediting compensation formulas.
Response: NOAA disagrees that compensation formulas are not
appropriate as assessment tools, provided the formulas are based upon
the measure of damages required by OPA. These include: The costs of
restoring, rehabilitating, replacing, or acquiring the equivalent of
the damaged resources; the diminution of value; plus the reasonable
costs of conducting the assessment. The proposed formula is based upon
that premise, although it is likely that costs of conducting the
assessment will be very low. As stated throughout the proposed rule,
the formula is one of four procedures available to the trustee(s). If
the particular circumstances of the discharge are beyond the scope of
the formula, another procedure should be used.
Comment: One commenter recommended that any simplified damage
assessment technique be based on the equation that: Total Damages =
Cost of Restoration + Diminution of Value of the Resource Pending
Restoration + Cost of Conducting the Assessment.
Response: NOAA agrees that a simplified damage assessment procedure
based on such an equation satisfies the criteria of being simple,
accurate, reliable, and understandable and is in accordance with OPA.
Type A Model
Subpart E Preamble
NOAA is proposing that a natural resource trustee(s) may use the
Natural Resource Damage Assessment Model for Coastal and Marine
Environments (NRDAM/CME), Version 1.2, known as the Type A model,
developed by the U.S. Department of the Interior (DOI), for damage
assessments under OPA. The Type A model is described at 43 CFR Part 11,
subpart D. The Type A model may be used when the conditions of the
discharge are sufficiently similar to the conditions of 43 CFR 11.33(b)
to make the Type A model a useful method for the discharge of concern.
The trustee(s) shall publish the DARP stating the intent to use the
NRDAM/CME and identifying the inputs to be used in that application.
The public will have thirty calendar days in which to comment on the
use of the NRDAM/CME. If the trustee(s) has set out, as part of
prespill planning, the circumstances under which the NRDAM/CME would be
used and a different process for public input in that use, the process
identified in the prespill plan may be used, subject to the provisions
for prespill planning in Sec. 990.16 of this part.
It is likely that NOAA will also recommend the new set of computer
models being developed by DOI for use in estimating damages for
injuries to natural resources resulting from relatively minor
discharges of oil. The current computer model for use in coastal and
marine environments is being revised by DOI to comply with the court's
decision in Colorado v. DOI and as part of the statutorily-mandated
review and update. The court in Colorado v. DOI, held that natural
resource damage assessments should be based upon costs to restore,
replace, rehabilitate, or acquire the equivalent of the injured
resources, plus the diminution of all reliably calculated compensable
values pending recovery. The current model is still in effect pending
those revisions. DOI is also developing a second computer model for use
in the Great Lakes and their connecting channels.
These computer models use the same basic approach to estimating
damages. Each model is composed of several major components modeling
the physical and chemical fate of the substance discharged, spread of
the substance throughout the environment, the present and future
biological effects of the discharge, the restoration approach and its
costs where appropriate, and the value of natural resources and
services lost pending recovery.
These new computer models, are under development through DOI, but
are not yet available for public review. NOAA is working closely with
DOI in its development of these computer models. Based upon an initial
evaluation of these models, it is likely that NOAA will recommend that
they are available procedures that the trustee(s) may choose to use
under OPA.
Response to Comments
``Use of Computer Models''
Comment: Several commenters noted that simplified procedures are
most applicable for small discharges that would otherwise not be
addressed because the cost of conducting an assessment might be greater
than the ultimate recovery. Commenters noted that the use of simplified
procedures would be less costly to the trustee(s) as well as the RP(s),
and will result in more timely recoveries.
Response: NOAA agrees that a major advantage of a simplified
assessment procedure like a computer model would allow for more timely
and cost-effective assessments for a majority of oil discharges.
Comment: Concerning the use of a computer model, commenters
indicated that it would more accurately evaluate variables than a
simplistic formula. Models incorporating a number of key variables
could be a useful assessment tool and provide a cost-effective,
reliable, and rapid assessment.
Response: NOAA agrees that a computer model that allows a large
range of variables to be considered in a standardized fashion is a
valuable assessment tool.
Comment: Several commenters indicated that a computer model must be
based upon an accurate estimate of restoration costs and that such
costs must bear a reliable relationship both to actual injuries to
natural resources as a result of the discharge and restoration actions.
Response: NOAA agrees that a computer model would look at the most
appropriate type of restoration action typically considered for the
type of incident being modelled. This action would be based on the
average types of expected injuries. The model would then calculate the
average, regional costs of carrying out such an action.
Comment: Several commenters expressed concern about the use of a
model because of the possibility that it would underestimate the
damages. Commenters in this category, therefore, argued for the
inclusion of passive use values. According to these commenters, even if
the resource does recover, there will be some diminution in value over
the recovery period. Similarly, passive use values may remain impaired/
diminished until recovery.
Other commenters, however, argued that the factors taken into
account by a model should be limited. Since OPA is compensatory and not
punitive, a model should not incorporate values that may be difficult
to measure. Accordingly, these commenters would not allow the use of
any passive use values. Also, one commenter stated a model would be
improper for large values.
Response: NOAA points out that the court's direction in the Ohio
and Colorado decisions was to include in all types of assessments all
reliably calculated values. Therefore, to the extent possible, these
values would be included in a computer model.
Comment: One commenter stated that, where multiple trustees are
involved in one discharge, the RP is unlikely to agree to a damage
figure derived from a computer model or compensation table until all
the trustees agree that the resulting damage figure is the sole measure
of damages for all injuries. Otherwise, the commenter noted that the RP
would be faced with paying damages to satisfy the computer model or
table figure while still facing claims for specific restoration
projects, all resulting from the same discharge.
Response: NOAA notes that the danger of double recovery can be
avoided by the RP(s) scrutinizing a natural resource and/or injury upon
which damage claims are made by several trustees. Such review would
show whether the same resource injury is being claimed by the various
trustees.
Comment: Some commenters suggested NOAA develop and propose a
similar computer model for rivers, streams, lakes, and interior
wetlands.
Response: NOAA is currently developing the inland compensation
formula for relatively minor discharges in inland waters (see
discussion elsewhere in this preamble). DOI is also investigating
possible additional damage assessment methods for use as inland Type A
procedures. NOAA will work with DOI in this effort to the extent
possible.
``DOI's Type A Model''
Comment: Several commenters stated that the revised Type A model,
under development by DOI, must contain more accurate data than the
current Type A model. It should be area specific and reflect the actual
species densities and distributions, as well as variations in those
distributions and densities. The commenter noted that entire coastlines
should not be classified within the model as one biologically
homogenous unit. Some commenters identified factors that the table or
model should take into account. These factors include: The scarcity of
a resource or the presence of a critical species in a given area;
seasonal differences; the size of the discharge; and the cumulative
effects of small discharges over time. In addition, the data should be
periodically updated.
Response: NOAA notes that DOI is updating the data considered in
the Type A model and collecting all available information. As for
including such things as regional or local information on species
densities and distributions, NOAA is helping to gather such data, but
notes that such detailed information is only available for certain
well-studied areas that represent a relatively small portion of the
entire coastal and marine environments of the United States and its
territories.
Comment: Some commenters noted that the original Type A model
severely underestimated damages in its use of a flawed economic
valuation and that the damages should be significant enough to act as a
deterrent.
Response: The court in Colorado v. DOI instructed DOI to include in
the Type A models, damages based upon costs to restore, replace,
rehabilitate, or acquire the equivalent of the injured resource, plus
the diminution of all reliably calculated direct use and passive use
values pending the recovery of the injured natural resources and their
services. DOI has stated that the Type A models will incorporate these
components of the damages to the extent practicable. The Type A models
are compensatory, not punitive, so they are not intended to serve as
deterrents.
Comment: One commenter stated that the model should provide for
frequent information updating, and should require public input in the
process.
Response: NOAA agrees that the Type A model should be periodically
updated through a public review and comment process. In fact, section
301(c) of CERCLA requires a review and revision, as appropriate, every
two years. DOI is currently conducting such a revision of the Type A
model for coastal and marine environments, along with the Colorado
court's suggested revisions.
Expedited Damage Assessment
Subpart F Preamble
General
Purpose/Scope
Included in the range of proposed damage assessment procedures is
the expedited damage assessment (EDA). EDA reflects a damage assessment
approach that is intermediate between the current Type A model and
proposed CDA procedures. This approach recognizes that the trustee(s)
may want to address more effects than currently available in the Type A
model or proposed compensation formula, particularly for inland
discharges. The approach also recognizes that the size, location, and
timing of a given discharge may not warrant the broad, extensive
procedures associated with a CDA. An EDA encompasses a variety of
methods that permit the trustee(s) to determine and quantify injury
based on limited, focused studies. The trustee(s) is accorded
considerable discretion in determining which methods are the most
suitable for a given EDA. Accordingly, the EDA should be viewed as a
dynamic process rather than a rigid, step-by-step approach.
The goal of an EDA is to initiate restoration as quickly as
possible. This goal can be achieved by truncating the injury
determination and quantification process. Using limited, focused
studies, the trustee(s) may determine and quantify injury in one of two
general approaches. First, the trustee(s) may supplement the Type A
model with additional injury or compensable value studies for those
natural resources and/or services not specifically included in the
model's assumptions. Second, the trustee(s) may undertake an attenuated
CDA. The latter approach involves the trustee(s) selecting only certain
key resources and/or services that warrant injury assessment and
conducting focused studies to quantify injuries to determine the
restoration approach and compensable values. The proposed rule
encourages the trustee(s) to begin initial restoration planning early
in the assessment/restoration process in order to focus efforts on
developing a restoration approach. These early restoration
alternatives, however, may be modified as the injury determination and
quantification data is refined.
The EDA process allows the trustee(s) to exercise his best
professional judgment to narrow the scope of studies conducted during
the Assessment/Restoration Phase to a few key natural resources and/or
services. To help select the appropriate resources for inclusion, the
proposed rule recommends that the trustee(s) focus on those natural
resources and/or services that are of commercial, recreational or
ecological importance, or of special significance. The trustee(s) may
determine, for example, that studies focusing only on one, or few
resources (i.e., murres or wetlands), will produce a restoration
approach sufficient to restore the affected resources and/or services.
The proposed rule also provides guidance for focusing the injury
determination and quantification components.
In examining the relationship of the EDA with the other proposed
assessment procedures, it is helpful to think in terms of what EDA is
not. Large or unusually destructive discharges may require a broad
suite of extensive studies over a multi-year period to determine the
nature and extent of the injuries to natural resources and/or services
and calculate compensable values. While it is important to have a
comprehensive damage assessment option, NOAA believes that most
assessments will not require an extensive, often litigation-driven,
approach. Through this proposed rule, NOAA has interpreted Congress'
apparent desire to spend less time rediscovering that a discharge is
harmful to the environment, and focus more efforts on restoration
measures. EDA provides a vehicle for that purpose.
Finally, the proposed rule provides that the trustee(s) should
complete the natural resource and/or service injury determination/
quantification process and develop a restoration approach within two
years from the date of the discharge, where possible. This time-frame
is not required, but an assessment taking longer to reach this point is
not expedited.
Guidance in Selecting the EDA Approach
In evaluating whether an EDA is appropriate for a given discharge,
the trustee(s) should take into account the guidance provided by the
proposed rule. This guidance is not intended to be rigidly applied.
Rather, the trustee(s) should exercise best professional judgment in
evaluating the usefulness of this guidance for any given discharge.
Near the close of the Preassessment Phase, the trustee(s) will
examine the information regarding the discharge in light of the
guidance and decide whether to select the EDA approach or another
assessment procedure. In all cases, this decision is reserved for the
trustee(s). See discussion earlier in this preamble.
The Expedited Damage Assessment Approach
EDA Objectives: The steps involved in the EDA or CDA damage
assessment are similar. The scope of effort associated with each step,
however, differs considerably between the two procedures.
The objectives of an EDA are to: (1) Expeditiously determine and
quantify injuries to selected natural resources and/or services
resulting from a discharge using limited, focused studies and baseline
or reference/control information, and (2) provide the basis for
restoration and recovery of natural resources and/or services. To
achieve these objectives, the EDA procedure consists of: (1) Injury
determination; (2) injury quantification; (3) restoration component;
and (4) compensable values determination.
Injury Determination
General
Injury resulting from (or caused by) the discharge of oil has been
determined when the trustee(s) has demonstrated that: (1) With direct
exposure, (a) the natural resource was exposed; (b) there is a pathway
between the discharge and exposed natural resource; and (c) the
exposure of oil, its components, or by-products has been shown by
rigorous and appropriate scientific methodology to have an adverse
effect on the natural resource in laboratory experiments or the field;
or (2) in the absence of direct exposure, (a) the adverse effect on or
impaired/diminished use of a natural resource has been shown by
rigorous and appropriate scientific methodology; and (b) the adverse
effect on or impaired/diminished use of the natural resource would not
have occurred but for the fact of the discharge or threat of a
discharge. The trustee(s) should establish baseline or reference/
control conditions from which changes in environmental and biological
parameters may be measured.
Contributing Factor: Where multiple factors may have contributed to
an indivisible injury to a natural resource and/or service, the
discharge of oil may be considered a contributing factor to the injury.
Exposure
Once the discharge of oil has been documented, the next step
involves either confirmation of exposure or threat of exposure to the
natural resources to the oil. Confirmation and exposure entails
determining the amount of product discharged into the environment.
Initial estimates developed in the Preassessment Phase should now be
verified or modified as appropriate. Where practicable, the trustee(s)
should rely on figures developed by the On-Scene Coordinator (OSC) and
request continual updates. The OSC may also be requested to provide a
final estimate of the amount discharged, recovered, or removed. The
trustee(s), however, may conduct additional surveys to determine the
amount of oil discharged into the environment, should the figures
provided by the OSC prove insufficient.
Using field data collected thus far, the next step should be to
identify exposure pathways. Field data that may help the trustee(s)
accomplish this step include documentation of the areal extent of the
oil and collection of water samples along the oil contamination
gradient. The trustee(s) may rely on models, in conjunction with
limited field data, to document exposure pathways. These models should
be relatively simple and acceptable to the scientific and regulatory
community. The trustee(s) should confirm that natural resources were in
fact exposed to oil.
Where the injury is an indirect adverse effect or impaired/
diminished use, the trustee(s) should begin to document the nature and
extent of such injury. An example of impaired/diminished use is where a
recreational beach is closed in anticipation of oiling. An example of
an indirect adverse effect is where exposure to oil has resulted in the
reduction or elimination of food chain resources thereby resulting in
starvation of a higher trophic level resource (e.g., birds). If such
injuries are readily quantifiable, studies that document the injury are
appropriate for an EDA. Determination of impaired/dimished use or
adverse effects is addressed in the section entitled Injury
Determination: Scope of Injuries.
Identify Natural Resources: The trustee(s) should identify those
natural resources for which injury determination and quantification
will be conducted. Eligible natural resources will include those which
are of commercial, recreational, ecological importance, or of special
significance.
Initiate Early Restoration Planning: At this point in the process,
the trustee(s) should initiate early restoration planning. To
supplement the information on restoration provided in this section, the
trustee(s) should refer to the restoration discussion in subpart G of
the preamble, in the proposed rule, and the Restoration Guidance
Document.
The trustee(s) should develop a restoration scoping statement to
focus the planning process. The scoping statement should identify those
restoration alternatives that the trustee(s) may consider to remedy
discharge effects, including source control and remediation where
appropriate. The ``natural recovery'' alternative should be
specifically addressed. In addition, the trustee(s) may consider
acquisition of the equivalent natural resources as an alternative, but
only in light of OPA's preference for the other alternatives. The
scoping statement will rely on information derived from the
Preassessment Phase and exposure determination, and may be developed
along a roughly parallel time line as the DARP. (See preamble
discussion of the DARP in subpart C.)
Scope of Injuries
The scope of injuries in an EDA are limited relative to a CDA.
Injuries to natural resources and/or services that may be appropriate
for an EDA include, but are not limited to, mortality, and sublethal
effects that are relatively easy to document. Categories of injury that
meet the acceptance criteria in Sec. 990.71(e) of the proposed rule and
are appropriate for an EDA are currently being developed.
With respect to fish and wildlife resources, the trustee(s) should
estimate direct mortality using body counts in the affected areas in
accordance with standard field procedures (such as the ``fish-kill''
investigation methods described by the American Fisheries Society).
(See Part II (Fish-Kill Counting Guidelines) of ``Monetary Values of
Freshwater Fish and Fish-Kill Counting Guidelines,'' American Fisheries
Society Special Publication Number 13, 1992.) The trustee(s) should
correct the estimates using established procedures in the literature
along with ``off-the-shelf'' models. Published water and sediment
toxicity data can be used in the models. In addition, toxicity tests
may be conducted on the discharged oil to provide specific information
for the model on the effects of the discharged oil at the estimated
concentrations on the species and life stages of concern. The toxicity
tests, however, should be time- and cost-effective. Mortality may also
be determined by baseline and reference/control comparisons.
Mortality estimates may be less applicable to vegetation associated
with natural resource habitats. Oiled vegetation may suffer
considerable sublethal injury including, but not limited to, reduction
in growth rates, loss of above-ground biomass, and reproductive
impairment. These injuries, especially the loss of plant biomass, may
result in changes in species diversity and abundance utilizing the
habitat. Nevertheless, chronic contamination or a severe discharge may
result in direct mortality. The trustee(s) may need to undertake
limited surveys to verify early vegetative mortality, as well as
mortality likely with time.
As mentioned earlier, mortality resulting from a discharge may also
be indirect. The trustee(s) may include indirect mortality in the
injury focus provided there is baseline information documenting such
injury or the indirect mortality can be determined with limited,
focused studies. Measures of indirect mortality include, but are not
limited to, starvation; failure to nest; hatching failure; and loss of
critical habitat.
Sublethal effects as measures of injury should be carefully
selected in an EDA. Only those that can be determined using limited,
focused studies and that are expected to result in quantifiable
injuries should be included. Sublethal effects that may meet these
requirements include, but are not limited to, impairment of growth,
reproduction, development and behavior.
The trustee(s) should also consider injuries to services. The first
step in determining injury to the services is to inventory the services
provided by a natural resource prior to discharge and identify those
services affected or expected to be affected by the discharge. Services
commonly affected by a discharge of oil to the natural environment
include recreational, commercial, ecological, and those of special
significance as defined earlier in this proposed rule. Recreational
services provided by natural systems include, but are not limited to,
provision of recreational fishing, boating, boat mooring, bathing,
beach use, wildlife viewing, sightseeing, and hunting opportunities.
Commercial services include finfish and shellfish harvest, as well as
marine transportation, marine development, and industrial and municipal
water use. Commercial services differ from recreational, ecological,
and passive use services in that some parties other than the trustee(s)
(e.g., commercial fishermen) may make claims related to the diminution
of value. Therefore, the potential for overlap between the
trustee's(s') and a private claim should be carefully considered.
Typical ecological services (i.e., biological diversity, habitat
protection, food chain transfer, contaminant control/ assimilation,
water quality/quantity aesthetics) could include wetland functions,
such as water quality enhancement, waterfowl nesting sites, and estuary
functions, such as provision of nurseries for fin and shellfish or
habitat to endangered or threatened species. Services provided by
resources of special significance include, but are not limited to,
subsistence fishing, education, scientific and cultural research.
Not all services inventoried will suffer injury or a reduction in
their flow. The trustee(s), therefore, must identify those services to
be addressed by the EDA. For example, wetlands provide a range of
services including, but not limited to flood control, fish nurseries,
and recreational opportunities. A discharge that results in oiling of
above ground wetland vegetation may leave the roots intact, therefore
leaving the flood control service unaffected. The oiling of the
emergent vegetation, however, could substantially reduce the bird
viewing opportunities. The trustee(s) should include in the EDA only
those services that have actually been interrupted or lost.
Injury Quantification
General
The trustee(s) should quantify injuries to natural resources and/or
services identified through injury determination. Based on the services
identified as interrupted or lost, the trustee(s) should select a
subset of this list for detailed analysis. The trustee(s) should
determine the duration of lost or diminished services. This is
accomplished by comparing the level of baseline or reference services
(i.e., the conditions as they existed prior or adjacent to the
discharge and would have continued to exist in the future but for the
discharge) to the level of services after the discharge. In some cases,
baseline or reference service flow estimates may not be available. For
example, state and federal agencies may not maintain data on commercial
fish catch at the level of detail required for economic damage
assessment. Where critical information is lacking, the trustee(s) must
decide whether to: (1) Continue with the EDA in the absence of the
compensable value estimate for the given service flow; or (2)
reconsider the appropriateness of the EDA approach, given the magnitude
or importance of the service flow in question.
Develop Restoration Component
The trustee(s) should develop the restoration component of the DARP
at this phase in the process. The restoration component should include
an analysis of restoration alternatives and the preferred restoration
approach for each injured resource or service. The trustee(s) should
refer to subpart G for a full discussion on the restoration component
of the DARP.
Compensable Values Component
The compensable values component for an EDA contains the study
design to estimate the values of the lost services. In this part of the
EDA, the trustee(s) will consider the interim lost services associated
with the restoration component and identify available methodologies for
estimating these values.
While an EDA does not necessarily preclude large-scale original
studies such as a site-specific travel cost model, economic assessment
of lost values should be accomplished by limited, focused efforts where
possible. The EDA, therefore, may rely on simplified valuation models
or the applications of benefits transfer. As discussed here and in the
``Compensable Values'' section of the preamble accompanying subpart G,
a wide range of methods exist for estimating lost resource values.
Applicability of market valuation techniques will depend on site-
specific factors, such as the types of services affected and data
availability. Important and commonly-applied approaches include: Market
price and appraisal value; travel cost models; random utility models,
and hedonic property valuation models. The trustee(s) may determine
that economic methods currently do not exist to estimate the damages
resulting from the loss or reduction in one or more of the important
service flow categories. Where the trustee(s) anticipates that
implementing a particular technique will exceed a reasonable time to
accomplish an EDA or will result in implementation costs that are
unreasonable relative to the expected level of damages, the trustee(s)
should consider selecting another damage assessment technique. Factors
influencing this decision will include increase in the precision of the
damage assessment, and the time and budget required to complete such
research.
Once the extent of the lost services has been estimated, economic
values must be assigned to these services to estimate the compensable
values. For some categories of economic damage, it will be possible to
conduct site-specific analyses. For example, the damages associated
with the closure of a marine transportation corridor will, in most
instances, be estimated using site-specific data. In other cases, the
trustee(s) will apply estimates, equations, models, or data from
existing valuation studies, through the use of benefits transfer.
Benefits transfer may be used where the trustee(s) determines that
benefit estimates are available to support a defensible benefits
transfer (see discussion of benefits transfer in the preamble
discussion of valuation methodologies). If such estimates do not exist,
the trustee(s) may undertake a cost-effective study at the site.
The EDA procedure is a new concept, that is designed to facilitate
the damage assessment process for a large number of discharges. It
represents a hybrid approach that entails either supplementing the Type
A model with limited, focused studies, or studying key natural
resources and/or services for which limited, focused studies will be
undertaken. NOAA wishes to solicit comments regarding the scope and
applicability of the EDA.
Response to Comments
Comment: NOAA received comments supporting the use of an Expedited
Damage Assessment (EDA) procedure so long as it could make accurate
estimates and meet, in an expedited way, other natural resource damage
assessment criteria.
Response: The proposed rule provides for an EDA in this subpart and
meets those criteria.
Comprehensive Damage Assessment
Subpart G Preamble
General
Purpose/Scope
The Comprehensive Damage Assessment (CDA) is the most detailed of
the assessment procedures available to the trustee(s). The purposes of
a CDA are to: (1) Comprehensively determine the nature and extent of
injury to natural resources and/or services; (2) develop a restoration
plan to remedy that injury; and (3) determine the total compensable
values for discharges requiring a complex, prolonged assessment/
restoration process as deemed necessary by the trustee(s). Since there
is no single CDA approach appropriate for every discharge, the
trustee(s) must tailor each CDA to the specific oil discharge
circumstances.
A CDA consists of four components, including Injury Determination,
Injury Quantification, Restoration Planning, and Compensable Values
Determination. After completion of a CDA, a Report of Assessment, which
includes the determinations made in each of these components, must be
prepared.
CDA Costs
CDA costs include those costs associated with injury determination
and quantification, restoration planning, and compensable values
determination. Costs incurred should be limited to those the trustee(s)
considers necessary. Such costs should be supported by appropriate
records and documentation in the administrative record, and must not
reflect regular activities performed by the trustee(s) in the
management of natural resources and/or services not related to the
discharge of oil.
Report of Assessment
At the conclusion of a CDA, the natural resource trustee(s) should
document all pertinent activities and decisions in the administrative
record and prepare the Report of Assessment. The Report of Assessment
is the basis of the CDA claim. The Report of Assessment is the DARP, as
modified based upon comments received during the public comment period.
The Report of Assessment contains the trustee's(s') selected
restoration approach. The administrative record should contain the
rationale for conclusions regarding each component of the CDA process.
Injury Determination
Purpose/Scope
The purpose of Injury Determination in a CDA is to verify or modify
the nature of the injury to natural resources and/or services resulting
from the discharge of oil. Injury determination in a CDA should be made
for natural resources and/or services that can be restored or for which
the public can be compensated.
Should the trustee(s) be able to document the nature of the injury
to a natural resource and/or service resulting from the discharge of
oil, he should then proceed to Injury Quantification. If the trustee(s)
is unable to determine such injury, further assessment efforts should
be terminated and the results of the Injury Determination documented in
the Report of Assessment.
Objectives and Study Designs
Based on the information regarding the discharge and environmental
setting collected in the Preassessment Phase, the trustee(s) should
first develop objectives governing the overall CDA and for the
individual component studies comprising the CDA. These objectives
provide direction for the design of the CDA and each study. Once the
objectives are defined, the trustee(s) should develop appropriate study
designs. Study designs address the level of effort for each given
study. The study design may include, but is not limited to,
identification of: (1) The hypotheses or questions posed; (2) changes
in injury that may be considered statistically and environmentally
significant; (3) expected endpoints, i.e., effects, for each resource
and/or service; (4) the appropriate assessment methods for each
endpoint; (5) data quality objectives to ensure that data are collected
and analyzed effectively; (6) sampling design that provides the logical
structure on how to collect the data; and (7) the statistical analyses
to test the hypotheses. Guidance on study designs can be found in the
Injury Determination and Quantification Guidance Document, currently
being prepared.
Injury Determination
Once the individual study designs are complete, the trustee(s)
should then document the nature of the injury resulting from the
discharge of oil. Injury resulting from (or caused by) the discharge of
oil has been determined when the trustee(s) has demonstrated that: (1)
With direct exposure, (a) the natural resource was exposed; (b) there
is a pathway between the discharge and exposed natural resource; and
(c) the exposure of oil, its components, or by-products has been shown
by rigorous and appropriate scientific methodology to have an adverse
effect on the natural resource in laboratory experiments or the field;
or (2) in the absence of direct exposure, (a) the adverse effect on or
impaired/diminished use of a natural resource has been shown by
rigorous and appropriate scientific methodology; and (b) the adverse
effect on or impaired/diminished use of the natural resource would not
have occurred but for the fact of the discharge or threat of a
discharge.
Where multiple factors may have contributed to an indivisible
injury to a natural resource and/or service, the discharge of oil may
be considered a contributing factor to the injury.
The trustee(s) should identify the pertinent exposure pathways, and
relevant injuries to natural resources and/or services. The definitions
of exposure, injury, and causality in the proposed rule are different,
but not inconsistent, than that found in the CERCLA natural resource
damage assessment rule, known as the Type B rule (43 CFR 11.62(b)-(f)).
Guidance on natural resource and service injuries exclusive to oil
discharges can be found in the Injury Determination and Quantification
Guidance Document, currently being prepared.
The method for determining injury in this proposed rule is also
different than that of the CERCLA rule. These methods should be chosen
based on the capability of the method to demonstrate an effect on or
impaired/diminished use of a natural resource. For any injury to be
considered such under this proposed rule, it must satisfy the following
acceptance criteria: (1) For natural resources, (i) the exposure to
oil, its components, or by-products has been demonstrated to cause an
adverse effect on the natural resource in laboratory experiments or the
field; and (ii) the measurement for a natural resource adverse effect
is cost-effective and can be obtained through the application of a
scientifically rigorous and appropriate methodology. Categories of
natural resource and service injury for the CDA (as well as the EDA)
that meet the acceptance criteria specified for discharges of oil are
also currently being developed.
The public is asked to review these changes relative to the CERCLA
rule. Constructive comments should reflect the flexibility and
discretion accommodated to the trustee(s) throughout the OPA proposed
rule.
Injury Quantification
Purpose/Scope
The purpose of injury quantification is to determine the effects on
natural resources and/or services resulting from the discharge as
defined in the proposed rule. The proposed rule allows the trustee(s)
to measure the change in either a natural resource itself, or directly
in a service. The trustee(s) is encouraged to use whichever approach
proves to be most appropriate for a natural resource and/or service
being considered. In either case, Injury Quantification usually
requires comparisons to baseline or reference/control conditions, or
some other known measures. Such comparisons are based upon the
completion of any response actions, and will depend on the recovery
period of both resources and/or services.
Should the trustee(s) be able to quantify injury to natural
resources and/or services resulting from the discharge of oil, the
trustee(s) should then proceed to the restoration component. If the
trustee(s) is unable to quantify such injury, further assessment
efforts should be terminated and the results of the Injury
Quantification documented in the Report of Assessment. Quantification
of Injury: In certain circumstances, the trustee(s) may decide to
quantify natural resource injury and translate that injury to the
reduction in services. If the trustee(s) bases quantification on
natural resources injury, he should determine the: (1) Extent to which
a natural resource injury has occurred; (2) extent to which the injured
natural resources differ from baseline or reference/control conditions;
(3) services normally produced by the injured natural resources and (4)
reduction of services resulting from the discharge of oil.
However, where there are insufficient data to quantify natural
resource injury or where there is no associated injured natural
resource, the trustee(s) may directly quantify the reduction in the
services resulting from the discharge.
Even where natural resource injury does occur, direct
quantification of the reduction in services may be the approach of
choice. In these cases, the reduction in services may be a measure of
injury when the: (1) Extent of change in the services resulting from
natural resource injuries can be determined without also calculating
the extent of change in the resources; and (2) services to be
determined are expected to provide a better indication of compensable
values caused by the natural resources injury than would direct
quantification of the resources themselves.
If the trustee(s) bases quantification on injury to services, he
should determine the: (1) Extent of impaired/diminished services; and
(2) extent to which the level of impaired/diminished services differs
from baseline and/or reference/control conditions.
Quantification Methods
Guidance on quantification methods can be found in the Injury
Determination and Quantification Guidance Document, currently being
prepared. Quantification methods generally include before/after (using
baseline data) and reference/control-impact study designs, using
combined (at the community/population level) and/or individual (at the
organism/biomarker level) injuries. Since particular quantification
methods cannot be recommended to the trustee(s) at this time, guidance
on specific natural resources and/or services to quantify can be
provided. Such selection can be based upon the: (1) Extent to which a
particular natural resource and/or service is affected; (2) extent to
which a given natural resource and/or service can be used to represent
a broad range of related resources or services; (3) consistency of the
quantification method with the requirements of the compensable values
determination component to be used; (4) ability to quantify changes in
a given natural resource and/or service at reasonable cost; and (5)
preliminary estimates of services.
Injury quantification for a CDA requires information on the extent
of injured natural resources and/or services. Information needed for
natural resource injury includes: (1) Total area or volume, if
appropriate, or quantity of natural resources and/or services affected;
(2) degree to which natural resources and/or services are affected; (3)
ability of a natural resources and/or service to recover; (4)
proportion of a natural resources and/or service affected; and (5)
services that the injured natural resources provide to other resources
and humans. Information needed for injured natural resource services
include: (1) a list of the relevant natural resource services; (2)
availability and characteristics of those services; and (3) information
on past and current services. Sources for this information include
government agencies, trade associations, academic organizations,
resident population, response personnel, RP(s), experts, databases, and
the open literature.
Recovery Analysis
The trustee(s) should estimate the time necessary for natural
recovery without restoration efforts and beyond response activities.
Recovery is defined as a return of natural resources and/or services to
baseline or comparable conditions within the limits of natural or other
(human-induced) variability. It is possible for the recovery of
resource services to occur long before or after natural resources
recovery is complete. However, in many cases, resource services are
directly derived from natural resources and the recovery of resource
services should correspond closely with the recovery of the natural
resource.
Response to Comments
Comment: Some commenters suggested that injury should be
hypothesized or justified within a reasonable period (e.g., one to two
weeks).
Response: NOAA disagrees. A good faith effort to expeditiously
complete an injury hypothesis should be made following a discharge.
Nonetheless, it would be unreasonable to require completion of such an
initial assessment within a specific interval, because conditions and
circumstances will vary widely from site-to-site and situation-to-
situation. Further, all concerned should recognize that an initial
hypothesis of injury is just that. Because not all injuries will occur
immediately following a discharge, and those that do may not be
discernable until some time later, the hypothesis may be subject to
significant, and perhaps repeated, revision over time.
Comment: One commenter was concerned that statistical analysis be
used judiciously and also indicated that although specific statistical
analysis cannot be prescribed, statistical criteria can be set forth.
Response: NOAA agrees with this comment and is suggesting judicious
use of statistics.
Comment: Many commenters wanted NOAA to carefully consider the
ultimate use of the data collected so as to be cost- and time-
effective.
Response: NOAA understands this concern all too well. Data use is
integral to the development of damage assessment strategies and
designs. Therefore, NOAA is recommending that data use be specified
early on in the process as part of the objectives of the study as well
as in data quality objectives in the study design.
Comments: One commenter indicated that NOAA does not adequately
address the assessment of the impact on services on natural resource
injury. Another commenter contends that actual, proven services are all
that are included in OPA for quantification purposes. Some commenters
suggested that natural resource damage assessment should include injury
to archaeological and historical services in particular.
Response: To assert natural resource damages under OPA, injury to
natural resources and/or services must be demonstrated. NOAA recognizes
that there is both direct and indirect injury. The trustee(s) should
account for both forms so long as such injuries are relevant to
restoration and compensation efforts. Further, all damages, except
those that are considered speculative, are included under OPA. Injuries
to natural resource services may include archaeological sites and other
resources of historical significance.
Comment: One commenter stated that natural resources are valued in
terms of the services or functions they provide to society, either
directly by providing services to humans or indirectly by providing
services to other natural resources.
Response: NOAA agrees and states in the definition of ``services''
that natural resources provide a wide range of functions that include,
but are not limited to, functions provided to society.
Restoration
Subpart H--Preamble Language
General
Purpose
OPA provides the trustee(s) with the following range of
alternatives to remedy injury to natural resources and/or services:
restoration, rehabilitation, replacement, or acquisition of the
equivalent natural resources and/or services. The proposed rule
provides that natural recovery is also an alternative that must be
considered. If the trustee(s) deems that natural recovery is not an
acceptable alternative for a particular incident, i.e., cannot be
achieved given the scope, scale, and timing of natural recovery, then
restoration, rehabilitation, replacement, or acquisition of equivalent
natural resources and/or services should be examined. For each
alternative, there may be various options or procedures to accomplish
that alternative. Each of the alternatives and options mentioned above
may be considered by itself or combined in a number of ways.
The purposes of the restoration planning process are to: (1)
Determine the most appropriate restoration alternatives for the
recovery of injured natural resources and/or services resulting from a
discharge of oil; and (2) estimate the costs of implementing
restoration.
The goal of restoration is to return the injured natural resources
and/or services to their baseline conditions. Site-specific restoration
objectives should be established and prioritized throughout the
assessment/restoration planning process to provide a blueprint for
restoring the injured natural resources and/or services to baseline or
comparable conditions. These objectives should be clear and identify
the desired outcome.
Restoration Component
The first step in the development of a restoration component by the
trustee(s) is to develop a scoping statement. The scoping statement
identifies natural resources and/or services of concern, as well as
potential restoration alternatives to focus the restoration planning
process. The trustee(s) should develop preliminary restoration
alternatives that address specific injuries.
As the assessment process progresses and significant new
information becomes available, the trustee(s) should begin developing
the restoration component of the DARP. The restoration component,
incorporating preliminary results of the injury determination and
quantification studies, should be based upon the scoping statement. The
DARP will provide the means for soliciting public comments on the
proposed restoration alternatives.
Coordination
Early coordination and cooperation is essential in restoration as
well as assessment where multiple trustees are involved. When multiple
trustee involvement is indicated, a Memorandum of Understanding (MOU)
should be considered to clearly delineate trustee responsibilities. An
example of such an MOU is given in appendix A of the proposed rule.
Participation of the RP(s) early on in restoration planning is also
encouraged in the proposed rule, particularly if the RP(s) is active in
the assessment process. The knowledge and expertise of the RP(s) could
be useful to the trustee(s). The trustee(s), however, has the ultimate
responsibility for all restoration activities and should develop a
joint enforceable agreement or Memorandum of Agreement (MOA) describing
the specific responsibilities of all parties if the RP(s) is selected
to participate. An example of such an MOA is given in appendix B in the
proposed rule.
Emergency Restoration
Emergency restoration prior to the development of the restoration
component is permitted where immediate action is necessary to avoid
irreversible loss, or to prevent or reduce continuing danger to natural
resources and/or services. These actions are described in detail in the
preamble discussion of subpart B--Preassessment Phase.
Restoration Costs
Restoration costs include the costs of implementing the restoration
plan. Both direct and indirect restoration costs, including those
associated with pre-settlement, will be used in the determination of
the total damages.
Restoration Component Development
Requirements
In developing the restoration component for a CDA, the trustee(s)
should: Develop a restoration scoping statement; develop the
restoration component of the DARP; and estimate the costs of
implementing the restoration component described below. The trustee(s)
should also address NEPA implementation requirements relative to the
restoration component.
Scoping Statement
During the preliminary stage of the assessment/restoration planning
process, the trustee(s) should develop a restoration scoping statement.
The scoping statement is intended to serve as a tool to focus the
restoration planning process. The scoping statement should identify
those potential restoration alternatives that the trustee(s) may
consider as potential actions to remedy the effects of the discharge of
oil. The scoping statement will rely on information provided during the
injury determination and quantification studies and may be developed
along a slightly delayed but parallel time line as those components.
This offset but parallel development will facilitate coordination
between the injury determination/quantification and restoration
planning, thereby encouraging the collection of data for both
processes.
The scoping statement should include a summary of the natural
resources and/or services of concern, an evaluation of the
circumstances of the discharge, and the expected injured natural
resources and/or services. Next, the scoping statement should identify
the range of alternatives available to the trustee(s). Where
appropriate, source control and remediation should be considered.
Finally, the scoping statement should identify any opportunity to pool
the recovery with other similar recoveries in a given region in order
to develop a more encompassing restoration plan.
As a tool for the trustee(s), the scoping statement should help
identify the most appropriate restoration alternatives as well as
clarify additional information needs for the restoration component.
While some of this information may be gathered from existing sources,
much may be gleaned from the results of injury determination and
quantification studies. It is expected, therefore, that the
alternatives identified in the scoping statement will evolve as new
information from the assessment process becomes available. The scoping
statement should be included in the administrative record of the
assessment.
If prespill plans or similar supporting documents have been
developed that address the injured natural resources and/or services
and the public was fully involved in the prespill planning, the
trustee(s) may decide that a scoping statement is not needed. However,
the trustee(s) should begin developing the restoration component at an
early stage.
Restoration Component of the DARP
The restoration component of the DARP should be developed during
the latter stage of the injury quantification component. It should be
based upon the scoping statement as well as the results of injury
determination/quantification studies, and feasibility or pilot studies
that may affect the analysis of a given restoration alternative.
The restoration component of the DARP should consist of three broad
components. First, it should include an analysis of the restoration
alternatives considered for each natural resource and/or service and
provide the basis for estimating the restoration costs associated with
each alternative. Included in this analysis should be an estimate of
the rate and degree of recovery for the injured natural resources and/
or services depending upon a given restoration alternative. Second, the
restoration component should identify the preferred approach for each
injured natural resource and/or service under consideration for
restoration. Finally, the restoration component should include the
results of any feasibility or pilot studies proposed. To the extent
practicable, the restoration component should consider opportunities
for pooling recoveries from multiple cases and identify other statutory
review and consultation requirements.
The restoration component of the DARP will be made available for at
least a thirty calendar day public review and comment period, as
provided by Sec. 990.32(c)(4) of the proposed rule. The trustee(s)
should consider the comments received on this plan and make any
revisions necessary. Significant changes, in the judgment of the
trustee(s), should also be made available to the public.
The restoration component will be the basis for the Post-Assessment
Restoration Plan that will be developed after compensation is received.
The Post-Assessment Restoration Plan must reflect the amount of the
actual damage award. This Final Restoration Plan is discussed in detail
in the preamble discussion of the Post-Assessment Phase.
In order to provide for the timely development of the DARP, the
injury determination, quantification, and restoration components should
be conducted concurrently, where practicable. The proposed rule
provides that the trustee(s) will develop, where practicable, the
restoration component early in the assessment/restoration process so
that the trustee(s) can focus efforts towards restoring,
rehabilitating, replacing, or acquiring the equivalent natural
resources and/or services. Estimate Restoration Costs: Costs of
restoration will include direct, as well as indirect (e.g., overhead)
costs. Both direct and indirect restoration costs will be incurred by
the trustee(s) throughout the damage assessment/restoration process.
The costs of the trustee's(s') recommended restoration component will
be used in the determination of damages. Also, the anticipated costs of
the public review of the Post-assessment Restoration Plan, the plan
refined after the damage award, should be included in the damage figure
that the trustee(s) presents to the RP(s). These are part of the
planning and implementation costs estimated by the trustee(s) when
developing the restoration component.
Direct costs are those that the financial management system of the
trustee(s) records on a site-specific basis and hence are costs that
are readily allocated to the damage claim made against the RP(s) for
that incident. Examples of direct restoration costs associated with
preliminary survey work and planning prior to implementation of
restoration include: Site visits; chemical/physical/biological
analyses; restoration plan development; human health and safety plan;
and community relations program; trustee oversight of restoration
activities by the RP(s); and site plan. Examples of direct costs
associated with specific restoration actions include: contaminant
removal; habitat reconstruction and creation; replanting and
restocking; physical and chemical treatment; any trustee oversight of
any restoration activities of the RP(s); and bioremediation. Other
examples of direct restoration costs include salaries and benefits,
travel costs, materials and supplies purchased specifically for the
implementation of the selected alternative, equipment lease costs,
building related costs if a building is leased or purchased for the
sole purpose of implementing the selected alternative, and payments for
goods and services furnished by private companies or other government
agencies under contract with the trustee agency. Direct costs can
include all costs of other entities performing actions for the trustee
agency. These costs include a contractor's overhead, labor and material
costs, which the contractor bills directly to the trustee agency, if
such costs are paid by the trustee(s). Other direct costs might include
capital, labor, and materials, as well as administrative costs
associated with the development of task orders for engineering design,
evaluation and selection of contractors for project management and
implementation, provision of relevant QA, and other independent
technical/analytical support functions. The cost estimates for
restoration shall include not only the cost of planning and
implementing the recommended restoration component, but the costs of a
monitoring program, mid-course corrections, and feasibility studies,
and other elements the trustee(s) determines appropriate to carry out
his restoration activities, including the oversight of any actions
taken by the RP(s).
Indirect costs are support costs, compared to a private company's
overhead, which support assessments or restoration actions, but which
cannot be directly accounted for on a site-specific basis. Such
indirect costs may include support services to those involved in the
assessment and restoration process, e.g., facilities or personnel,
budgeting, procurement, auditing, or other administrative management
services, as well as policy formulation and assessment/restoration
program costs that are not accounted for on a site-specific basis. In
the related context of cost recovery under CERCLA, the courts have
upheld the recovery of indirect costs. See, e.g., United States v. R.W.
Mever, Inc., 889 F.2d 1497, 1502-04 (6th Cir. 1989); United States v.
Hardage, 750 F. Supp. 1460, 1504 (W.D. Tex. 1990), aff'd, 982 F.2d 1436
(10th Cir. 1992); United States v. American Cyanamid Co., 786 F. Supp.
152, 159 (D.R.I. 1992); United States v. Bell Petroleum Services, Inc.,
734 F. Supp. 771, 782-83 (W.D. Tex. 1990). The trustee(s) may calculate
indirect costs in accordance with any reasonably sound method.
The estimated restoration costs make up that component of the
damage claim representing the costs to restore, replace, rehabilitate,
or acquire the equivalent of the injured natural resources and/or
services. These estimates are to be documented in the administrative
record and included in the DARP.
Phased Restoration Planning
Because of the large scale and present rudimentary knowledge of the
science of restoration, the trustee(s) should consider undertaking
restoration planning in phases. Phased planning and implementation is
proposed through an Adaptive Management Approach (AMA). AMA considers
the following steps: (1) Design and implement the initial phase; (2)
monitor the results; (3) evaluate and interpret the results; (4)
recommend and prioritize follow-up studies; and (5) decide needs for
next phase. This process will facilitate the learning process because
early phases will generate information about how well procedures work,
what problems develop, and what unforeseen benefits might be
capitalized upon in designing future phases. AMA will allow the
trustee(s) to make reasoned assessments of the outcome of the actions
taken so as to protect existing resource values and ensure likelihood
of successful restoration. This approach is a mechanism for dealing
with uncertainty and variability in managing resources. It involves a
process whereby alternatives can be suggested and tested (i.e., pilot
projects) often in small scale before undertaking full scale
restoration. Results of initial experiments are then evaluated to
select the approach for later projects. Later phases will benefit from
information generated in earlier phases. While adaptive management
depends on results from previous work, new projects can be started
before previous phases prove successful, provided the new phase
contains everything thought necessary for successful restoration.
Significant costs may be incurred as a result of the phased
approach to restoration simply as a result of repeated mobilization and
demobilization of necessary equipment, personnel and support functions.
However, the needs of the resource should outweigh any need for human
expediency. The phased approach was developed to respond to a complex
planning milieu as is often the case in a CDA. A programmatic NEPA
Environmental Impact Statement (EIS) with subsequent environmental
assessments serves as the appropriate framework for timely restoration.
A phased approach will allow the trustee(s) to work within funding
constraints, which may enable them to implement complementary projects
more easily than collaborating on a single, large project.
Analysis and Selection of Restoration Alternatives
Restoration Alternatives
The trustee(s) may choose natural recovery, restoration,
rehabilitation, replacement, acquisition of the equivalent, or a
combination thereof in deciding on the most appropriate restoration
alternatives to select for particular natural resources and/or services
injured by the discharge of oil. These alternatives are described
herein and in the Restoration Guidance Document available from the
address given at the front of this preamble.
(1) Natural Recovery: The natural recovery alternative (comparable
to the ``No Action Alternative'') is based upon the process of natural
succession following a discharge whereby the injured resource is left
to recover without any intervention by man. This alternative may not
always result in restoring natural resources and/or services to their
baseline conditions, but should always be considered. Natural recovery
may be selected when: (1) There is evidence that the natural recovery
process will be more effective than other available restoration
alternatives; (2) the resulting natural resources and/or services are
predicted to resemble the original, within the constraints of natural
or other (human-induced) variability, in a time frame not significantly
different from that resulting from human intervention; (3) other
natural resources and/or services will not be adversely affected prior
to the recovery of those originally injured resources and/or services;
and (4) there are no threats to human health and safety from the length
of time for natural recovery.
Where it is clear that natural recovery can restore injured natural
resources and/or services to baseline conditions, additional
restoration measures may not be justified. Nevertheless, because some
natural resources and/or services will eventually recover on their own
does not necessarily mean that restoration should be excluded. Since
one intent of OPA is restoring the environment from the effects of a
discharge of oil, the public should not unduly bear the burden of
natural healing if there are reasonable alternatives available to
hasten the recovery. The trustee(s) should document the decision on the
adequacy of natural recovery in the administrative record.
The ability to determine when natural recovery is optimal may be
constrained by the quality and quantity of baseline information.
Nevertheless, the trustee(s) should attempt to estimate the rate of
natural recovery for each relevant injured natural resource and/or
service based on the information derived from damage assessment and
restoration studies, the scientific literature, and other sources. If
it appears that natural recovery may effectively restore natural
resources and/or services without significant, concomitant adverse
effects, then the trustee(s) should select the natural recovery
alternative. However, if it appears that natural recovery may not
effectively achieve baseline or comparable conditions, the trustee(s)
should consider other restoration alternatives.
(2) Restoration: ``Restoration'' means actions undertaken to return
injured natural resources and/or services to their baseline conditions.
Generally, restoration relates to man's efforts to enhance the recovery
process. Restoration is usually distinguished from response as being
performed after the completion of cleanup activities. Response is
commonly defined as action to contain and clean up oil immediately
following a discharge or to protect natural resources and/or services
by a response agency. Restoration actions, such as the removal of
contaminated resources, may be performed during and after response to
facilitate the recovery of relevant natural resources and/or services.
In the present context, restoration performed at the location of impact
is referred to as ``direct restoration.'' The other alternatives
identified below may result in beneficial, but not duplicative, natural
resources and/or services to those injured, and are therefore described
as ``compensatory restoration.''
(3) Rehabilitation: ``Rehabilitation'' refers to actions to bring
injured natural resources and/or services to a state different from
baseline conditions but still beneficial to the environment and public.
This alternative is particularly important when direct restoration is
technically or economically infeasible, but the affected site retains
the potential to support alternative valuable natural resources and/or
services. The definition of rehabilitation encompasses enhancement
actions taken on an affected site to increase one or more values,
possibly at the expense of other values. This alternative should be
distinguished from the ``natural recovery'' alternative, which relies
exclusively upon natural recovery unassisted by man.
(4) Replacement: ``Replacement'' refers to actions that substitute
natural resources and/or services that provide the same or comparable
natural resources and/or services as those injured. Replacement, as
opposed to ``direct'' restoration, results from restoration actions
taken away from the affected site to furnish or create equivalent
natural resources and/or services within the region. For example,
habitats away from the discharge site may be created to provide
equivalent services within the region in terms of fish and wildlife
production. Injured services provided by natural resources that might
be replaced include those of recreational, commercial, or ecological
importance, or those of special significance.
(5) Acquisition of Equivalent: ``Acquisition of equivalent
resources'' refers to obtaining natural resources and/or services that
the trustee(s) determines are comparable to those injured. Equivalent
natural resources should be acquired to hasten recovery, and protect
and maintain the natural resources affected by a discharge. Acquisition
of equivalent resources is distinguished from replacement of resources
by the fact that the acquired resources already exist rather than being
created or enhanced. ``Acquisition of equivalent resources'' addresses
specifically ``resources,'' not ``services.'' Acquisition of equivalent
resources should only be used when the trustee(s) has determined that
restoration, rehabilitation, or replacement of specific natural
resources is technically infeasible or the cost is grossly
disproportionate to the value of the resources involved.
(6) Combination of Alternatives: Each alternative discussed above
may be considered individually or combined in various ways; depending
upon feasibility, environmental-effectiveness, and relative cost
considerations. Also, each alternative may be implemented through one
or more options or procedures selected by the trustee(s). When
mentioned, alternatives imply associated options. Differences among
combinations of alternatives and the related options within each
alternative could be based upon the severity of the natural resource
injuries, quality and quantity of knowledge about recovery, expected
effectiveness of the alternatives, or the environmental or human
significance of the injured natural resources and/or services.
Analysis of Restoration Alternatives
As the results of the injury and quantification studies become
available, the trustee(s) should revise the list of restoration
alternatives developed. As this list is revised, the trustee(s) should
analyze each alternative taking into account not only the feasibility,
but also the effectiveness and relative cost (described below). The
choice of restoration alternatives is influenced by the nature of the
injuries to the natural resources and/or services, and the extent to
which immediate action is taken to remedy those injuries. Also, the
restoration alternatives should seek to ensure the recovery of injured
natural resources and/or services. Examples of services provided by the
natural resources that might be returned to baseline conditions include
human uses (e.g., recreational, commercial), ecological, or those of
special significance. Certain services that are of cultural
significance (e.g., archaeological sites) are not typically living,
renewable resources and have no capacity to heal themselves. Therefore,
such services cannot recover ``naturally'' and, to the extent
restoration is practicable, will need human intervention.
Certain factors should be considered for each restoration
alternative. If, based upon these considerations, an alternative is
unacceptable, it will be eliminated from further consideration. The
evaluation of the relevant factors should be documented in the
administrative record. When the DARP is made publicly available, the
trustee(s) should provide for the administrative record a brief
description of how the restoration alternatives contained in the DARP
comply with these factors.
(1) Feasibility: The key factor to consider in selecting
restoration alternatives is feasibility. Feasibility depends upon
whether an action is possible given certain constraints. These
constraints include, but are not limited to: Availability of services,
materials and equipment; expertise; construction and operational
limitations; need or capability for future restoration; and
administrative, legal, or regulatory requirements.
Where practicable, the trustee(s) should consider methods currently
available, i.e., proven methods should take preference over unproven
methods. Under many circumstances, however, existing methods will need
to be modified for a given discharge. For example, the trustee(s) may
propose providing artificial nesting sites for a particular species of
bird to replenish the population. While there is ample information on
the nesting requirements of a similar species of bird, little
information is available about the nesting requirements of the injured
bird species. The trustee(s), therefore, may have to rely upon the
requirements of the similar species in designing nesting site
alternatives for the injured species.
(2) Environmental Effectiveness: Once the trustee(s) determines
that a restoration alternative is feasible, the trustee(s) should then
evaluate the environmental effectiveness of the alternative.
Effectiveness deals with the general question of whether an action
accomplishes the goals and objectives of restoration. Effectiveness is
dependent upon the: (1) Extent to which the proposed alternative can
return natural resources and/or services to acceptable conditions; (2)
extent to which the proposed alternative causes additional injury; (3)
extent to which the proposed alternative improves the rate of recovery
and success; and (4) level of risk and uncertainty in the success of
the proposed alternative.
(3) Relative Cost: Simultaneous with the environmental
effectiveness determination, the trustee(s) should evaluate the
relationship of the expected costs of implementing the alternative
relative to other alternatives and to their anticipated benefits. This
requires that the trustee(s) consider, among other things, the: (1)
Significance of the natural resource and/or service to the environment
and public; (2) extent to which the proposed alternative benefits more
than one natural resource and/or service; (3) cost of the proposed
alternative; (4) relationship of the expected costs to the expected
benefits; and (5) level of risk and uncertainty in the cost-benefit
analysis.
Total damages will depend on the sum of compensable value and
restoration costs. Often, there will be tradeoffs between compensable
value and restoration costs. For example, faster-paced and more-
intensive restoration activities may reduce the associated compensable
values, e.g., interim lost use values, but may do so at the expense of
substantially higher restoration costs. In some cases, there may be
sufficient data to demonstrate that some (combinations of) restoration
alternatives would result in substantially lower total damages than
others. NOAA seeks comment on the following questions. Where
restoration data on costs and benefits are sufficient, should the
trustee(s) be required to select the (combination of) restoration
alternatives that minimize total damages? If not, should the trustee(s)
be required to explain the rationale for selecting (a combination of)
restoration alternatives that do not minimize total damages?
Cost evaluation is not a straight economic cost/benefit analysis.
Rather, it is primarily a consideration of qualitative, rather than
quantitative, factors. There may be overriding policy considerations
that would cause the trustee(s) to consider certain ``collateral
benefits.'' For example, if a scenario involves certain non-renewable
natural resources, i.e., an endangered species or a resource of
cultural significance, the costs of restoration may appear, under a
straight cost/benefit analysis, to be grossly disproportionate to the
value of the benefit of restoration over natural recovery. However, the
possibility of continuing or additional effects to these nonrenewable
resources may require that restoration actions be taken.
In this regard, NOAA's approach is similar to the one proposed
earlier by the U.S. Department of the Interior (DOI). In April of 1991,
DOI proposed revisions to its damage assessment rule to comply with the
ruling in the Ohio decision. In those proposed revisions, DOI stated
that the trustee(s) should:
consider the relationship of the expected costs of an alternative to
the benefits from the implementation of that alternative, both in
terms of the recovery of the resource and the benefits to the public
that would result. This consideration is not intended to be a
straight cost/benefit analysis. The trustee should weigh
circumstances unique to each assessment against the expected
alternative costs.
56 FR at 19758.
Basically, the trustee(s) must judge the advantage or desirability
of a particular restoration alternative in terms of the expected costs
of implementing the alternative compared to the benefit of that
alternative. When possible, the trustee(s) should attempt to quantify
such benefits. However, NOAA recognizes that situations will arise when
it is more reasonable for the trustee(s) to forgo such quantification.
For example, if the cost of restoration is $3 million, and it will cost
more than that to quantify the benefits, the trustee(s) should rely on
a qualitative approach, i.e., one that considers the other factors
discussed in this subpart. Those factors include technical feasibility,
effectiveness of the restoration component, nonrenewability of the
resource (i.e., archaeological resource), and the significance or
uniqueness of the resource (i.e., an endangered species or a resource
of cultural significance). Further, any analysis must take into account
discounting and uncertainty, as well as other factors deemed relevant
by the trustee(s). (These concepts are discussed in a later section of
this preamble.)
Depending upon the type of discharge and nature and extent of the
injury, the proposed alternatives and related costs may vary
significantly. A determination that expected costs are reasonable when
compared to the anticipated benefits includes a careful comparison of
direct and indirect expenses. Of all alternatives that achieve similar
benefits and meet the goals and objectives of restoration, the most
cost-effective alternative should be chosen. A restoration alternative
will be cost-effective if it is determined to have the lowest costs
expressed in present value for a given amount of benefits. If the
benefits can be quantified in dollars, that dollar figure should be
discounted to present value. However, should the benefits be quantified
in terms other than dollar values, those benefits should also be
discounted to present value.
This proposed rule does not define the term ``grossly
disproportionate'' as a numeric ratio. Instead, NOAA adopts the
approach recommended by DOI in its April 1991 proposed rulemaking. The
trustee(s) must consider all of the factors discussed in this subpart
in selecting the most appropriate alternative. However, it is not
required that each factor be given the same weight for each discharge
situation or even for each alternative considered. As stated in the DOI
proposed rule,
* * * the various alternatives considered may address and balance
these factors in different ways. In practice, the alternative
selected by the trustee as the most appropriate might not satisfy
all the considerations, yet still be ``correct'' for the purposes of
the assessment. The trustee, after considering all the relevant
factors, may make a selection that gives greater weight to some
factors over others.
56 FR at 19757.
In addition, the trustee(s) must document this consideration in the
administrative record. Such documentation will constitute the grossly
disproportionate determination. Selection of Restoration Alternatives:
Based upon the analysis of the restoration alternatives for each
category of injured natural resources and/or services, the trustee(s)
should select the alternative or some combination thereof that best
meets the needs of each injured natural resource and/or service based
upon the factors listed above. The trustee(s) should then develop the
restoration component of the DARP based upon this selection for each
natural resource and/or service.
The restoration component is that part of the DARP that will be
used to estimate the restoration costs. The restoration component
should also contain the site-specific objectives of the restoration and
an initial listing of priorities of natural resources and/or services
of concern. The restoration component and its estimated costs of the
DARP then goes out for public review and comment.
Feasibility (Pilot) Studies
Because restoration science is continually evolving, and injuries
to natural resources and/or services may be unique on a site-specific
basis, restoration alternatives for certain natural resources and/or
services may be limited. Therefore, the scoping statement may
conceptually identify small-scale, focused feasibility or pilot studies
where the trustee(s) finds that a particular restoration alternative
needs to be tested to determine whether implementation is not only
technically and economically feasible, but also effective. The costs
associated with the implementation of these studies are part of the
costs of developing the DARP.
Where possible, the scoping statement should conceptually identify
feasibility or pilot studies the trustee(s) may require to evaluate
alternatives. The scoping statement should also provide the public with
notice that additional feasibility or pilot studies, associated with
the development of restoration alternatives, may be conducted
throughout the development of the DARP.
As appropriate, the trustee(s) should coordinate with the OSC prior
to proceeding with any feasibility or pilot studies during the response
phase to ensure that such studies are not incompatible with response
activities. Anticipated studies become part of the DARP and costs of
these actions become part of the trustee's(s') damage claim.
Evaluation of Recovery and Success of Restoration
Definition
Recovery is defined in the proposed rule as the return of the
injured natural resources and/or services to baseline or comparable
conditions, within the limits of natural or other (human-induced)
variability. This definition recognizes the inherent tendency for
natural resources and/or services characteristics to vary over space
and time. Defining restoration goals, selecting appropriate criteria
for monitoring goal achievement, identifying appropriate performance
standards (endpoints), and measuring levels of achievement of these
standards are necessary to determine success in restoration. Particular
attention should be paid to reestablishing and maintaining the
diversity of the site(s) as evidence of the total health of the
recovering system. The recovered condition is not required to be
identical to the baseline or reference/control condition; however, it
should not be functionally different from that condition.
Monitoring
Monitoring should be an integral part of the recovery
implementation process. Recovery cannot be properly established without
a well-designed and executed monitoring plan. Every natural resource
and/or service is unique, which makes it inappropriate to propose fixed
monitoring plans for a generic habitat or biological resource.
Nevertheless, there are several general principles that apply to any
such effort: (1) Monitoring should be sufficiently long to ensure
recovery to a stable condition; (2) all relevant components of the
affected environment should be monitored, as it relates to the
restoration alternative; (3) the progress of recovery should be
compared with natural changes occurring in similar unaffected reference
or control areas; (4) sampling should be designed to provide
statistically significant and defensible results; and (5) the
monitoring plan should be sufficiently flexible to permit mid-course
corrections if the need arises. In the event that maintenance is
required to ensure success, the decision on the need for such
maintenance should be part of the restoration component.
Mid-Course Corrections
The restoration component should incorporate provisions allowing
for mid-course corrections. Monitoring and evaluating recovery will
enable the trustee(s) to determine when mid-course corrections are
necessary. Mid-course corrections should be based upon, but not limited
to, the nature and extent of injuries suffered by the natural resources
and/or services, actual effectiveness of the restoration alternatives,
and results of monitoring.
The possibility of the need for mid-course corrections should be
considered in the restoration component. It could be that feasibility
or pilot studies will obviate the need for mid-course corrections. In
some cases, settlement agreements have specifically addressed this
issue. One possible approach is to include in a settlement agreement a
``reopener'' clause, i.e., a specific provision to revisit an issue if
it becomes necessary at a future time. Another possibility is for the
RP(s) to deposit an agreed-upon amount of money in an escrow account to
cover future restoration actions that could not be fully developed at
the time of the settlement. These funds would then be used for these
future actions, or would revert to the RP(s) if not needed for
restoration.
Responses to Comments
Comment: One commenter indicated there may be some confusion with
semantics in the terms used for and hierarchy of restoration,
rehabilitation, replacement, or acquisition of the equivalent.
Response: NOAA hopes to minimize confusion by defining all terms in
the proposed rule. Further, the proposed rule does not suggest a
hierarchy of restoration alternatives, except in the case of
acquisition of equivalent resources, and leaves such prioritization to
the discretion of the trustee(s) on a case-by-case basis.
Comment: One commenter suggested that the assessment process should
focus on natural resources that may actually benefit from restoration.
The commenter noted that such an approach would reduce contention
between the trustee(s) and RP(s), and reassure the public that its
resources are receiving attention.
Response: NOAA agrees with the suggestion that restoration should
be implemented only where the trustee(s) determines that such efforts
would benefit the natural resources and/or services. However, the
trustee(s) cannot totally ignore those natural resources that either
will recover naturally or are not recoverable. The trustee(s) must
still seek restoration of or compensation for these interim lost
services.
Comment: One commenter stated that the primary objective of the
restoration process should be the timely restoration of the affected
natural resources to levels that are adequate to support the services
they normally provide to the biological community in general and humans
in particular.
Response: NOAA agrees with the commenter based on the assumption
that ``normally'' means baseline or reference/control conditions.
Comment: A few commenters noted that restoration, beyond what is
needed to return to baseline conditions and specific numeric levels,
would be an inefficient use and an over-investment of society's
economic resources. Such efforts would result in a net loss in economic
welfare, which is inconsistent with section 1006(d)(1) of OPA.
Response: The goal of restoration is the recovery of the natural
resources and/or services to baseline conditions in the most cost-
effective and beneficial manner. Recovery refers to structural or
functional equivalence, which is left to the discretion of the
trustee(s). If the result of the trustee(s)' actions are to somewhat
enhance the level of services to a level higher than existed before the
discharge, such an action may be justified. These actions are
appropriate so long as the public is made whole for those services
denied from the time of the discharge until recovery is complete.
Comment: Many commenters indicated that the trustee(s) should
choose a restoration procedure on a case-by-case basis.
Response: NOAA agrees that restoration procedures must be chosen on
an incident-specific basis, except for those situations where an
approach has been developed through prespill planning pursuant to
Sec. 990.16(c).
Comment: Several commenters urged that plans be revised as the
restoration progresses and new information becomes available to provide
the greatest potential for recovery of all its natural resources.
Several commenters stated that the trustee(s) should base decisions on
previous studies and restoration efforts.
Response: The proposed rule does allow for revision of the
restoration component as new information becomes available. NOAA agrees
that access to information on previous restoration studies would be
beneficial to the trustee(s). The restoration literature survey that
NOAA has compiled will assist the trustee(s) in this regard.
Comment: One commenter noted that when total restoration is
impossible, NOAA should, at a minimum, require: (1) The use of sites
identical to the site of the discharge that are adversely affected by
other oil discharges; (2) the use of sites identical to the site of the
discharge that are assured success as a mitigation bank; or (3) the
consideration of alternatives to a mitigation bank.
Response: NOAA chooses not to ``require'' the suggestions listed by
the commenter and leaves this to the discretion of the trustee(s). The
Restoration Guidance Document does give some guidance on what might be
``identical'' sites. The trustee(s) has many possibilities on how to
approach restoration. If total restoration is not possible, the
trustee(s) can estimate lost compensable values, discount to present
value, and use that sum to acquire equivalent services.
Comment: One commenter noted that restoration science is relatively
new and this science is not yet sufficiently developed to assure the
success of human-initiated restoration of resources over natural
recovery.
Response: NOAA notes that restoration is a relatively new science
and that there are no absolute guarantees that any planned effort will
succeed. However, the trustee(s) cannot afford to wait for such
assurances before acting to help systems recover from discharges. The
trustee(s) should be mindful of the overall goal of restoration. The
restoration component should be designed to come as close as possible
to that goal.
Comment: One commenter stated that biologic resources exhibit
natural variability. Biological communities are not static. They are
drastically affected by natural forces such as weather, food supply,
and predation. The commenter argues that despite these adverse forces,
biological systems are accepted as ``healthy and vibrant'' if the
plants and animals characteristic of that community are present and
functioning normally.
Response: NOAA agrees that certain biological communities have a
high degree of natural variability. In such cases, only restoration
that allows the natural cycle to continue as before should be
considered.
Comment: One commenter noted it may not always be appropriate to
give preference to sites closest to the discharge area since this may
increase use pressures on already injured ecosystems.
Response: NOAA agrees that such factors as possible increased
pressures on the affected system should be considered by the
trustee(s).
Comment: One commenter argued that the RP(s) has a discretionary
right under the Fifth Amendment to take part in any of the trustee(s)
assessment activities. Another strongly opposed the RP(s) having sole
responsibility for monitoring the affected area.
Response: NOAA points out that participation by the RP(s) in either
the assessment or restoration is discretionary with the trustee(s). The
proposed rule does not require participation. The trustee(s) has the
right to offer the RP(s) the chance to participate, and the RP(s) has
the right to decline.
Comment: One commenter noted oil removal activities are mentioned
as feasible restoration alternatives, and that restoration activities
should be confined to those needed after response is completed.
Response: NOAA points out that a particular action, e.g., removal
of contaminated sediment, might be considered as either a response
action or restoration action. The dividing line for such
classifications is dependent upon timing and authority of the person
carrying out the actions. The response agency is acting under the NCP
to respond to incidents to protect human health and the environment.
The trustee(s) may be directed under other statutory schemes to take
similar actions for the protection of its trust resources. For example,
the response agency might remove a certain amount of contaminated
sediment to bring concentrations to a certain level set for human
health reasons. The trustee(s), however, may determine that an
additional amount of contaminated sediment may need to be removed to
attain concentrations that will not result in bioaccumulation in fish
populations.
Comment: One commenter suggested that empowering the trustees to
pursue emergency restoration outside response under the direction of
the OSC will lead to chaos.
Response: NOAA notes that the OSC does not have the authority to
implement restoration of natural resources. The trustee(s) is
ultimately responsible for that duty. If response actions are
continuing while the trustee(s) is developing the restoration
component, the two entities should work closely together.
Comment: Many commenters recommended NOAA require the trustee(s) to
identify and consider a full range of restoration alternatives,
including cleanup or remediation actions. Some commenters also
recommended limits on the range of restoration alternatives the
trustee(s) can consider for final selection. A number of commenters
suggested a preference for restoration, rehabilitation, and replacement
over acquisition of the equivalent. One commenter noted inclusion of
the four alternatives is consistent with DOI's proposed definition of
restoration. One commenter thought the descriptions of the restoration
alternatives should be contained in guidance material, rather than in
regulatory language.
Response: NOAA does not agree with the commenters who recommended a
limit on the range of alternatives the trustee(s) should consider. The
trustee(s) should consider a range of alternatives that is
``reasonable'' for the discharge of concern. The consideration of a
``reasonable number'' of alternatives should give a full range of
options that might be suitable for the specific natural resources and/
or services. NOAA notes that, although the alternatives might include
acquiring equivalent natural resources, acquisition of equivalent
resources should be considered appropriate in those cases where
restoration is technically infeasible or costs are grossly
disproportionate to the value of the resources. Guidance on the types
of alternatives and how they might be considered is given in the
Restoration Guidance Document.
Comment: Several commenters noted some discharges will not require
full action. These commenters requested an alternative requiring no
action (except, perhaps, for monitoring) beyond the cleanup actions
taken or planned. Other commenters recommend ``No Action Natural
Recovery'' as the preferred restoration alternative, e.g., prohibiting
human activity, and that all other alternatives be compared to it for
cost-effectiveness, reasonableness of costs, technical feasibility,
rate of restoration of lost services, and ecological sensitivity. A
number of commenters questioned whether human intervention will result
in more rapid recovery than would occur naturally.
Response: NOAA agrees that ``Natural Recovery'' should be an
alternative considered in every case. This proposed rule does direct
the trustee(s) to consider such an alternative in each restoration
component drafted.
Comment: A few commenters stated a restoration alternative should
not be selected unless the trustee(s) had included in the
administrative record evidence the trustee(s) used to determine that
that alternative is both possible and preferable to the other
alternatives considered.
Response: NOAA is sensitive to the concern regarding the public's
opportunity to have access to information available to the trustee(s).
Therefore, documentation of the trustee's(s') decisionmaking process is
one of the reasons behind NOAA's decision to provide for the
administrative record process established in Sec. 990.15 of the
proposed rule. A discussion of the types of documentation available to
the public in this record can be found in the earlier section of this
preamble that discusses subpart A of this proposed rule.
Comment: Several commenters believe acquisition should not be a
last resort, while others suggested that acquisition should never be
considered as an alternative. Exceptions to acquisition as a last
alternative were indicated when natural resources or services are
subject to intense or continuous pressures, or unique habitats or
threatened/endangered species are involved not under the protection of
another regulatory program. The rationale for eliminating acquisition
altogether was based on the notion that this alternative would diminish
the underlying benefit of resource sustainability as a result of
restoration, accelerating depreciation of natural resource assets.
Response: NOAA does not agree that ``acquisition of the
equivalent'' should be eliminated from consideration by the trustee(s),
and retains this alternative in the proposed rule. NOAA points out that
the legislative history of OPA states that acquisition of equivalent
natural resources should be chosen if restoration is infeasible or its
costs are grossly disproportionate to the value of the resources.
Comment: One commenter noted that NOAA provides different standards
for replacement and acquisition of natural resources. The commenter
recommends NOAA define ``substantially similar'' to meet the mandate in
OPA requiring equivalence between the affected natural resource and
``new'' natural resource. The commenter also stated that NOAA should
recognize the fact that, although acquisition may be necessary, it only
protects the status quo and will not replace the lost functions of the
affected area.
Response: NOAA did not intend to suggest different standards for
replacement and acquisition of equivalent natural resources. The term
``substantially similar'' is defined to ensure that the services
provided after the event are as close as possible to baseline
conditions. In response to the suggestion that acquisition of
equivalent natural resources simply preserves the status quo, NOAA
notes that the evaluation of restoration alternatives should seek to
ensure return to baseline or comparable conditions of natural resources
and/or services. Therefore, acquisition of equivalent resources might
also include some improvement of the acquired resources to make up for
what the public lost.
Comment: A number of commenters suggested a screening process for
selecting a restoration alternative to ensure the selected alternative
is technically feasible, environmentally-effective, and has costs that
are not grossly disproportionate to the anticipated benefits. In the
screening process, the trustee(s) should identify all restoration
alternatives that could be pursued. The trustee(s) should then
eliminate those that are not technically feasible, inconsistent with
applicable federal and state laws and policies, not cost-effective, or
have costs that are grossly disproportionate to the anticipated
benefits of restoration, but not using a numerical criterion. The
``grossly disproportionate'' criterion should apply to incremental, not
marginal, costs and benefits as well as total costs and benefits.
Finally, from the remaining alternatives, the trustee(s) should select
the one most suitable for restoring the natural resource injuries. One
commenter cited one court, in Commonwealth of Puerto Rico v. Zoe
Colocotroni, 628 F.2d 652 (1st Cir. 1980), that suggested similar
factors be considered in the planning of restoration.
Response: NOAA notes that the selection factors indicated by the
commenters are incorporated in some form in the proposed rule and
Restoration Guidance Document.
Comment: One commenter opposed the promulgation of any rule that
allows the use of mitigation banking. The commenter noted mitigation
banks have not been successful in restoring other affected natural
resources such as wetlands, and urged NOAA consider other methods of
restoration where total restoration of the affected area is not
possible. The commenter stated no preference should be given to sites
that have similar resources in another watershed since it has no
restorative effect on the affected area, and would potentially result
in the total sacrifice of the discharge area.
Response: NOAA notes that the concept of ``mitigation banking'' has
met with criticism in recent years. However, NOAA does not wish to
preclude the use of any tool that may be useful to the trustee(s).
Therefore, although not required, mitigation banking would still be an
option to consider where the trustee(s) feels it may be appropriate.
The location of the activity, i.e., one watershed or another, would be
a factor that the trustee(s) should consider.
Comment: Some commenters noted that pilot projects prior to full
restoration are appropriate in some cases, but should not be required.
Several others agreed pilot projects should be used, but only prior to
restoration. Another noted that pilot studies are unnecessary under any
circumstances.
Response: NOAA points out that the proposed rule allows feasibility
or pilot studies to determine the effectiveness of restoration actions.
However, the such efforts should be carefully defined and their need
documented.
Comment: Many commenters stated that both early and long-term
monitoring is essential to evaluate the recovery of the affected
resource. One commenter recommended that the affected area be monitored
for a minimum of five years.
Response: NOAA agrees that the restoration component should
consider monitoring, but leaves the details to the trustee(s) regarding
the nature and extent of such activities. NOAA does not agree that
there should be an absolute time requirement for monitoring since these
plans are site-specific.
Comment: A number of commenters agree that mid-course corrections
be used as a gauge for measuring the effectiveness of restoration.
Another agreed that such corrections should be required until the
system has stabilized. Several commenters supported the inclusion of
mid-course corrections, so long as the RP(s) is not held accountable
for additional costs, unless the RP(s) participated in the original
restoration plan, or unless there was a stipulation for mid-course
corrections previously included in the restoration component of the
damage settlement.
Response: NOAA notes that the proposed rule does allow for mid-
course corrections in restoration. However, it would not be reasonable
to expect a damage award to have reopeners in perpetuity for taking new
approaches to restoration of a system following one discharge.
Therefore, the trustee(s) needs to design the restoration component
carefully to spell out the conditions under which mid-course
corrections would be called for and try to anticipate an endpoint to
the restoration process.
Comment: One commenter pointed out that OPA does not mention
``grossly disproportionate'' costs. The commenter noted that the phrase
is only discussed in OPA's legislative history in terms of a factor to
consider in choosing between restoration and acquisition of the
equivalent. As such, the phrase cannot be used to relieve the RP(s)
from the obligation to either restore or acquire equivalent resources,
as seems possible under the Ohio decision.
Response: NOAA agrees that discussion of the phrase ``grossly
disproportionate'' in OPA's legislative history is different from the
discussion found in the Ohio decision. Under OPA, the trustee(s) is to
consider whether the costs of restoration, rehabilitation, or
replacement would be grossly disproportionate to the value of the
injured natural resource only in deciding to acquire equivalent natural
resources.
Comment: Several commenters indicated that the selection of a
restoration alternative not be ``grossly disproportionate'' to the
benefits derived from the action.
Response: NOAA agrees with this comment to the extent that it uses
the term ``grossly disproportionate'' as discussed in this proposed
rule. As previously noted, NOAA believes that the OPA proposed rule
should not strictly define a numeric ratio delimiting the term
``grossly disproportionate.'' Instead, NOAA has established a number of
factors that the trustee(s) must consider. NOAA concludes that this is
the most appropriate approach for meeting OPA's strict objective of
complete ``restoration, rehabilitation, replacement, and/or acquisition
of the equivalent resources, * * *,'' following the discharge of oil.
Comment: Several commenters discussed the earliest treatment by a
court of the issue of grossly disproportionate restoration costs,
Commonwealth of Puerto Rico v. Zoe Colocotroni, 628 F.2d 652 (1st Cir.
1980). The court in Zoe Colocotroni stated that the appropriate measure
of damages would be the cost reasonably incurred to restore or
rehabilitate the injured resources to as close to baseline condition as
is feasible without grossly disproportionate costs. The court suggested
that where such restoration is either physically impossible or
disproportionately expensive, the measure of damages might be the
acquisition of comparable lands. The commenters suggested that NOAA
should use the standards given by the Zoe Colocotroni court.
Response: NOAA notes that the standards listed in the Zoe
Colocotroni decision are, in fact, included in the factors to be
considered in evaluating restoration alternatives under OPA.
Comment: Several commenters proposed that the OPA rule provide for
restoration cost estimates in tabular format based historical data. One
other commenter noted the dearth of restoration cost information from
which to draw estimates.
Response: NOAA feels there is sufficient information to proceed
with the development of damage cost estimates in tabular format, i.e.,
compensation formulas. The data on costs will be based upon a ``dollar-
per-gallon'' formula, taking into account average restoration costs,
plus average lost direct use pending restoration. NOAA recognizes,
however, that for certain incidents or types of natural resources and/
or services, site-specific restorations must be planned for which
detailed cost estimates could then be established.
Comment: One commenter stated that it is premature to limit the
quality or quantity of restoration to the ability of the RP(s) to pay.
The RP(s) must, in principle, be held to fully offsetting the damages
that was caused by the discharge. Another commenter noted that because
of the limited liability of the RP(s) in section 1004 of OPA, all costs
may not be recovered from the RP(s). Therefore, restoration priorities
must be made and funded by the proven claimants.
Response: NOAA does believe that the RP(s) should be liable for all
reasonable damages. However, NOAA also notes that the trustee(s) must
develop realistic plans if any benefit is to be expected rather than
spend time and effort on unrealistic plans. Also, the trustee(s) may be
able to fund necessary restoration actions through an ``uncompensated
claim'' submission, pursuant to section 1012(a)(4) of OPA.
Comment: One commenter pointed out that intervening outside
influences and their effects must not be charged against the RP(s).
Response: NOAA notes that ordinarily independent, intervening
actions or conditions may not be within the liability of the RP(s).
Comment: One commenter noted that if there is no impairment of the
services of a natural resource, then society suffers no damage.
Following, if society suffers damage due to impairment of a resource's
services, that damage is fully remedied when the resource's services
are restored, since society's welfare is then returned to the state in
which it would have been in the absence of the injury.
Response: Damages include the value of lost services pending
recovery of the natural resources and/or services. Return to baseline
levels of services does end the current losses of values but does not
address the past losses to the public pending that return. Therefore,
those past losses are recoverable as a part of the damage figure.
Comment: One commenter agreed that NOAA's ANPRM correctly
recognizes that the measure of natural resource damages is based on the
services provided by the affected natural resources. Another commenter,
however, stated that restoring services is not the same as restoring
natural resources and, therefore, should not be the preferred measure
of damages.
Response: NOAA agrees that the value of lost services is one
component of the damage figure. However, restoration of the injured
natural resource is always preferred where practicable.
Comment: Several commenters objected to the suggestion that the
trustees ``improve'' access to the injured site or another site as a
method of restoration. These commenters argued that use of sums
recovered for such purposes would be inconsistent with OPA.
Response: NOAA did not intend to suggest that increased use of an
injured natural resource is a viable restoration alternative. NOAA
suggests that one way of providing services for interim lost use
pending recovery might be to provide public use of a substitute site.
The substitute site would have to be capable of sustaining such use
without impairment. This suggestion of alternative services may also be
a way to use those sums recovered representing diminution of use in a
way to make the public whole for its loss.
Compensable Values Determination
I. Introduction
Section 1006(d) of OPA authorizes the trustee(s) to recover: The
cost of restoring, rehabilitating, replacing or acquiring the
equivalent of the injured or lost natural resources and/or services;
the diminution in value of the injured or lost natural resources
pending restoration; plus the reasonable cost of assessing those
damages. Guidance on estimating restoration costs is discussed
previously in this preamble. This discussion provides guidance to the
trustee(s) for estimating the total diminution in value of resources
and/or services affected by a discharge, hereinafter referred to as
compensable values.
For the purposes of this proposed rule, compensable values include
all reliably calculated values that comprise the total diminution in
value of lost or diminished services of trust resources as a result of
a discharge, from the onset of the event until recovery to baseline
conditions is deemed complete by the trustee(s), i.e., interim lost
values. If the resources and/or services will not fully recover with
the implementation of the Restoration Plan, the calculation of
compensable values will include the value of a perpetual stream of lost
services. Failure to include all relevant categories of damages in a
claim would understate the true loss to the American public
attributable to the discharge of oil. In accordance with the
Congressional Conference Report (H. Conf. Rep. No. 653, 101st Cong.,
2nd Sess. at 108), ``diminution of value'' refers to the standard for
measuring resource damages cited in the D.C. Circuit Court decision on
Ohio v. DOI. The Ohio opinion defines ``use values'' broadly, to
encompass both direct use and passive use values that can be reliably
calculated, i.e., calculated in a manner that is trustworthy or worthy
of confidence. (See 57 FR at 23067.)
Direct use values are defined as the value individuals derive from
direct use of a resource. Direct uses of resources include both
consumptive uses, such as fishing and hunting, in which resources are
harvested, and nonconsumptive uses, in which the activity does not
reduce the stock of resources available for others at another time,
such as birdwatching and swimming.
Passive use values are defined as the values individuals place on
resources independent of direct use of a resource by the individual.
The term ``nonuse values'' has also been used to refer to the same
concept, but NOAA prefers the term ``passive use values.'' Passive use
values include, but are not limited to: the value of knowing the
resource is available for use by family, friends, or the general
public; the value derived from protecting the resource for its own
sake; and the value of knowing that future generations will be able to
use the resource. Passive use values pertain to the provision of,
improvement to, or prevention of injury to natural resources.
The total value of a resource to an individual consumer encompasses
both direct use and passive use values. When an injury occurs to a
resource, the measure of damages to an individual is the change in the
individual's utility or level of well-being, as measured in monetary
terms (i.e., monetized changes in utility). Economic analysis provides
two exact monetary measures of any change in individual's well-being:
Willingness to pay (WTP) and willingness to accept (WTA). WTP is the
maximum amount of money that an individual would be willing to give up
to ensure access to, provision of, improvements to, or prevention of
injury to a natural resource. WTA is the amount of money that would be
needed to compensate an individual for the loss of access to or for the
injury of a natural resource. To calculate the monetized change in an
individual's utility resulting from a resource injury, net willingness
to pay or willingness to accept is calculated. Net willingness to pay
or willingness to accept is total WTP or WTA minus the costs an
individual incurs to use the resource services, including travel and
time costs.
An approximation for the exact measures of the change in utility or
well-being is the Marshallian ``consumer surplus,'' the value of which
generally falls between WTP and WTA. Marshallian consumer surplus is
the difference between the maximum sum of money an individual would be
willing to pay for a good or service, as calculated from a Marshallian
demand function, and the amount the individual is actually required to
pay. The Marshallian consumer surplus is calculated directly from
observed behavior in market or market-like transactions. This measure
of value of a good or service incorporates the income effects of
changes in its price or quality; for example, a reduction in price or
an increase in quality would have the effect of increasing real buying
power. As a result, Marshallian consumer surplus does not measure value
from a fixed baseline level of utility. In contrast, the exact measures
of WTP and WTA are so labeled because they calculate the monetized
change in utility or well-being from a fixed baseline level of utility.
In any given context, the more appropriate choice between the exact
value measures depends upon the allocation of property rights. Because
the government is holding natural resources in trust for the public,
the WTA criterion is conceptually the more appropriate measure of
damages for natural resource damage claims. However, in some
circumstances it may be infeasible or impractical to provide reliable
measures of WTA. In those circumstances, the more conservative measures
of WTP or the Marshallian consumer surplus are appropriate for
measuring damages.
In addition to losses in value to individuals, compensable values
also include losses to trustee agencies or Indian tribes that protect
and manage the resources for the individual members of the public. The
losses include the reduction in fees collected for the use of natural
resources in the public domain by government agencies or Indian tribes
that are designated as trustees of the natural resources. Similarly,
the reduction in economic rent accruing to a private party because the
government or Indian tribe does not charge a fee equal to the value of
the resource in that use also represents a loss to the public. In this
context, economic rent refers to the difference between the fees that
users would be willing to pay for the use of a public natural resource,
and the fees actually paid. Finally, the loss to the public includes
the reduction in net revenues to public enterprises controlled by the
trustee(s) as a result of the injury to natural resources.
In summary, the compensable values that may be claimed by a trustee
for the losses to the public include, but are not limited to: (i) The
value of losses to all public uses of natural resources (including
passive use) as measured by changes in (a) monetized changes in
utility, or consumer surplus, (b) fees or other payments collectable by
the government or an Indian tribe for use of the natural resource by a
private party, and (c) any economic rent accruing to a private party
because the government or Indian tribe does not charge a fee or price
for the use of the resource equal to the value of the resource
services, provided such economic rent is not recovered under a private
cause of action; and (ii) in instances where the natural resource
trustee(s) is the majority operator or controller of a for-profit or
not-for-profit enterprise, and the injury to the natural resource
results in a reduction of net income to such an enterprise, that
portion of the lost net income due the trustee(s) from this enterprise
resulting directly or indirectly from the injury to the natural
resource.
Although section 1002 of OPA allows other types of recoveries for
damages resulting from a discharge of oil, this proposed rule covers
only damages recoverable by natural resource trustees for injuries to
natural resources and/or services resulting from the discharge.
Therefore, damages assessed in accordance with this proposed rule do
not include: (1) Taxes forgone, because these are transfer payments
from individuals to governments; (2) wages and other income lost by
private individuals, except for that portion of income that represents
uncollected economic rent, because these values do not accrue to the
trustee(s) and may be the subject of lawsuits brought by the
individuals suffering the loss; or (3) any speculative losses.
II. Economic Valuation Process
Natural resources can be viewed as long-lived assets that provide
flows of services through time; for example, fisheries and forests
provide continuing opportunities for commercial harvests of fish and
timber, as well as for fishing, hiking, and other recreational
activities. A fundamental principle of asset valuation is that the
current value of an asset is equal to the present discounted value of
the stream of future services from the asset. When a discharge injures
trust resources and/or services, the diminution in value will equal the
sum of the changes in the present discounted values of all affected
services.
The basic types of services associated with natural resources
include: (1) Recreational; (2) commercial; (3) cultural/historical; (4)
ecological; (5) subsistence; and (6) passive use. A discharge may
affect any or all of these services.
Injuries resulting from a discharge may reduce either the quality
or the quantity of services and resources available to provide
services. For example, if a municipal beach is oiled by a discharge,
recreational beach use will be identified as a category of services to
be analyzed. If the beach is closed for some period, the quantity of
recreational beach services available to the public is reduced. In
addition, after the beach is reopened, the continuing presence of
tarballs on the sand and in the water may reduce the quality of
services available at the beach. The reduction in service quality may
result in a lower value to the user from a visit, and consequently
individuals may reduce their visitation at the beach, with some
stopping visitation entirely during the affected period. In summary,
damages during the period of injury after the reopening of the beach
may include lost values due to reduction in visitation and decreased
value per trip for trips that do occur.
Where resources are used as inputs into a production process, a
reduction in the quantity or quality of the resource may effectively
increase the costs of the input. For example, a closure or a fish kill
in a commercial fishery may increase the transportation costs of
achieving a given commercial catch level. As a result, the injury may
reduce the economic rent accruing to the producer from use of the
public trust resource, the fishery. If the producer is able to pass
part of the effective cost increase onto the consumer, the injury will
reduce consumer surplus as well.
The first step in measuring compensable interim lost values is to
identify the services provided by the natural resources before the
injury. For example, wetlands provide a wide range of services
including, but not limited to, flood control, habitat for plants and
animals (particularly during early life stages), and recreational
opportunities. Any given discharge may not affect all of these
services. For example, a discharge that results in oiling of wetland
vegetation above ground may leave the roots intact. As a result, the
flood control services may be relatively unaffected, while the quality
of habitat for plants and animals may be significantly reduced.
Once a list of services potentially affected by the discharge has
been developed, the trustee(s) will identify which services to consider
in the damage assessment process and the methods for quantifying
economic damages due to those lost or diminished services. As discussed
below, a variety of valuation methodologies are available to the
trustee(s). However, for a given service affected by the discharge,
there may be only one or two methods that are suitable for valuing the
specific type of loss. The availability of data can also affect the
choice of methodology.
The next step involves estimating the change in the quantity and
quality of services attributable to the discharge. This effort requires
information from the Injury Quantification portion of the damage
assessment that identifies the change in the quantity or quality of
resources available to provide services. Users' behavioral responses to
the quantity or quality changes can be estimated, where relevant. For
example, when a fish kill affects a recreational fishery, the lost
recreational services result in the reduction of angler days at the
site. To calculate the change in participation, the change in fish
stock needs to be translated into the resulting change in anglers'
hourly catch rate. Then, the anglers' behavioral response to the change
in quality can be modeled to determine the reduction in recreational
fishing at the site attributable to the discharge.
Once the magnitude of the lost services has been estimated,
economic values are assigned to these services. For example, with
recreational demand models, the change in consumer surplus attributable
to the discharge is calculated directly from the model along with the
change in number of trips. Alternatively, where welfare losses accrue
due to increased input costs, the full welfare loss can be captured by
measuring the reduction in factor income (or surplus).
The diminution of value pending full recovery of the resource is
calculated as the present discounted value of services in the absence
of the injury minus the present discounted value of services with the
injury. To determine the present discounted value with the injury, the
choice of restoration method must be explicit: If no restoration
actions are planned, the with-injury calculation will be based on a
natural recovery scenario. If restoration actions are planned, the
with-injury calculation will need to take into account the effect of
restoration actions on resource recovery paths.
When the recovery period for a resource extends over multiple time
periods, it is important to adjust the damage calculations for each
period for the increases in the quantity and/or quality of the resource
prior to full recovery: In most cases the services will be increasing
toward baseline as the quantity and/or quality of the resource
recovers. The recovery path may differ for each service, so each may
need to be considered separately. For example, in the wetland context
cited above, individuals may choose to return to the wetland to view
wildlife in a matter of weeks, whereas recovery of the habitat to
support a fish hatchery may take months or years.
For some categories of economic damage, it will be possible to
conduct site-specific analyses. For example, the economic damages
associated with the loss of access to a marine transportation corridor
due to closure of a waterway can be estimated using existing site-
specific data in most instances. In other cases the trustee(s) may
employ benefits transfer procedures to apply valuation estimates or
valuation functions from existing valuation studies from other contexts
to estimate losses in the present incident.
III. Measurement Techniques
A. Introduction
Several methodologies exist to measure direct use and passive use
values. This proposed rule provides maximum flexibility to the
trustee(s) for selecting any methodology that can provide reliable and
valid estimates of resource values and that is appropriate for valuing
the injuries associated with a particular discharge. The trustee(s)
will have broad discretion in selecting among existing and potential
new methodological approaches that may be employed in damage
assessment. The flexibility to exercise professional judgment in
selecting and applying specific analytical techniques is necessary
because of the ``site-specific'' nature of discharges of oil. Further,
the trustee(s) may use different methodologies to produce separate
damage estimates for different resource services, so long as there is
no double recovery of losses. Either market or nonmarket resource
methodologies may be employed, as relevant to the specific valuation
issues in a given context.
To measure consumer values economists often rely upon directly
observable data on prices and quantities from transactions in private
markets. By definition, nonmarket goods and services are not traded in
traditional markets, generally because such exchange arrangements are
not practical or efficient. For example, national defense, the
interstate highway system, and national parks are nonmarket commodities
provided by the public sector and generally are not traded in private
markets. For goods that are not provided through private markets,
alternative means of determining values have been developed.
The proposed rule identifies reliable valuation techniques for
assessing the economic value of natural resources and/or services
including: The travel cost method; the factor income approach; the
hedonic price model; market models of demand and supply; and the
contingent valuation method. The trustee(s) is not limited to these
methods, and may use any method suitable for calculating compensable
value. Where the circumstances are such that a site-specific
application of one of these valuation methods is not appropriate and/or
does not meet the reasonable lost criterion, the trustee(s) may
estimate compensable values using benefits transfer or may estimate
damages for interim lost services using the habitat or species
replacement cost method. The choice of approach(es) in a particular
context will depend upon the types of injuries associated with a
discharge.
B. Measurement Techniques
1. Site-specific valuation methods--a.Travel cost method. The
travel cost method is principally employed to model demand for
recreational experiences. This measurement technique evolved from the
insight that the travel costs an individual incurs to visit a site are
like a price for the site visit. In essence, the travel cost method
assesses an individual's willingness to travel further (and thereby
incurring higher travel costs) in order to recreate at more highly
valued sites. A site demand function for a sample of households can be
estimated with information on total trips to the site and travel cost
to the site. With trip participation data for before and after a
discharge, it is generally possible to estimate the shift in demand
induced by the discharge (holding all other factors constant) and
calculate either the resulting change in the exact welfare measures of
willingness-to-accept or the Marshallian consumer surplus
approximation. However, if recovery of the resource will occur in
increments over an extended time period, it will not be feasible to
collect site-specific participation data for the full period of the
recovery within the timeframe of the assessment. Adjustments to the
immediate decline in site-specific participation will need to be made
to capture the incremental recovery in participation throughout the
period of resource recovery.
Recent advances in the travel cost method may allow the trustee(s)
to value the variation in quality at a site due to a discharge even
when before and after participation data are not available. Instead of
focusing on the number of recreation trips to a given site (or to all
sites) in a season, the random utility method focuses attention on the
recreationist's choice among alternative recreational sites. This
version of the travel cost model is particularly appropriate where many
substitutes are available to the individual and when the discharge
affected quality at multiple sites.
b. Factor income approach. This approach relies upon the production
function model, which relates the contribution of inputs to the
production of an output. (Inputs are also referred to as factors of
production.) Changes in the availability or price of inputs will affect
the availability and price of the output and hence the level of income
accruing to the producer. Where unpriced natural resources are an input
in the production process, producer income will include both economic
profit (the amount of profit a producer requires to keep capital in
this use in the long run) and economic rent (the income accruing to a
producer as a result of access to an unpriced resource). For example,
fish stocks allocated to commercial fisheries are inputs to the
production of commercially sold fish; access to navigable waterways is
an input into the transport of raw materials and processed goods.
Though the government generally does not charge fees (or charges only a
nominal fee) for the use of fishery or navigational channel resources
or their services, the producer does incur labor and equipment costs to
acquire the services of the natural resource.
A discharge may decrease the quality and/or quantity of a resource
and thereby effectively increase the cost of acquiring the natural
resource input. For example, closure of a fishery may force commercial
fishermen to travel farther to obtain catch, or closure of a commercial
waterway may force vessels to travel longer distances or may delay
docking at port; in both cases, producer costs have increased. As a
result, the injury may reduce the economic rent accruing to the
producer from use of the public trust resource. The change in economic
rent attributable to a discharge can be evaluated by calculating the
change in surplus either in the product market or in the input markets.
Where the output price is not affected, the change in economic rent is
simply the sum of the change in factor costs (or factor income) for
each affected input.
c. Hedonic price model. The hedonic price model relates the price
of a marketed commodity to its various attributes. In the natural
resource damage assessment context, it may be used to determine the
change in value of some nonmarket services from public trust resources
(for example, environmental amenities such as water or air quality)
where they function as attributes of private market goods, such as
property. For example, the value of beach front property may be
directly related to the quality and accessibility of the adjacent
coastline. Reduction in the quality or accessibility, as may occur due
to a discharge, will be captured in the value of the property. All else
equal, the decrease in property values as a result of a discharge
measures the change in use value of the injured coastline resources
accruing to a subset of the potentially affected public, i.e., the
local property owners. This measure is only a partial accounting of the
reduction in value of coastline resources because it does not capture
the loss in value of the resources accruing to members of the public
who own no property in the area.
d. Market models of demand and supply. For those goods and services
regularly traded in markets, economists typically rely upon market
transactions to reveal the values that individuals place on the goods
and services and the costs of producing them. When the quality of the
resource directly affects the value individual consumers place on a
good or service, the correct measure of damage is the change in
consumer surplus, or individuals' willingness-to-accept compensation
for the injuries associated with the discharge. The standard method for
valuing injuries that affect consumers' value of a marketed resource is
to estimate models of market supply and demand for the resource and/or
service. Assuming the injury does not affect the production side of the
market, the damages are calculated as the difference between the total
consumer surplus for the marketed resource with and without the injury,
holding all else constant. The calculation is more complicated when the
production side is also affected. With some demand models, it is
possible to calculate exact willingness-to-accept measures from the
demand analysis; in other cases, the more readily available measure of
Marshallian consumer surplus is used as a proxy.
When the supply of the resource is fixed (or quasi-fixed), then the
observed or predicted change in market price may be used as a proxy for
the change in resource values. An example of a quasi-fixed resource
would be land--the supply of land is fixed in the short-run, but in the
medium-run, improvements to the land may change the flow of services
(agricultural, floral/faunal habitat, housing) available from
individual parcels of land. Market-based methods only capture the
reduced value of services accruing to owners of the resource, and will
not capture the lost value of services provided to the members of the
public with no ownership rights in the resource.
When the resource is regularly traded in the market, the change in
market price may be readily observable. If the injured resource is not
regularly traded in a market, but similar or like resources are traded,
the trustee(s) may use the appraisal technique. The appraisal technique
also will only capture the reduced value of services accruing to owners
of the resource, and will not capture the lost value of services
provided to the members of the public with no ownership rights in the
resource. To the extent possible, all appraisals should conform to the
``Uniform Appraisal Standards for Federal Land Acquisitions'' (Uniform
Appraisal Standards), Interagency Land Acquisition Conference,
Washington, DC, 1973. In those instances when state statutes may be in
variance with these standards, a state trustee(s) should follow the
applicable state guidance on performing appraisals.
e. Contingent Valuation Method. Contingent valuation (CV) is a
survey-based approach to the valuation of nonmarket goods and services,
that relies on a questionnaire for the direct elicitation of
information about the value of the good or service in question. The
value obtained for the good or service is said to be contingent upon
the nature of the constructed (hypothetical or simulated) market and
the good or service described in the survey scenario. This aspect of CV
gives the approach great flexibility, allowing valuation of a wider
variety of nonmarket goods and services than is possible with any of
the other aforementioned techniques. Indeed, it is the only method
currently available for the express purpose of estimating passive use
values. In the area of natural resources, CV studies generally derive
values through elicitation of respondents' willingness to pay (WTP) to
prevent injuries to natural resources or to restore injured natural
resources.
The first published CV study, valuing outdoor recreation, appeared
in 1963. There are now over 1,400 documented papers, reports and books
on CV. In recent years, it has become one of the most widely used
methods of nonmarket valuation.
Four basic elements common to CV questionnaires are: (1) An
explanation of the structure and rules of the market in which the good
or service being valued is either bought or sold; (2) a description of
the good/service and how it is to be provided; (3) the value
elicitation question; and (4) validation questions, to verify
comprehension and acceptance of the scenario and to elicit
socioeconomic and attitudinal characteristics to interpret the
variation in responses to the valuation question across respondents.
There are no universal rules on how each of these elements of a CV
questionnaire should be designed, since the appropriate formulation of
each depends on the good or service being valued and its context and,
consequently, will vary across applications.
CV surveys generally measure total value of a good or service,
which includes both direct use value and passive use value. Because
passive uses of resources leave no behavioral record, they are
difficult to validate externally. A number of criticisms of CV pertain
specifically to its use in valuing the passive use component of total
value and the difficulty of external validation of that component of
total value. Among the most commonly cited criticisms are: The stated
intentions of willingness to pay in CV surveys may exceed ``true''
willingness to pay; CV may produce results that appear inconsistent
with the tenets of rational choice; respondents to CV surveys on
passive use may be unfamiliar with the good/service being valued and
therefore may not have an adequate basis for articulating their true
value; CV respondents may be expressing a value for the satisfaction
(``warm glow'') of giving rather than the value of the good/service in
question; and respondents may fail to take CV questions seriously
because the financial implications of their responses are not binding.
Most proponents of CV acknowledge that poorly designed and administered
CV studies can produce results that reflect the potential problems
identified above. However, proponents also assert that these problems
are not inherent to the method and that well designed and well executed
CV studies can eliminate them or render them inconsequential. Further,
survey design, development and administration standards will promote
quality control for CV surveys. NOAA proposes standards on survey
design, development and administration, and the nature of results
below.
There is considerable interest over the inclusion of passive use
values as part of a natural resource damage claim and the use of CV to
measure such values. NOAA received many, often conflicting, comments on
this issue. To provide a thorough analysis, NOAA convened a Contingent
Valuation Panel (Panel) of economic and survey experts to evaluate the
reliability of CV to measure passive use values. By establishing this
Panel, NOAA attempted to provide an atmosphere in which an unbiased
academic analysis of CV could be conducted. The Panel received hundreds
of pages of comments and conducted a public meeting to hear all sides
of the issue. Upon completion of its study, the Panel submitted its
report to NOAA. That report constitutes a public comment and as such is
part of the administrative record of this rulemaking. A copy of that
report can be found at 58 FR 4601 (Jan. 15, 1993). NOAA considered that
report along with the comments received from economists, industry
representatives and other interested parties in the development of this
proposed rule.
Based upon consideration of all comments received, NOAA believes
that the trustee(s) should have the discretion to include passive use
values as a component within the natural resource damage assessment
determination of compensable values. This position is consistent with
OPA legislative history that specifically refers to diminution in value
as a part of damages and cites the Ohio decision definition of value,
which includes both direct use and passive use. Further, NOAA believes
that reliable estimates of lost passive use value due to discharges of
oil can be estimated using CV so long as the CV study follows the
standards provided in the proposed regulations. NOAA worked closely
with the Department of the Interior during the development of the
proposed standards for CV in order to ensure consistency between the
two sets of natural resource damage assessment regulations. NOAA
understands that the Department of the Interior will soon propose
identical standards for inclusion in its damage assessment regulations.
NOAA believes that the proposed standards are necessary when CV
surveys are used for natural resource damage assessment, because such
studies will be given a rebuttable presumption in litigation over the
specific amount of money a particular party must pay as compensation
for liability. However, this same level of precision for CV surveys is
not necessarily required for other applications of CV.
In proposing its standards for the use of CV in the damage
assessment context, NOAA has relied heavily on the recommendations of
the Panel. NOAA bases this reliance on the fact that the Panel reviewed
a number of studies and considered the viewpoints of many individuals
in reaching its conclusions.
The Panel's recommendations fall into two categories--those that
should be met to assure reliability and those that must be met.
Regardless of the category in which the recommendations are included,
almost all the recommendations deal with survey design, development and
administration. Because NOAA believes that a properly designed and
administered survey is essential to ensure reliable responses, NOAA has
proposed a number of standards in these areas.
There is also considerable interest in ``performance standards.''
Performance standards would be those tests that can be used to
determine whether reliable measures of passive use value were obtained.
The Panel briefly addresses this issue in its discussion of whether CV
results violate assumed properties of rational choice. The Panel
returns to this area only in the form of one of the five conditions CV
surveys must meet--responsiveness to the scope of the environmental
insult. NOAA proposes a performance standard for this condition, which
is discussed in more detail below.
The standards for passive use value estimation in the proposed rule
cover three distinct aspects of a CV study: (1) Survey instrument
design and development, (2) survey administration, and (3) the nature
of the results. The regulatory standards proposed by NOAA are intended
to provide flexibility to the trustee(s) so that it can take advantage
of new developments that may occur in CV methodology. Further, the
standards are subject to amendment as new research is conducted and
additional knowledge is achieved.
Survey Instrument Design and Development. The reliability of a CV
estimate of passive use value begins with the design and development of
the survey instrument. The proposed rule contains a number of standards
for the design and development of the survey instrument, including
standards regarding the selection of a choice mechanism. Past CV
studies have used different methods to elicit values. These methods
include open-ended WTP questions; bidding cards; and voting formats
typically termed ``referenda.'' In the damage assessment context, the
survey will be offering a public good in one of two forms--prevention
of injury or restoration of the injured resource. NOAA proposes that
the trustee(s) use a choice mechanism and payment vehicle that are both
credible and incentive compatible, i.e., do not impose strategic bias.
The trustee(s) is to use his discretion in selecting the choice
mechanism, and is to document the rationale for the choice and explain
how it is incentive compatible.
However, NOAA would encourage the trustee(s) to consider the
Panel's recommendation to pose the valuation question as a vote on a
referendum. NOAA believes that there are many advantages for using a
voting format for a CV survey for natural resource damage assessment
purposes. NOAA believes that the method of elicitation should be one
with which people are familiar and one which provides a realistic
context in which respondents can choose to increase levels of public
goods. Local jurisdictions and state governments often ask voters to
increase taxes on themselves so that public goods may be increased
(i.e., school bond issues; special assessments for public
infrastructure). Thus, the voting mechanism is both a familiar and
realistic context for individuals to make choices regarding public
goods. Second, in our society, most goods are offered using posted
prices. Asking an individual to reveal his or her maximum WTP for a
good is both unfamiliar and unrealistic. Third, it is important that
respondents should believe that they will receive the program offered
in the CV survey. To CV respondents, the cost of the program naturally
determines the price they must pay. If no set price is offered, the
respondents may perceive uncertainty regarding the program's costs and
therefore uncertainty regarding the provision of the program. Finally,
the voting format is incentive compatible. If respondents desire the
program at the stated price, they must reveal their preference and vote
for the program. Voting against or refusing to vote will only lower the
probability of obtaining the program.
Survey Administration. The most carefully designed CV survey can
produce unreliable results if the survey administration is faulty.
Therefore, NOAA proposes standards for survey administration. For the
most part, the standards specified for survey administration are
similar to those one would expect any high quality survey to meet.
One of the aspects of survey administration dealt with in the
proposed rule is determination of an appropriate response rate. NOAA
proposes that the trustee(s) should obtain as high a response rate as
possible consistent with the requirements of reasonable cost in order
to ensure reliable inferences to the general population. Low response
rates pose a risk of compromising the statistical validity of the
survey when nonrespondents have systematically different passive use
values than respondents. Another risk associated with low response
variance may be significantly affected such that the indicated
confidence of survey results is questioned. Since the likelihood of
this risk cannot be determined unless nonrespondents have been
surveyed, the trustee(s) should minimize nonresponse in the final
survey to the extent practicable. For example, the trustee(s) may
design the survey instrument so that individuals must decide whether to
respond before the exact nature of the environmental insult is
revealed.
Balancing the desirability of a high response rate against cost
considerations, NOAA has proposed that response rates should not fall
below 70%. NOAA is interested in further comments on whether there
should be a specified response rate and, if so, whether 70% is a
reasonable floor.
Another aspect of survey administration addressed in the proposed
rule is selection of the mode of administration. The three generally
used CV survey administration modes are in-person, mail and telephone.
Recently, mixed mode surveys have combined mailed information with
telephone interviews. There are advantages and disadvantages of each
method, and often the selection of the appropriate method is dependent
on a number of factors such as cost, turn-around time, desired response
rate, type of information to be conveyed, use of visual aids, required
population coverage and the ultimate use of the survey results. For
example, telephone surveys can approximate simple random sampling of
households through random digit dialing; can produce fast results; are
relatively easy to administer; and are less expensive than in-person
interviews. On the other hand, visual aids cannot be used; interviews
need to be relatively short; interviewer bias may be involved; and
individuals without telephones are necessarily omitted from the sample.
Self-administered mail surveys are the least costly of the three
methods. However, probability sampling is exceeding difficult;
respondents can review the survey before deciding to participate
(imparting self-selection bias); there can be no random selection
within the household and no control of question sequencing; and a
higher number of incomplete responses are likely to result because
there is no interviewer to motivate the respondent. Finally, in-person
interviews permit random selection of the respondent within the
household; maintain control of question ordering; allow the use of
visual materials; and generate high response rates. In-person
interviews, though, are the most costly method to administer and may
involve interviewer bias. Administration requires complex field
operations and involves the use of many documents and forms (i.e.,
calling cards, interviewer evaluation forms, verification forms). For a
more in-depth discussion of each method, see EPA, ``Survey Management
Handbook,'' vol. II, pp. 24-35, 230/12-84-002, December 1984.
In analyzing the advantages and disadvantages of the use of each
method for CV surveys of natural resource damages, NOAA considered the
Panel's report. In that report, the Panel stated that ``[i]t is
unlikely that reliable estimates of values could be elicited with mail
surveys. Face-to-face interviews are usually preferable, although
telephone interviews have some advantages in terms of cost and
centralized supervision.''
While recognizing that mail surveys can provide invaluable
information for many academic studies and regulatory purposes (e.g.,
U.S. decennial census), NOAA believes that mail surveys at this time
lack certain features that are desirable for use in the natural
resource damage assessment area. In deciding between the use of
telephone and in-person surveys, NOAA suggests that the trustee(s)
consider seriously the use of in-person interviews for the final survey
because of the characteristics of a survey needed for damage assessment
purposes. A CV survey designed for natural resource damage assessment
purposes is likely to impart a large amount of information to
respondents causing interviews to be lengthy and often complex. In-
person interviews offer the opportunity to motivate the respondents and
to hold their interest by providing important information in a
graphical and pictorial format and asking interactive questions
regarding the respondents' understanding and acceptance of key features
of the instrument. It also permits interviewers to record verbatim
responses to important open-ended questions. Such information may be
critical in demonstrating that the trustee(s) has adhered to the
regulatory standards proposed by NOAA.
Even though NOAA recommends the use of in-person interviews for the
final survey, it recognizes that there may be instances where other
modes of administration may be appropriate. Therefore, under the
proposed rule, selection of the mode of administration is left to the
discretion of the trustee(s); however, the trustee(s) must document the
rationale for the selected mode of administration. NOAA anticipates
that this documentation would include a discussion of the factors that
led the trustee(s) to reject use of in-person interviews.
NOAA also encourages the trustee(s) to consider the use of modes of
administration other than in-person interviews during the survey
instrument development stage. For example, a telephone survey may be an
appropriate and cost-effective method to test a design feature such as
question ordering or the understanding of technical terms. Further,
NOAA is interested in comparative empirical testing of other
administration modes, such as random digit dialing for initial
contacts, followed by mailed descriptive information and visual
materials, culminating with a telephone survey. If such testing
demonstrates that other modes can produce the type of information and
results comparable to in-person interviews, NOAA would encourage the
trustee(s) to consider the use of those methods for the final survey.
Regardless of the mode of administration, NOAA proposes that all
surveys be administered by a survey research organization because the
preparation and administration of a general population survey require
practical survey expertise and substantial logistical support. NOAA
also recommends that the trustee(s) select a survey research
organization that has implemented procedures to meet the standards
outlined in either the Council of American Survey Research
Organizations' Code of Standards for Survey Research or the American
Association for Public Opinion Research's Code of Professional Ethics
and Practices. Use of such an organization will help to maintain
reliability and confidentiality. Further, such organizations are likely
to have proven track records and the staff necessary to conduct a
survey in accordance with the proposed regulatory standards.
Nature of Results. In addition to the standards for survey
instrument design and development and for survey administration, the
proposed rule contains a standard for evaluating the results of CV
surveys. The Panel report stated that one indication that a CV study is
unreliable is when respondents show inadequate responsiveness to the
scope of variations in the environmental insult. This statement
suggests that the Panel was concerned that WTP be sensitive to
characteristics of the described natural resource injuries and of
methods of preventing those injuries or restoring the injured
resources. The proposed rule includes a performance standard to address
this concern.
The scope of an environmental insult such as a discharge of oil is
multi-dimensional, where the dimensions are influenced by biological
and social attributes. A discharge can affect all or part of an
ecosystem. Its effects can be short- or long-lived, lethal or
sublethal, geographically contained or widely dispersed. From the human
perspective, the effects of a discharge may be directly visible and
disturbing, or out of sight and perceived only indirectly once there is
knowledge about the loss of natural resources.
In the first phase of the scope analysis, the many dimensions of
the scope of the discharge under investigation need to be identified.
Once the trustee(s) has defined the dimensions of scope deemed to be
important to passive use losses, the trustee(s) shall employ a split
sampling technique where some respondents are provided with an
alternative survey instrument. The trustee(s) begins the analysis with
the primary survey instrument that will be used to estimate the passive
use losses due to the discharge in question. This instrument is
designated the base instrument. It is assumed that the trustee(s) has
pre-tested and performed field pilot tests on the instrument and is
convinced that the instrument meets the design or guidance criteria
laid out in the proposed rule. Analyses performed using incompletely
developed or tested preliminary instruments cannot be considered
evaluations of scope sensitivity because in these situations it is not
possible to distinguish the effects of variations in instrument design
from those effects on respondent decisions of changes in the scope of
injury or the proposed program.
In designing a CV survey instrument, the trustee(s) must determine
the dimensions of scope that are relevant to the discharge under
investigation and decide whether there exists a subset of dimensions
that are important to passive use value or whether all of the
dimensions are linked and therefore equally important. In cases where a
subset is deemed important, the trustee(s) must choose whether to scale
these dimensions up or down in relation to the levels described in the
base instrument and by how much to scale the dimensions. If all
relevant dimensions are to be scaled, the trustee(s) must still decide
in which direction and magnitude to scale each dimension. The
dimensions should be designed to be ordinal in scope, i.e., A>B>C,
unless such ordinal scope is infeasible.
After the trustee(s) has decided on the dimensions to be scaled, in
what direction and by how much, the trustee(s) shall produce second and
third instruments that differ from the base instrument only with
respect to the scope dimensions. NOAA recognizes that the trustee(s)
may choose to scale dimensions regarding the injury description,
dimensions concerning the CV prevention or restoration programs offered
to respondents, or both.
After the scaled instruments are pre-tested, all three instruments
should be employed in a split sample design. Since inferences to the
relevant population will not be part of a scope analysis, true
probability sampling is not required and convenience samples may be
employed so long as random assignment of the two treatments is
maintained. The trustee(s) should endeavor to employ large samples in
these analyses since scope effects may be small and large samples will
be needed to attain the desired 95 percent confidence levels of
statistical significance. The trustee(s) is free to demonstrate
sensitivity to scope using statistical techniques of its choosing;
however, pooling both samples and employing a simple dichotomous
variable (analysis of covariance) framework allowing general
differences in the WTP valuation function will usually be a sufficient
basis for testing. In some circumstances, more complex designs may be
required.
The validity of the scope analysis depends upon the respondents'
perception of differences in the scope dimensions across the three
treatments. It is incumbent upon the CV designer to include questions
that can be used to determine whether the understanding and credibility
criteria laid out in these regulations have been met. This
determination is vitally important and, if it is found to be violated,
the analysis may lead to unreliable results.
The three-scenario approach is not required when the trustee(s)
provides a reasonable showing that it is infeasible due to
considerations of cost or lack of plausibility of the scenarios. In
such circumstances, the trustee(s) may perform the analysis using only
the original scenario and one alternative scenario. However, as CV
surveys of passive values are routinized and their costs fall, the
trustee(s) may find that the three-scenario analysis is feasible in
most cases.
Concern was expressed that differences between the scenarios not be
so large that passing the total value test would be a foregone
conclusion, nor so small that it would be very difficult to demonstrate
statistical differences without extremely large (and costly) split
samples. The issue is complicated by the possibility, based on the
State of Alaska-sponsored study of the Exxon Valdez spill, that a
significant minority of the population may be insensitive to any
reasonable differences in scenarios: some individuals may not be
willing to pay anything for any environmental cleanup, others may be
willing to pay unrealistically high (and invariant) amounts for any
size environmental cleanup. The trustees are to develop procedures for
identifying these people, so that the demonstration that the scenarios
are meaningfully different would rest on the remaining participants. To
accept the scenarios for the total value test, no more than 95% of the
remaining participants may indicate that the differences between the
scenarios are real and meaningful--i.e., that the values of the
respective commodities differ. NOAA is seeking comment on whether it is
feasible to design such a procedure to demonstrate differences in
scenarios, and if not, on alternative schemes to achieve a comparable
goal. For example, the total value test is to be performed on split
samples: how should ``insensitive'' individuals be excluded? If so, how
should the threshold defining ``meaningful differences'' be
characterized? Is it feasible to identify scenario differences also
using a split sample procedure? If not, should the threshold criterion
for determining ``meaningful difference'' be adjusted, since
individuals impose internal consistency on their answers in the face of
direct comparisons (recognizing much finer differences than in split
samples)? Once a procedure has been developed to determine if
individuals are sensitive to the scope of the injury, should this
information be incorporated into the selection of the sample for the
total value test?
While the proposed rule requires a split sample with multiple
scenarios for demonstrating the total value test, NOAA seeks comment on
the option of alternatively using an indirect test to explain variation
in WTP as a function of independent variables, including belief in the
size of the damage scenario, and/or effectiveness of the avoidance
policy. Commenters should consider under what circumstances an indirect
test should be allowed for performing the scope test. An indirect
approach examines the sensitivity to scope indirectly through the use
of a WTP valuation function, relying entirely on the base instrument.
In the context of a single dichotomous choice referendum (or a double
bounded formulation), a WTP valuation function may relate the
probability of a yes vote to a list of variables assumed to underlie
the voting decision (e.g., the amount the household is asked to pay,
household demographics, etc.). The indirect approach may expand this
list to include variables based on information collected from
respondents that are related to the scope dimensions of the discharge.
These measures must be meaningful to the respondent given the
information provided in the survey. For example, a useful question
following the WTP elicitation question is one that asks whether the
respondent believed the injuries caused by the discharge were more
severe or were less severe than described. All other things equal
(i.e., similar preferences, budget constraints, etc.), respondents
believing the injuries to be worse than described, and having equal
confidence in the prospects for restoring the injured resources through
the offered plan, might be willing to pay more. Such a finding would be
an indirect verification of scope sensitivity.
``Calibration''
Estimates of hypothetical willingness-to-pay (WTP) may incorporate
biases in opposite directions. On the one hand, the appropriate measure
of damages is willingness-to-accept (WTA) not WTP, although the former
is not recommended in the proposed rule because of a concern for
limited reliability of current procedures for eliciting WTA. There are
theoretical arguments for why WTA may exceed WTP by a substantial
margin in a natural resource context with relatively few substitutes,
although there is debate on this point. On the other hand, several
experimental studies (of a lower quality survey design than proposed in
this rule) suggest that stated intentions of WTP in CV surveys exceed
observed responses in simulated markets or in solicitations for
charitable contributions. (There is, however, debate as to whether the
simulated markets or charitable contribution solicitations capture
``actual'' WTP in the available studies.)
Because of the various possible biases, a discount factor is
included in the proposed rule to apply to estimated WTP. The proposed
rule gives a default factor of fifty percent for the purposes of
soliciting comment. However, the trustee(s) may adopt a different
calibration factor if it can be shown that a different factor is
appropriate for a specific application of CV. NOAA is asking commenters
to propose other reasonable calibration tests. In particular, NOAA
requests comment on how such calibration could be done consistent with
the framework of these proposed regulations and for the type of public
goods likely to be injured by an oil spill. Commenters should consider
adopting a stringent discount factor while at the same time suggesting
relaxing some of the other standards contained in the proposed rule.
Reporting. Because a well-designed study will include questions
that assist in the interpretation of responses to the WTP elicitation,
the final report should include a breakdown of WTP by various
categories such as income, belief in the scenario, and attitudes toward
the environment. Data from the survey should be retained by the
trustee(s) and ultimately made part of the administrative record once
the trustee(s) considers the survey a public document.
Additional Guidance. NOAA recognizes that implementation of a CV
survey requires decisionmaking about a variety of features, not all of
which are specifically addressed in the standards in the proposed rule.
In many instances, the trustee(s) can turn to established economic
theory and survey research for guidance, but in other instances
economic theory and survey research provide little or no guidance and
reasonable decisions must be based on other criteria. In these
circumstances, NOAA recommends that the trustee(s) follow a
conservative approach. That is, when one is deciding among
alternatives, and economic theory or survey research cannot inform the
decisions, the trustee(s) is encouraged to choose that alternative that
would understate the natural resource damages rather than overstate the
damages.
The following examples are instructive. Suppose the trustee(s)
selects a referendum framework for the elicitation of willingness-to-
pay values from respondents. Using such a framework, respondents might
be asked to vote on a program that would be paid for in a one-time (or
lump-sum) payment, or annually over a period of years. Economic theory
does not generally differentiate between these two alternatives,
viewing each as equally appropriate. However, because it is less
financially burdensome for credit-constrained individuals to make
installment payments than to pay for a good in a single payment,
requiring payment only for a proposed restoration or protection program
in a lump-sum may provide a smaller value than if the same individuals
were asked to pay in installments. In this case, the adoption of a
conservative approach would lead to the use of the lump-sum payment.
Similar decisions involve the selection of photographs for use in the
description of injuries or the proposed prevention or restoration
program in a CV survey. While a picture of dead, oiled sea otters might
accurately depict an injury, NOAA believes that more neutral
photographs would be the appropriate and conservative approach.
Additional examples of conservative design and guidance can be found in
the Response to Comments section of this preamble.
Request for Comments
NOAA requests comments directed toward additional tests for
determining the reliability of CV results that could be considered for
inclusion in a more detailed guidance document. NOAA intends to work
with the Department of the Interior to develop a guidance document on
use of CV to estimate passive use values. This document will provide
additional technical information on possible means of satisfying the
standards contained in the proposed rule as well as other issues
involved in conducting CV studies. In order to evaluate any additional
tests, NOAA requests that commenters proposing such tests address four
issues. First, NOAA requests that commenters provide a complete list of
the behavioral assumptions underlying their theoretical framework of
rational choice. NOAA assumes that all commenters will begin with the
generally accepted axioms of neoclassical consumer choice theory or
revealed preference theory. NOAA requests that commenters clearly state
all further assumptions underlying the test and describe the
sensitivity of the test's results to the assumptions presented. Second,
if commenters are proposing tests that rely on marginal or infra-
marginal changes in the scope of the injuries, the commenter should
define the variation of quantity dimensions of injuries involved in the
test. Third, and perhaps most important, NOAA asks that commenters
demonstrate that any proposed test can be accomplished feasibly within
the CV design and administration standards specified in the proposed
rule. Tests causing CV surveys to violate these design and
administration standards are themselves unreliable tests. Finally, the
commenter should give examples of how these tests would be structured
in the context of an oil spill.
``Prior Knowledge''
The objective of conducting a CV study in connection with these
regulations is to determine the damages suffered by the public as a
result of a discharge of oil into the environment. For consideration of
passive use values, the relevant public may include the entire U.S.
population, or may include a regional subset of the population. Damages
may be sustained by each individual in the relevant public, but only a
small fraction of the public will actually participate in the survey.
The damages an individual suffers from an oil spill depend on many
factors. These include the effects of the spill on the natural
environment, how much the individual uses the services provided by the
injured environment, individual preferences, and the individual's
information about the spill and the world in general.
In conducting the survey, it is necessary to educate the respondent
about the natural resource itself, the facts surrounding a spill and
the impacts of the spill on the environment. This education process
greatly changes the respondent's information set. Upon gaining this new
information, respondents are then asked to place a value on the damages
suffered. There is general agreement that the losses an individual
experiences from the spill after learning the new information are
likely to be systematically different than the losses they would
experience prior to learning the new information. The fact that the CV
method itself actively changes the information set of an individual
prior to valuing the good or service makes it fundamentally different
than other economic valuation methodologies.
Some commenters have questioned whether it is appropriate to
extrapolate value estimates based on post-survey information to the
general population. Given the assessment's objective of estimating
damages to the public at large, the small fraction of the public that
actually participates in the survey, some have argued that the relevant
information set for the purposes of extrapolating to the general
population is the pre-survey information set. One way to move towards
value estimates that reflect the information set of the general public
is to obtain information in the survey itself regarding respondents'
pre-existing knowledge about the resource and injury to it. Regardless
of the value a respondent states after learning information from the
survey, those respondents who were not aware of the resource or an
injury to it or both would be assigned a value of zero. The rationale
for assigning a zero value is that if X percent of the survey
respondents did not know about the resource or injury, then X percent
of the relevant public is likely to be similarly uninformed. (Implicit
is the assumption that individuals who are unaware of the injury at the
time of the survey would continue unaware, but for the survey, for the
foreseeable future.)
Other commenters have articulated the point of view that the level
of respondents' prior information about the injury is irrelevant to the
determination of natural resource damages. The basis for this position
is that the resources being injured are common property resources, for
which governments and Indian tribes are the trustees for the public.
Consequently, to determine fair compensation for injury to property
held in the public trust, the responsible parties should contract to
provide full compensation to all members of the public ex ante, based
on information about expected injuries. By this logic, it is
inappropriate to require that respondents' values only be counted if
they were aware of the injured resources before the survey.
NOAA seeks comments on whether or not it is appropriate to use
information regarding pre-existing knowledge of respondents to reassign
to zero any positive values expressed by individuals who were unaware
of the injuries prior to the survey in the calculation of natural
resource damages. Commenters who believe that it is inappropriate to
assign zero damages to individuals with limited prior knowledge should
articulate their rationale for using the post-survey information set to
extrapolate damages to a public that only has pre-survey information.
``Screening or Threshold Factor''
Because of a concern by many commenters that CV surveys may be
undertaken in damage cases where expected damages may be too small to
justify the costs of the CV survey, NOAA is seeking comment on the
concept of a screening factor the trustee(s) should apply in deciding
whether to conduct a CV survey in a particular case. Factors currently
limiting the use of contingent valuation include the high costs for
surveys to meet the proposed requirements, trustee budget and staff
limits, trustee desire for speedy judgment to enable expeditious
restoration activities, and the procedures necessary to justify a
Comprehensive Damage Assessment (the only assessment procedure
incorporating contingent valuation surveys). To employ an additional
screening factor, expected damages might be estimated using a small
sample with protocols designed to minimize survey costs and, therefore,
not necessarily subject to the standards contained in this rule.
Alternatively, expected damages might be estimated by scaling damages
estimated in other contingent valuation studies. Other methods may be
possible. Several/possible thresholds have been suggested. These
possibilities include setting the threshold for a particular case at
the greater of twice the expected cost of a full CV survey or the
product of multiplying $5.00 per household by the number of households
expected to hold passive values for the resource of concern. NOAA is
specifically seeking comment on the concept of setting such a screening
factor and, if so, what form such a factor might take, and whether it
should apply to total damages or only to passive use losses.
2. Alternative methods--a. Benefits transfer approach. Given the
expense and time associated with designing and implementing site-
specific studies or models to value resource services, ``benefits
transfer'' may be a reasonable alternative method to determine interim
lost values. Benefits (or valuation) transfer involves the application
of existing valuation point estimates or valuation functions and data
that were developed in one context to address a similar resource
valuation question in a different context. Benefits transfer provides a
less time consuming and less expensive procedure than original
valuation analysis, but may not provide as accurate results.
Where resource values exist that have been developed through an
administrative or legislative process, the trustee(s) may use these
values, as appropriate, in a benefits transfer context. An example of
such values is found in the approach to use in estimating recreational
benefits given in Chapter II, Section VIII, Appendix 3 (pp. 83-87) of
Economic and Environmental Principles and Guidelines for Water and
Related Land Resources Implementation Studies; U.S. Water Resource
Council, February 1983. Other values may be used so long as three basic
issues are considered in determining the appropriateness of their use:
the comparability of the users and of the natural resource and/or
service being valued in the initial study(ies) and the transfer
context; the comparability of the change in quality or quantity of
resources and/or services in the initial study and in the transfer
context (where relevant); and the quality of the study(ies) being
transferred.
It may be possible in some contexts to tailor the results from a
prior study to the site of the discharge by transferring or creating a
valuation function characterizing willingness-to-pay as a function of
socioeconomic, demographic, or discharge characteristics. Where data
from the site of the discharge are available, the valuation function
may be used to calculate site-specific resource values.
Comparability of the Resource/Services
To evaluate whether existing data are sufficiently similar to the
conditions of a particular assessment to allow a benefits transfer, the
trustee(s) should consider at a minimum the following questions: Are
the markets for the services in the original study similar to those
services being valued, in terms of size of the user population and
availability of substitutes? Does the existing study consider the same
or a similar geographic area in terms of demographic and socio-economic
characteristics? Were baseline environmental (and other) conditions in
the existing study similar to baseline conditions in the case at hand?
Did the existing study address a specific or unique problem that may
have influenced the magnitude of the estimates obtained? Have general
attitudes, perceptions, or levels of knowledge changed in the period
since the existing study was performed in a way that would influence
the value of the benefit estimate? If the value being considered is for
a generic resource category (e.g., common song birds), are the species
considered in the original study relevant to the case at hand?
Comparability of the Change in Quality or Quantity
To evaluate the comparability of the changes in quality or quantity
of resources and/or services in the existing study and in the incident
of concern, the trustee(s) should consider at a minimum the following
questions: Was the original analysis conducted to value all organisms
of a given species, a sub-population, individual members of the
species, or some other grouping? Is this level of analysis suited to
valuing injuries at the site(s) of impact? Is the discharge-related
change in the resource and/or service in question within the range of
changes valued in the original study?
Quality of the Study
To evaluate the quality of the existing study, the trustee(s)
should consider at a minimum the following questions: Was the initial
study based on proper survey design and sampling procedures, sound
economic analysis, and appropriate statistical techniques? Was the
study peer reviewed? If current ``best practice'' was not used to
generate the value estimate(s), can the estimate(s) be adjusted to
reflect changes in the state-of-the-art?
In all cases the trustee(s) should evaluate all available estimates
and/or valuation functions, based on the factors described above, to
determine which are the most appropriate for benefits transfer.
Consideration should be given to the range of value estimates generated
from alternative methods. If the value estimates in the relevant
studies differ significantly, or if values generated using alternative
models within the same study differ significantly from one another,
consideration should be given as to whether the values differ in a
predictable and consistent manner. Such predictable variation may
indicate that a more selective choice of studies or models would be
appropriate for the specific context.
It is recommended that use of benefits transfer by the trustee(s)
in a natural resource damage assessment be predicated on guidance from
the professional and academic economics community on the current
minimum conditions for quality assurance of the benefits transfer.
The Economic Analysis and Research Branch of the U.S. EPA, Office
of Policy Planning and Evaluation has prepared a data base,
Environmental Economics Database, of some of the existing natural
resource or environmental resource valuation studies that are available
to the trustee(s). This database may be obtained from the Economic
Analysis and Research Branch, Office of Policy Planning and Evaluation,
U.S. EPA.
b. Habitat or Species Replacement Cost Method. Alternatively, the
habitat or species replacement cost methodology may be used to estimate
damages for lost services from injured habitats and/or biological
resources. This method is suitable for use when the trustee(s)
determines that the human services provided by the habitat or species
are difficult to quantify. This method involves estimating damages in
terms of the cost of obtaining from alternative sources the equivalent
of the value of services diminished by the injury until full recovery
of the resource and/or services. The recovery process may occur through
natural recovery or may be expedited or enhanced by human intervention.
If full recovery is not expected to occur, then the ``interim'' loss in
services continues in perpetuity. Depending on the nature of the
injury, damages may be calculated as the cost of replacing individual
species or of replacing entire habitats that support multiple species
and provide a variety of resource services. This methodology provides a
practical alternative to the sometimes difficult estimation of consumer
value in the valuation methods identified above.
In order to ensure that the scale of the compensatory restoration
or replacement project(s) on which the cost calculation is based does
not over- or under-compensate the public for injuries incurred, the
trustee(s) must establish an equivalency between the present discounted
value (PDV) of the quantity of lost services and the PDV of the
quantity of services provided by the replacement project(s) over time.
The trustee(s) is to incorporate a factor reflecting any differences in
the efficacy of replacement habitat or resources in providing services
from that of the injured habitat or resources in absence of the injury.
If the value of the additional units of services provided by the
replacement project is expected to be reasonably comparable to the
value of units of services lost due to injury, then equivalency may be
established by comparing total services without actually estimating a
dollar value of those services. However, the values may not be
comparable, for example due to changes in the scale of total services
or the temporal pattern of replacement services. In this case, an
adjustment factor reflecting the relative values should be included in
the calculation of equivalencies. Alternatively, another measurement
technique may be employed.
It may be useful to consider a specific scenario where the habitat
or species replacement cost method might be used. If ten acres of a
habitat were completely destroyed and no recovery is expected through
natural processes or restoration activities, the goal of the
restoration program would be to provide a replacement project
equivalent to the lost ten acres of habitat. However, since the
replacement project may not provide baseline levels of services for
several years at a minimum, the public will experience interim lost
services for which they are entitled compensation. Additional acres
will need to be replaced to make the public whole.
In another context with ten injured acres of habitat, the resources
and services may recover fully in five years with natural recovery, and
this may be the most appropriate recovery option. In this instance,
there will be no formal restoration program for this resource, but the
compensation for the five years of losses prior to full recovery can be
calculated in terms of the costs of a compensating restoration program.
Such a program might consist of acquisition and creation or enhancement
of habitat to provide a flow of services equivalent to the lost
services equivalent to the lost services.
Establishing the resource equivalencies necessary to ensure the
proper level of compensation is a four-step process. First, the
trustee(s) must quantify a total discounted measure of lost services
over the full duration of the injury, taking into account the extent to
which the resource and/or service will recover over time. These lost
services can be expressed in a resource-time measure, such as lost
``acre-years'' of services provided by an oiled wetland, where an acre-
year of services is the total level of services provided by one acre of
wetland over the course of a single year. Factors to be considered in
quantifying the level of services lost include, but are not limited to:
The severity of the initial injury (i.e., did the injury result in a
full or partial loss of services); the duration of injury; and the rate
of recovery of services.
The second step in establishing resource equivalency is to
determine the total discounted measure of services provided by the
proposed restoration or replacement projects over the full life of the
relevant habitat or species. Again, these services may be expressed in
a resource-time measure, such as acre-years. Factors to be considered
in quantifying the level of services provided include, but are not
limited to: the productivity of the replacement resource relative to
the productivity of the injured resource but for the discharge; the
amount of time required for the replacement resource to reach its
maximum productivity level; and the life-span of the replacement
resource. If the value of additional units of services provided by the
restoration project is not comparable to the value of lost services,
then an adjustment factor reflecting the relative value should be
included in the calculation of equivalency.
In the third step, the trustee(s) calculates the appropriate scale
of the replacement project(s), such that the total discounted value of
services provided by the replacement project is equivalent to the total
discounted value of interim lost services due to the injury. The final
step consists of the determination of replacement costs. Total
replacement costs are obtained by multiplying the scale of the project
(e.g., number of acres of wetlands to be created) by the unit cost of
restoration or replacement, including acquisition, construction,
maintenance, and monitoring costs. These unit costs can be obtained
either from existing literature values or from experts in the field.
IV. Implementation Guidance on Calculating Compensable Values
A. Committed Use
As stated in the proposed rule, damages are recoverable for all
committed uses of injured natural resources and/or services. For the
purposes of this proposed rule, committed uses include: (1) Any direct
or passive use of the injured natural resource and/or service available
to the public but for the discharge; and (2) any documented planned
future use. The concept of committed use is intended to avoid recovery
for purely speculative uses of injured resources and/or services. Any
future use is considered a committed use if it is adequately documented
through such things as permit application, purchase or investment
agreement, engineering or architectural plans, etc. Because there are
no behavioral records comparable to those that exist for direct uses,
documentation of committed use is not required for valuing passive use
losses and option values claimed under OPA as well.
B. Willingness To Accept and Willingness To Pay
Humans derive both direct use and passive use values from the flow
of services provided by natural resources. If the quantity or quality
of a service is reduced or eliminated by a discharge of oil, the
measure of damages to an individual is the change in the individual's
utility or level of well-being, as measured in monetary terms. Economic
analysis provides two exact monetary measures of any change in an
individual's well-being: Willingness-to-pay (WTP) and willingness-to-
accept (WTA). Given the occurrence of a discharge of oil, WTP would
measure the individual's willingness-to-pay to have avoided the injury;
WTA would measure the amount the individual would require in order to
be as well off (i.e., to have the same level of utility), given the
injury occurred, as before the injury. To calculate the monetized
change in an individual's WTP or WTA resulting from a resource injury,
net willingness to pay or willingness to accept is calculated. Net
willingness to pay or willingness to accept is total WTP or WTA minus
the costs an individual incurs to use the resource services, including
travel and time costs.
An approximation for the exact measures of the change in utility or
well-being is the Marshallian ``consumer surplus,'' the value of which
is between WTP and WTA. Marshallian consumer surplus is the difference
between the maximum sum of money an individual would be willing to pay
for a good or service, as calculated from a Marshallian demand
function, and the amount the individual is actually required to pay.
The Marshallian consumer surplus is calculated directly from observed
behavior in market or market-like transactions. This measure of value
of a good or service incorporates the income effects of changes in its
price or quality; for example, a reduction in price or an increase in
quality would have the effect of increasing real buying power. As a
result, Marshallian consumer surplus does not measure value from a
fixed baseline level of utility. In contrast, the exact measures of WTP
and WTA are so labeled because they calculate the monetized change in
utility or well-being from a fixed baseline level of utility.
The choice as to which criterion is more appropriate in a given
context depends upon the allocation of the property rights. Because the
government is holding natural resources in trust for the public, the
WTA criterion is more appropriate as the measure of damages. The
conventional wisdom in the academic literature regarding changes in the
price of a commodity indicates that WTP and WTA are likely to be fairly
close in value, with the difference depending directly on the size of
the income elasticity of demand for the commodity whose price changes.
However, it has recently been shown that in this context where the
quality of public goods or services is reduced due to injuries caused
by a discharge, the difference between WTP and WTA may be substantial
if the public goods have few substitutes.
In some circumstances it may be infeasible or impractical to
provide reliable measures of WTA. In those circumstances, the more
conservative measures of WTP or the Marshallian consumer surplus are
appropriate for measuring damages. For example, WTA is very difficult
to elicit from respondents in CV studies, and consequently may create
greater empirical uncertainties than eliciting WTP. At present,
recognizing that WTP provides a lower-bound estimate of WTA (for normal
goods), NOAA recommends that the more conservative WTP criterion be
elicited in CV studies at present. For the methodologies in which exact
welfare measures, providing the monetized changes in individual
utility, can be derived from the Marshallian models through analytical
techniques, WTA and WTP measures are of equal reliability. In those
circumstances, WTA should be used where feasible and practical.
C. Substitutability
In calculating the diminution of value, the availability of
substitute resources and/or services should be taken into account. For
example, substitutes may exist for individuals who have lost or
diminished use of a resource and/or service, such as a recreational
site. Generally, the fewer substitutes available for a particular
resource and/or service or the poorer the match of attributes between
the injured and substitute sites, the greater is the lost value to the
public. However, though substitute sites may exist, congestion at these
sites will increase as they absorb displaced participants from the
injured site. Consequently, the quality of the recreational experience
at the substitute sites may deteriorate due to the discharge. Potential
effects of congestion on reducing quality at alternate sites should be
taken into account in the damage calculation.
Incorporating the availability of substitute resources and/or
services, for example in recreational demand models, may increase the
cost and complexity of a damage assessment. Therefore, the additional
cost and complexity should be undertaken only if the probable benefits
from an increase in accuracy of the damage estimate are greater than
the probable increase in damage assessment costs.
D. Uncertainty
Uncertainty regarding the predicted consequences of restoration
options and predicted supply and demand of natural resources and/or the
services they provide should be addressed in the economic analysis of
restoration alternatives and determination of diminution in values and
documented in the Report of Assessment.
E. Discounting
In calculating natural resource damages, the trustee(s) should
discount the three components of a claim: (1) Interim lost value of
injured resources pending full recovery, also referred to as
compensable values; (2) restoration costs; and (3) damage assessment
and restoration costs already incurred. Discounting is a widely used
economic procedure that allows the trustee(s) to convert past and
future damage sums to current dollars. (Discounting expenditures from
the past to the present is also referred to as capitalizing or
compounding forward past expenditures.) This conversion is necessary
for the trustee(s) to be able to present a claim for a ``sum certain.''
NOAA recommends that the trustee(s) use the U.S. Treasury borrowing
rate on marketable securities of comparable maturity to the period of
analysis to discount each of the components. The reference date for the
discounting calculation is the date at which the claim is presented.
Note that discounting the components of the claim is separate from
calculating the pre-judgment interest. Section 990.14 of the proposed
rule, as required by section 1005(b) of OPA, provides for pre-judgment
interest and post-judgment interest to be paid at a commercial paper
rate, starting from 30 calendar days from the date a claim is presented
until the date the claim is paid. (For a discussion of pre-judgment
interest see the earlier preamble discussion of Sec. 990.14 of this
proposed rule.)
Logical consistency requires that the analysis be conducted either
in terms of nominal values or in constant dollars. The nominal Treasury
rate shall be used if the components of the claim are denominated in
dollar values of the year a loss or expenditure is to occur (i.e., in
nominal terms). Otherwise, if components of the claim are denominated
in constant dollars (of the discounting reference year), then real
Treasury rates are to be used. The real rates are calculated by
removing expected inflation over the period of analysis from nominal
Treasury interest rates. To characterize expected inflation, NOAA
recommends the trustee(s) use the Administration's assumption about the
rate of increase in the Gross Domestic Product deflator for the period
of analysis (as reported in the Budget of the President). For projects
or programs that extend beyond the six-year budget horizon, the
inflation assumption can be extended by using the inflation rate for
the sixth year of the budget forecast. The logic of the choice of the
U.S. Treasury rate is discussed for each component of the claim in turn
below.
1. Compensable values. The compensable values component of the
damage claim reflects the lost consumer surplus, lost fees, and lost
economic rent (that could have been charged by the government for use
of a public resource) resulting from injuries caused by the discharge.
The losses may occur from the time of the discharge over many years
into the future. To value these losses, the trustee(s) must determine
how much compensation consumers would require as of the date of the
claim presentation to make them as well off as they would have been,
but for the discharge. Because the purpose of the litigation is to make
the public whole, the relevant discount rate is the consumers' rate of
time preference, which is the rate of interest at which an individual
would be indifferent between consuming goods or services in the present
and postponing consumption to a later date.
Market interest rates available to consumers provide an estimate of
the consumer rate of time preference for lost services. To identify the
discount rate that reflects the ``pure'' time preference, one looks to
the yield on a ``safe'' investment with little or no default risk, such
as the U.S. Treasury rate.
2. Estimated restoration costs. Most restoration projects will be
carried out over a period of years. The effectiveness and ultimate
success of a restoration strategy depends on the ability of the
trustee(s) to conduct restoration activities until the resource
recovery is complete, including post-construction maintenance and
monitoring operations. If funds are insufficient to cover the full
costs of restoration, natural resource recovery will be incomplete or
will be further delayed, and the public will be deprived of full
compensation for the injuries. The recommendation that trustee(s) use
the U.S. Treasury rate for marketable securities of comparable maturity
to the period of analysis is predicated on the assumption that this
rate of return is available to the trustee(s) for investment of
settlement monies.
If legal and/or institutional constraints prevent investment of
settlement monies yielding the U.S. Treasury rate, then it is incumbent
upon the trustee(s) to structure the damage claim to ensure that
sufficient funds will be available to fund the entire set of
restoration activities. One option is to calculate the discounted value
of this component of the claim, using an alternative discount rate that
represents the yield on settlement monies available to the trustees. An
alternative option is to structure a multi-year schedule for claim
payments to ensure it provides the cash flow for each year required for
planned expenditures.
3. Past Costs Incurred. The third category of damages is damage
assessment and emergency restoration costs, which may have been
accruing from the time of the discharge. To calculate the present value
of these costs at the time the claim is presented to the RP, the
trustee(s) will discount forward (also referred to as capitalize or
compound forward) the costs already incurred. Note that if the trustees
are discounting damages denominated in the year the claim is presented
(i.e., constant dollars) using a real Treasury rate, then expenditures
from previous years must also be translated to dollars of the claim
year using an appropriate inflation index, prior to discounting (or
compounding forward). Because the rate of interest employed as the
discount rate for past costs incurred should reflect the opportunity
cost of the money spent, NOAA recommends the U.S. Treasury rate for
discounting this component of the claim as well.
U.S. Treasury bond rates may be found in the Federal Reserve
Bulletin, issued monthly, or the Treasury Bulletin, issued quarterly.
The Gross Domestic Product fixed-weighted price index may be found in
the Survey of Current Business, issued monthly, and the Economic Report
of the President, issued annually. The Administration prediction for
future Gross Domestic Product deflators (for translating the nominal
Treasury rates to real terms for future years) is updated twice
annually at the time the budget is published in January or February and
at the time of the Mid-Session Review of the Budget in July. The
current Treasury rates and inflation adjustment assumptions are
reported in regular updates of Appendix C of Circular No. A-94,
available from the OMB Publications Office (202-395-7332).
Response to Comments
``Value of a Claim''
Comment: Commenters were divided over interpretation of the meaning
of ``diminution of value'' within the natural resource damage
assessment context. Some suggested that there was no clear indication
provided, either by the courts or the Congressional Conference Report,
as to the intent within CERCLA and OPA concerning measurement of
diminution of value. Others disagreed, finding specific guidance on
this matter. Two commenters quoted the ruling by the court in Ohio v.
DOI to mean that values should not be limited to strictly consumptive
use values, but also should include non-consumptive use values.
Response: NOAA finds that there is ample evidence, from the
Congressional Conference Report (H. Conf. Rep. No. 653, 101st Cong., 2d
Sess. at 108), and the D.C. Circuit Court decision on Ohio v. DOI, to
believe that ``diminution of value'' refers to the standard for
measuring resource damages cited in the D.C. Circuit Court decision on
Ohio v. DOI. This opinion defines ``use values'' broadly, to encompass
both direct use and passive use values that can be reliably measured.
Failure to include all relevant categories of damages in a claim would
understate the true loss to the American public attributable to a
discharge of oil. NOAA concurs with commenters that recoverable losses
include direct consumptive use losses (for example, to hunting or
fishing activities), direct non-consumptive use losses (for example,
bird watching or swimming activities), and passive use losses (for
example, existence values).
Comment: Some commenters argued that passive use values should be
included in damage assessment, because exclusion would understate the
true cost of exposing natural resources to environmentally risky
activities and induce systematic reallocation of environmentally risky
activities to those environments that generate greater passive use
values relative to direct use values. Another commenter stated that if
passive use values are not considered in the determination of total
value of the resource, it is more likely that the cost of restoration
will be inappropriately characterized by the RP(s) as ``grossly
disproportionate'' to the value of the resource being restored.
Other commenters contended that in some cases the cost of trying to
measure the passive use losses may well exceed the potential total
value of passive use damages, and hence the effort would not be
worthwhile and would violate the reasonable cost test.
Response: As previously stated, under OPA, and in accordance with
the Ohio decision, passive use values are a component of compensable
values that are necessary to compensate fully the public for its losses
resulting from a discharge and to return the public, as nearly as
possible, to the level of well-being it enjoyed before the discharge.
By determining total compensable value, the natural resource trustee(s)
avoids serious resource misallocation effects. When the true value of
the loss is positive, but not known with certainty, the use of zero as
a measure of that positive loss will be in error, creating downward
bias in the damage estimate by understating the true social loss. The
result of such a systematic bias will be: (1) Smaller than appropriate
recovery for, and thus investments in, restoration, rehabilitation,
replacement, or acquisition of equivalent resources; (2) smaller than
appropriate investments in spill prevention, mitigation, and clean-up
technology; and (3) more intensive use of the natural resources of the
nation than appropriate. Thus, it is important that the total
compensable value be determined to rebut an argument that the cost of
restoration is grossly disproportionate to the value of the resource
being restored. However, as discussed earlier in this preamble, NOAA is
not adopting a strictly quantitative approach to the grossly
disproportionate determination. Rather, a number of qualitative factors
must also be considered.
The decision to include passive use value estimates as part of
total value in a damage assessment should be predicated upon the
probable magnitude of passive use losses associated with a specific
discharge, as well as on the specific attributes of the injured natural
resources. If the expected value of the passive use loss is small
relative to the cost of estimating it, then its inclusion in the damage
assessment may not be justified.
Comment: A number of commenters asserted that passive use value
damages should only be assessed for permanent or long-lasting injuries
to unique natural resources--atypical conditions for discharges of oil.
They argued there is no need for compensation for lost passive use
values when the resource will fully recover and when compensation will
be paid for direct use losses pending restoration. They further argued,
even when significant lost use values are present, the potential for
significant lost passive use values is not very great. One commenter
stated that this criterion applies most obviously in the case of
bequest value when resources will be restored in a reasonable time
frame and so future generations will not be denied the bequest. One
commenter stated that there is no credible evidence that inherent or
existence values are likely to be significant even if the resource is
unique and non-reproducible and the injury is irreversible.
Response: NOAA has found no empirical evidence to suggest that a
natural resource must be unique (i.e., have few substitutes), non-
reproducible and/or permanently injured in order to have significant
passive use values. NOAA recognizes that in cases involving temporary
injury, individuals may not experience a significant sense of loss
because the resource's existence is not permanently threatened.
Further, after restoration, rehabilitation, replacement, and/or
acquisition of equivalent resource, the resource will be available for
future use and may be left as a legacy to future generations. However,
there are cases where the death of individual members of a species may
cause a significant loss in passive use values even though species
levels may return to baseline. While complete recovery of an injured
resource or service may result in lower passive use losses than
otherwise, there is no evidence to suggest that compensable passive use
losses do not exist in the interim pending recovery. The extent and
magnitude of the losses will depend on the restoration alternative
chosen, biological and ecological factors, including availability of
substitute resources, and the type and extent of the original injury.
Comment: Several commenters expressed concern as to whether
``option values'' and/or ``existence values'' could be affected by a
discharge, if the injured natural resources were ultimately restored
through natural recovery or restoration. One commenter suggested that
option values arise because of uncertainty about future availability
and future demand for the resources in question. Thus, the shorter the
elapsed time between injury and restoration, the less such uncertainty
will matter. Similarly, several commenters suggested that passive use
losses may be small or insignificant in situations where the loss in
services is only for a short period of time until restoration or
natural recovery is completed. Therefore, there is no reason to include
passive use losses in a natural resource damage assessment.
Response: Regardless of whether complete recovery occurs naturally
or through human intervention (i.e., restoration), there may be a loss
or diminution of passive use values during the time period from the
injury through recovery. For example, in the case of ``option'' value,
the precise timing of a decision to exercise the option to use the
resource may be unspecified, therefore the potential for access must be
continuously available to maintain the full value of the option. Absent
the uninterrupted opportunity to exercise the option to access the
resource, the ``option'' is diminished and a loss accrues. Likewise,
even when complete restoration to baseline conditions is possible,
during the time between injury and recovery, the resource, as defined
prior to the discharge, effectively does not exist. Therefore,
existence value may be diminished. In addition, individuals may
experience a loss in well-being because animal deaths occurred through
anthropogenic causes. The size of passive use value losses is an
empirical question that can only be answered with further empirical
studies in these cases.
Comment: One commenter noted the difficulty of disaggregating total
values into direct use and passive use components.
Response: NOAA believes that a consensus is emerging in the
economics community that the appropriate conceptual approach for
valuing natural resources is to measure the total value of the
resource, which includes both direct use and passive use values.
Contingent valuation is the only methodology currently available to
provide estimates of combined direct use and passive use value. When
other valuation studies are included in a damage assessment along with
a CV study, the total damages are to be calculated in such a way as to
avoid possible double-counting for compensable values between estimates
from the contingent valuation study and from the direct use valuation
study(ies).
Comment: Several commenters noted that OPA prohibits double
recovery in the damage assessment claim. They claimed that CV as
currently applied results in double recovery.
Response: NOAA believes that direct use and passive use losses are
additive and the inclusion of each in the damage assessment does not
result in double recovery. However, the potential for double recovery
does exist when a CV study and a direct use study both elicit direct
use values in the same category in samples covering the same
usergroups. For example, if the trustee(s) considers use of both CV-
based and travel cost method-based estimates of the value of
recreational fishing losses, double recovery could occur if the
relevant CV study elicited total value of the resource and its sample
included recreational anglers. Double recovery can be avoided through
careful preparation of the damage claim.
Comment: One commenter suggested that CV cannot be justified on the
grounds that it is necessary to provide incentives for deterrence of a
discharge, without a careful analysis of the entire system of
regulations and other incentives that a potential RP faces.
Response: As discussed earlier, OPA's incentives to avoid
environmental injuries are dependent upon knowing what the potential
liability from discharges is likely to be. Without the availability of
CV as an assessment tool, that full potential liability cannot be
estimated.
Comment: A number of commenters discussed passive use values--some
questioning the inclusion of such values by suggesting that they are
poorly defined while others felt that such valuation has no relevance
because the environment is priceless. Other commenters supported
inclusion of passive use values.
Response: NOAA notes that there is a general consensus in the
economic community that passive use values exist; there is no basis in
economic theory to suggest otherwise.
Comment: One commenter noted a continuing debate over defining
passive use values. The commenter suggested that any judgment on the
definition of passive use values in the rule is premature. Rather, the
rule should allow analysts to make use of emerging, state-of-the-art
theories and techniques for defining and measuring passive use values.
Response: NOAA believes that passive use values are well-defined
and are an appropriate component within a damage assessment
determination of compensable values. To facilitate consistent usage,
NOAA defines passive use values in the definition section of subpart A
of the proposed rule. As stated in the preamble, the proposed rule
allows the trustee(s) broad discretion in the selection of valuation
methods specifically to allow for the use of new methods of valuation
as they become recognized and accepted in the economics profession.
Comment: A number of commenters contended that the relevant law,
the Ohio decision, and the precedents do not require that passive use
value damages be calculated by CV or any other methodology and that
nothing in OPA mandates use of CV to impose liability for potential
impairment of passive use values.
Response: NOAA believes that the Ohio decision should be considered
in this rulemaking because the natural resource provisions of OPA are
patterned after those of CERCLA. In that decision, the circuit court
upheld CV as an allowable method for calculating passive use damages.
The trustee(s) has the discretion to use CV where appropriate.
Comment: One commenter stated that if NOAA does not recognize the
practical limits on the ability of the marine industry to insure
against speculative losses, the result will be awards that the industry
cannot afford to pay. Similarly, other commenters noted that the
financial resources of the insurance market and individual shipowners
should govern the size of recoverable claims under OPA.
Response: NOAA disagrees. In the statutory language of OPA, the
Congress of the United States established a standard of strict
liability and the objective of full compensation for all attributable
loss. NOAA does not have discretion to change these requirements and
substitute others.
Further, NOAA believes that economic theory supports a
comprehensive definition of the social cost of a discharge when
identifying cost elements to be included in an assessment.
Alternatively, if damage claims systematically understate the size of
compensable losses resulting from discharges of oil, society will
underinvest in preventing damages from future discharges.
Comment: Numerous commenters indicated that damages under OPA
should be compensable, not punitive.
Response: NOAA concurs that natural resource damages under OPA are
compensatory rather than punitive.
Comment: One commenter stated that the existence of substitute
sites in an evaluation of lost resources becomes irrelevant if the
damage was caused by negligence.
Response: NOAA believes that there is no theoretical reason to
separate the estimation of damages caused by negligence from those
which were not. (The discussion of how to treat substitutability among
resources appears below.)
Comment: Several commenters suggested that a trustee(s) should be
required to select the ``minimum social cost'' restoration alternative,
including natural recovery, when selecting a restoration approach.
Response: NOAA disagrees that this will be true for all cases.
These commenters are essentially recommending that NOAA adopt the
``lesser-of'' rule contained in the natural resource damage assessment
regulations promulgated by DOI, and rejected by the court in Ohio v.
DOI. This rule specified, in essence, that the trustee(s) should choose
to do restoration projects only if restoration costs were less than the
interim lost value avoided by the restoration project. Consequently,
cost-effectiveness and benefit/cost comparisons are factors in
restoration alternatives analysis, as outlined in subpart G of the
draft regulations and in the Restoration Guidance Document, but are not
the sole factors to be applied in choosing among competing restoration
alternatives.
Comment: A few commenters suggested that the value of the claim
should be the cost of the most cost-effective restoration alternative.
Response: NOAA disagrees. Section 1006 of the OPA Conference Report
(H. Conf. Rep. No. 653, 101st Cong., 2d Sess. at 108 (Aug. 1, 1990))
provides a clear mandate to NOAA to ``establish a system for assessing
damages to natural resources, including a measure of damages equal to
the costs of restoration, replacement or acquisition of equivalent
resources, and the diminution in value of those resources pending
restoration'' (emphasis added). Moreover, the appropriate restoration
approach to include in a damage claim may not be the one that is most
cost-effective because the trustee(s) must consider a number of factors
when selecting restoration options. It is important to note that cost-
effectiveness only allows ranking of alternatives that accomplish the
same increase in services at the same rate over time. Other criteria
are necessary to compare alternatives that accomplish different
outcomes.
Comment: Some commenters indicated that actions taken by the RP(s)
in connection with a discharge may be beneficial to the environment
and/or the local economy and thus should be considered as an offset to
damages resulting from the discharge. For example, one commenter argued
that passive use and/or nonmarket losses should not enter into damage
assessments because for every category of persons suffering a loss as a
result of a natural resource injury, there will be other individuals
who gain. Other commenters said that such ``offsetting'' is not
authorized by OPA and that the trustee(s) must not consider any such
actions.
Response: NOAA agrees that offsetting public damages against
private gains is not authorized by OPA. The scope of a natural resource
damage assessment is limited to the losses to the public due to injury
to public trust natural resources--losses that are not actionable under
private actions. To the extent that some actions taken by the RP(s) may
mitigate the injuries to the environment and speed restoration of the
resources, the impacts will be lessened, as will the damages;
consequently the size of the damage claim will be smaller than it would
have been if the RP(s) had not taken the mitigative actions.
However, damage claims brought by public trustees do not include
the positive or negative effects on private parties, such as reduced
income accruing to local recreation-related businesses due to declining
tourism or increased income to spill response firms. Further, to the
extent that such expenditures are simply shifted from one location to
another, the gain of businesses in one location is the loss of
businesses in another and the net effect on the private parties
throughout the whole country is essentially zero.
Comment: Several commenters were concerned about ``double
counting'' or ``double recovery'' within the damage assessment process.
Each observed that OPA does not allow double recovery of damages, and
proposed that the NOAA rules explicitly disallow such claims.
Response: NOAA agrees that no double recovery is permitted under
OPA.
Comment: One commenter raised the issue of ``rents'' within the
compensable claim. One commenter recommended that the regulations state
that the trustee(s) cannot collect forgone resource rents accruing to a
private party(ies), even if that rent is generated from the private
party's use of public resources.
Response: NOAA does not concur. In the event of a discharge covered
under OPA, the trustee(s) is entitled to recover from the RP(s) the
total diminution in value of lost or diminished services from affected
public trust resources that is not recoverable by a private party. One
part of the diminution in value of affected resources is the resulting
reduction in economic rent, which represents the fee or price the
trustee(s) could charge for use of the public trust resource. The loss
in value created by the public resource occurs whether or not the rent
was collected from the private parties before the discharge. Unless
such rents are recovered under a private action, the trustee(s) is
entitled to recover them.
Comment: A number of commenters suggested the OPA rules should
exclude recovery of damages for injury to privately owned natural
resources, or that recovery should be limited to those natural
resources in which the government has a dominant interest.
Response: NOAA agrees that recoveries for injuries to private
resources shall not be included in any estimate of the public damage
claim under OPA, and shall be accomplished through private causes of
action. NOAA recognizes, however, that trust resources (e.g., birds)
can use private resources (e.g. land). To the extent that an injury to
a privately-owned natural resource causes injury to a trust resource,
the trustee(s) can recover for the injuries to the trust resource.
Comment: One commenter noted that aesthetic injury should be
considered in addition to physical impacts. The long-term assessment
should account for impacts, too.
Response: NOAA believes that, if the aesthetic injury affects the
physical experience of users or affects passive use values, then by
definition this is a compensable loss.
``Valuation Methodologies''
Comment: Several commenters reflected the position that, because
each discharge and the injury it causes are unique, no single procedure
or standard economic equation could or should apply to all situations.
One of these commenters recommended that an analyst should have the
flexibility to examine each valuation problem on a case-by-case basis,
and determine which type of valuation technique is likely to generate
the most valid and useful results.
Response: NOAA agrees that flexibility in the determination of
assessment procedures is important. NOAA is therefore providing four
alternative assessment procedures from which the trustee(s) may choose.
In addition, parallel assessments, in which the valuation of damages
for one incident employs different assessment procedures, are permitted
under OPA provided there is no double recovery of damages. One example
of parallel assessments would be supplementing Type A model
calculations with expedited damage assessment calculations for service
losses that are excluded or not fully estimated in the Type A model. In
addition, within the comprehensive damage assessment procedures,
allowable calculation procedures range from benefits transfer
procedures to original studies conducted with site-specific data.
Comment: Some commenters expressed the opinion that monetary
measures of value, in particular for natural resources and related
services, must be empirically ``stable'' in order to be characterized
as ``well formed'' value preferences. Others argued that no such
``stability'' criterion is required for such values to be theoretically
consistent with consumer theory.
Response: NOAA notes that monetary measures of economic values for
all goods and services, including natural resources and services from
natural resources, are derived in theory from consumer preference
orderings. From an individual's complete preference ordering, one can
derive the trade-offs individuals are willing to make between
alternative bundles of goods and services, holding all else constant.
It is also possible to determine monetary measures of value. Where
consumer preference orderings are stable, but an individual's
circumstances change because the price, quality or availability of
other goods changes, then the individual's monetary measures of value
are expected to adjust as well.
Comment: One commenter noted that since Congress intended that full
compensation for natural resource damages be awarded, NOAA's
regulations should not limit available economic valuation methodologies
and should allow the trustee(s) broad discretion in choosing between
currently available standard methodologies and new methodologies that
may become available and accepted. The commenter stated that, while
minimum standards of quality might be useful, regulations should not
``lock in'' the current state-of-the-art as improvements in nonmarket
valuation techniques continue to occur at a rapid pace.
Response: NOAA stresses that the trustee(s) should use all
applicable, reliable economic value measurement techniques in order to
adequately assess all compensable values to be incorporated in the
damage claim. As stated earlier, NOAA is determined to take no action
that would arbitrarily preclude the use of new methodologies, as they
become recognized and accepted in the economics profession.
Comment: Other commenters warned that exclusion of nonmarket
techniques may result in undervaluing the effect of oil pollution on a
wide range of goods and services such as real estate values,
recreational use and wildlife viewing. They argued that ignoring such
values leads to distorted and incomplete damage assessments.
Response: NOAA concurs with the suggestion that the trustee(s)
should have broad discretion in selecting the methodologies that will
be employed in performing the damage assessment, because each discharge
will be unique in some respects. The nonmarket valuation techniques,
including Contingent Valuation (CV), Travel Cost Method (TCM) and
Hedonic Price Model (HPM), would appropriately be among the range of
methodological options available to the trustee(s). Each of the
identified methodological approaches values injuries to different
resource services. As a result, for the most part the methods are not
substitutes for one another; the choice of which to use depends upon
the injuries to be valued in the given application.
Comment: A few commenters argued that all nonmarket valuation
techniques are inherently less reliable than market-based approaches.
Other commenters supported CV, as well as TCM, and HPM. Many of the
economic methodologies for estimating the diminution in value of
resource services are nonmarket methodologies that do not have a long
history of experience to indicate when and how they can be applied to
produce reliable estimates in individual cases. They noted these
valuation techniques have been shown to produce reliable estimates of
WTP, when ``appropriately'' applied. Another commenter noted empirical
market-based valuation techniques are subject to many of the same
potential problems as nonmarket-based valuation techniques, such as
conceptual difficulties, data limitations, and accuracy of statistical
estimation techniques.
Response: NOAA does not support the conclusion that all nonmarket
valuation techniques are inherently less reliable than market-based
approaches. In fact, it is widely recognized that market-based
valuation techniques are potentially subject to many of the same
criticisms and weaknesses attributed to nonmarket techniques. In
addition, it is not possible to use market valuation techniques for
natural resource services that are not traded in markets.
NOAA observes that CV, TCM, and HPM techniques have each been
successfully employed in a wide range of nonmarket valuation
applications, and have undergone extensive scrutiny. NOAA finds no
justification for arbitrarily ranking, nor unilaterally precluding the
use of, any valuation methodology that is regarded by the trustee(s) as
useful and appropriate to the specific injuries of a given discharge of
oil. The specific characteristics of the discharge event and the nature
of the injuries to be valued should guide the choice of valuation
method.
Comment: One commenter recommended that NOAA establish criteria or
guidelines to ensure that estimates of the diminution in use value of
injured resources are valid and reliable. Further, NOAA should provide
criteria and guidance to the trustee(s) regarding the selection and use
of such methodologies to ensure that the value estimates are valid,
reliable, and accurate.
Response: NOAA, in the proposed rule, has stated that the
trustee(s) should follow the best practices established in the
literature. This recommendation is generally the best guidance NOAA
could provide. However, where new information has been made available
to NOAA as part of the rulemaking, that guidance has been provided,
e.g., guidance concerning CV.
Comment: Two commenters questioned the validity of the hedonic
price model (HPM) in discharge cases because ``the environmental value
of a site is difficult to isolate in comparison studies'' due to the
innumerable other variables that affect property values.
Another commenter noted that impacts are typically of short
duration and unlikely to cause any measurable change in property
values. Further, where property value changes are observed and are
solely caused by a discharge of oil, they would represent otherwise
compensable private losses, not natural resource damages. The commenter
argues that any such private losses would be poor indicators of a
public loss.
Response: NOAA agrees that the type of injuries HPM is designed to
value may not be significant in most discharges. Most discharges will
have only small effects on housing prices. Even where there are
effects, it may be difficult to estimate them using standard
econometric methods because so many factors influence housing prices,
and many are correlated. However, the HPM technique is reasonably
straightforward to apply and may be useful in certain situations.
Therefore, NOAA supports the inclusion of the HPM in the list of
available value measurement techniques.
One of these commenters misinterpreted the use of HPM in damage
assessments. The technique is not used to estimate the private property
loss to consumers; rather, the method takes into account the fact that
the quality of local environmental resources (e.g., water, air,
biological resources) is a factor in the value of property. Further,
because local environmental quality is part of any purchase of private
property, environmental quality is considered an attribute of the
property. As a result, the value of the environmental quality is
reflected in property values. Hedonic valuation analysis uses the
reduction in property prices of local residents as a measure of a
portion of the reduced value of public resources due to the discharge.
Comment: Another commenter argues that HPM is based upon
questionable assumptions, such as the ideas that households continually
reevaluate their location decisions, that decisions are based upon
current environmental quality, and that a family can easily move its
entire household in response to nearby natural resource damage.
Response: The HPM is predicated on the assumption that the
preferences for nonmarket goods and services can be revealed through
directly observable transactions in related markets. To the extent that
the housing transaction costs are high, individuals may not respond to
marginal changes in attributes of housing. As a result, the method is
likely to understate the sensitivity of individual's values to the
attributes.
Comment: One commenter strongly recommends that hedonic property
damages can be determined by following normal tort (e.g., trespass)
type damage procedures.
Response: Given the range in approaches by various jurisdictions to
property and natural resource damages, it is difficult to determine
what is meant by ``normal'' tort procedures. NOAA believes that its
approach is consistent with that envisioned by OPA.
Comment: One commenter was concerned that an earlier Notice
suggests that single-site travel cost models do not account for
substitute sites, but multiple-site models do.
Response: NOAA did not mean to imply that single-site travel cost
models are incapable of treating substitutes. In practice, however, the
collinearity among travel cost (price) and environmental attributes of
the set of substitute sites substantially limits the number of
substitutes that can be incorporated in a single equation model.
Comment: One commenter stated that the rules should emphasize that
the travel cost model, for the purpose of measuring lost use value, is
only a technique for estimating interim lost value to supplement
restoration/replacement value during the time period after the
discharge and before restoration. The commenter noted that because
restoration efforts in most cases will gradually reduce the natural
resource injury from its peak within a short time after the discharge,
TCM damage estimates should be adjusted for the improvement factor, and
should be phased out entirely when restoration is complete.
Response: NOAA concurs that, as an injured resource (say a
recreational fishery) recovers through time, the quality of the
services will generally increase. As the quality of the recreational
fishery improves toward baseline, the value per fishing trip will tend
to increase and as a consequence, so will the demand for fishing. For
versions of the TCM in which recreational demand is a function of both
the travel cost and the environmental quality of the site (such as
catch rate), the model may be used to predict these changes in value
and participation so long as data on expected environmental quality
improvements (such as the increase in catch rate) during the recovery
period are available. When the relationship between quality and
participation is not explicitly modeled, and the TCM only predicts
total participation at the site, adjustments in the damage calculations
will be necessary as participation returns to baseline. NOAA concurs
that the interim lost values are calculated from the time of the
discharge until restoration is deemed complete by the trustee(s).
Comment: Two commenters noted problems with TCM. One said TCM
provides estimates of the value of a site as a whole and does not
measure the impact of relatively slight changes in the availability of
natural resources. Another indicated visitors may lack information or
have a misconception about a particular site, which will skew the
resulting data. Another noted it is also very difficult and ultimately
ambiguous to attempt to measure lost opportunity costs, which depend on
each individual's wage rate as well as his/her ability and inclination
to work during travel time. Also, the commenter notes there is an
unsettled controversy over whether individual data on travel cost are
better than zonal aggregation of travel costs.
Response: NOAA recognizes the limitations in applicability of the
TCM. The greatest disadvantage of the TCM, and other indirect
techniques as well, is that it cannot be employed unless there is some
easily observable behavior that can be used to reveal values. Advances
in the TCM incorporating multiple-site visits, improved models of the
value of time, and the availability of substitutes continue to broaden
the range of this measurement technique. In addition, the economics
profession has developed procedures for valuing changes in
environmental quality of a site, in addition to valuing access to a
particular site. Random utility models, a multi-site extension of TCM,
can value changes in quality at sites without requiring observed
participation levels. This feature is useful, because for sites in
which recovery is expected to occur over a long period, it will not be
feasible to collect site-specific data through the full period of
recovery within the time frame of the damage assessment.
In prevailing economic theory and practice, it is assumed that
individuals' behavioral responses are derived from their personal
perceptions of reality. These behavioral responses provide the basis
for valuation. Therefore, if a discharge of oil produces an injury to a
site, it is not necessary that a user know with scientific certainty
what the specific extent of the injury has been. If the consumer
perceives that the value of the site has been diminished as a result of
the discharge, there has been a reduction in utility, and thus a
potentially compensable loss. If additional information eventually
reduces the perception and experience of loss, then the damages will be
reduced accordingly. However, past losses derived from uncertainty
regarding consequences of a discharge may still be a compensable loss.
To the extent that individuals are unaware of injuries to resources,
their responses may understate the values they might express with full
information. Since these individuals will most likely eventually
experience the service losses (though they be unaware of the cause),
these future losses should be estimated and included as compensable
values.
Comment: Two commenters stated TCM will be superior to HPM in most
cases.
Response: NOAA contends that both the TCM and HPM have their
advantages and disadvantages, and are suited to different
circumstances. NOAA finds that both models should be considered for
potential use in damage assessment.
``Contingent Valuation Methodology''
``General''
Comment: Several commenters stated that compensatory natural
resource damage assessment is all that is included in OPA. They claimed
that CV as currently applied has such an upward bias as to be punitive.
Response: Under OPA, the compensatory framework includes
calculations of both direct use and passive use values. NOAA has found
no empirical evidence to support the contention that CV measures of
passive use values are so upwardly biased as to be punitive.
Comment: A number of commenters contended that authorizing the
application of unreliable methodologies such as CV for measuring
speculative elements of loss, such as theoretical passive use damages,
even under limited circumstances, will result in increased litigation
costs because the RP(s) will be more likely to go to trial on the
grounds that CV will significantly overstate passive use damages.
Response: The use of CV, in and of itself, does not promote
litigation. The potential for litigation depends upon the nature and
quality of the damage assessment and the litigious nature of the
trustee(s) and RP(s). A CV study that is carefully constructed,
administered, and analyzed should not meet with the skepticism that
many past CV estimates have received.
Comment: One commenter stated that the use of CV is inconsistent
with the general law of damages. That commenter contended that a
decision to employ CV measures of passive use losses would invite wider
use of CV, with potentially serious repercussions for the legal system
and could lead to speculative claims like a claim for harm due to the
death of a friend.
Commenters further compared traditional tort law and the natural
resource damages under OPA. These commenters noted that imposing
liability for natural resource damages based upon CV studies for
passive use values does not further the public's interest in preserving
and restoring publicly owned natural resources. Additionally, these
commenters stated that liability under OPA is limited to the costs to
restore or replace injured resources, and that any passive use values
assessed above those costs are punitive damages. These commenters also
noted that even if OPA authorized such damages, tort law actions
generally do not allow damages for losses that cannot be determined
with sufficient evidentiary reliability and economy.
In contrast, other commenters stated that recovery for passive use
values is not punitive since OPA specifically recognizes two components
of the damage figure--costs to restore, replace, rehabilitate, or
acquire the equivalent of the injured resources and diminution in value
pending that restoration. Failure to include passive use values in a
natural resource damage claim under OPA would, in fact, be a violation
of law. Also, these commenters noted that there is no requirement in
private tort law that the damages must be proven with mathematical
precision and that difficulty in determining damages is not a bar to
their recovery.
Response: Although NOAA observes that certain claims, such as those
for emotional distress, etc., are recognized by the American judicial
system, it also points out that it is not the role of this rulemaking
to speculate whether CV will gain acceptance in areas of the law other
than that dealing with natural resource injuries. Because OPA
explicitly includes diminution in value as part of the damage claim for
natural resource injuries, damages under OPA are not limited to the
costs to restore, rehabilitate, replace, or acquire the equivalent. As
stated elsewhere in this proposed rule, the OPA compensatory framework
includes both direct use and passive use values. Thus, the inclusion of
passive use values in a damage claim cannot be considered punitive.
Rather determination of passive use values furthers the public interest
by ensuring adequate compensation to restore, rehabilitate, replace, or
acquire the equivalent of the injured resources.
As indicated in this rule, CV is a valid, proven technique when
properly structured and professionally applied, and as such is an
acceptable method for use by natural resource trustees. Further, use of
CV to measure passive use values has been sanctioned in the Ohio
decision. As stated earlier, NOAA believes that CV studies of passive
use values can produce reliable estimates of damages. In cases where
passive use values cannot be estimated at reasonable costs, they may be
omitted from the damage claim.
Comment: One commenter stated that assessment of damages for
impacts on existence or option values is inappropriate because no
restoration effort will serve to avoid this claimed impact. Therefore,
it is an irremediable element of the event and constitutes a penalty.
Response: NOAA does not agree that impacts to existence or option
values are an irremediable element of a discharge of oil unless
restoration, replacement, or rehabilitation of the injured resources
(and thus services) is impossible. Liability is for foregone direct use
and passive use values during the interval from the discharge to
complete recovery. Should recovery be impossible, these losses are, by
definition, irremediable. Such losses are, nonetheless, compensable
under OPA and do not constitute a penalty. Recovery for such losses can
be used to acquire the equivalent of the injured resources.
Comment: One commenter recommended that the federal government
produce standard damage assessments for a few specific reference
discharges of oil, either hypothetical or actual, ranging from small to
large. These standard valuations could be generated by any method,
including through a jury of experts. These benchmarks could serve as
reference points for later CV studies. That is, when a damage
assessment is required, surveys could be used to elicit answers to
questions like: ``Would you pay [much more, more, about the same, less,
much less] to prevent this spill than you would to prevent Standard
Spill A?''
A few commenters suggested as an alternative to using CV to
estimate interim lost values, that NOAA consider establishing a range
of pre-set monetary values that reflect lost passive use values. For
any specific discharge or incident, NOAA could establish a methodology
for applying these values to calculate the precise amount of payment
due to compensate the public for lost passive use values. The values
and methodology should be established by an expert panel.
Response: NOAA will consider the feasibility and desirability of
establishing reference studies. NOAA is proposing a compensation
formula with values for relatively small discharges. Though the current
version of the formula does not include passive use values, the
intention is to include passive use values when reliable estimates are
available for such discharges.
Comment: A number of commenters asserted that use of CV will reduce
the credibility of the entire trustee framework and result in
undesirable social consequences.
Response: NOAA believes the use of CV will not reduce the
credibility of the damage assessment process if it is done correctly,
with consideration of the guidance and guidelines set forth in the
proposed rule. In addition, use of CV should produce some socially
desirable consequences by enabling the trustee(s) to determine total
compensable value and ensure that there is adequate compensation to
restore the injured natural resources.
Comment: One commenter noted that any damage assessment rule
authorizing CV to measure passive use damages could well cost the U.S.
economy hundreds of millions of dollars annually by generating
excessively high estimates of passive use damages. This could result in
reduction of the number of competitors in the transportation industry,
including bankruptcy of some responsible parties. Industry
concentration could follow which, in turn, could lead to higher freight
rates and unnecessary costs borne by U.S. oil consumers. Under E.O.
12291 (now E.O. 12866), a rule imposing such costs cannot be
promulgated prior to completion of a regulatory impact analysis.
Response: NOAA has considered the possible impacts of the proposed
rule. The proposed rule has been designated as a ``major'' rule because
of the significant issues involved in the rulemaking. However, because
of the difficulty of evaluating the effects of alternatives to this
proposal, a Regulatory Impact Analysis under E.O. 12866 is not
necessary and has been waived.
``Reliability''
Comment: A great deal of controversy surrounds the use of CV to
estimate passive use values. Critics state that, as an approach to
assessing these values, CV is: (1) Deeply and irretrievably flawed; (2)
highly unreliable as a measurement tool for passive use values; and (3)
unable to meet basic standards of accuracy such as tests of theoretical
validity and convergent validity. These critics pointed out that
studies frequently cited as providing support for the reliability of CV
have never been replicated and do not provide clear scientific evidence
in support of CV.
Another commenter stated that the empirical literature on CV
estimates of passive use values is too thin at this time to establish
or dismiss the credibility of reported estimates, while another
suggested that no perfect instrument exists for measuring peoples'
values for any commodity--marketed or nonmarketed--and that we will
never know the exact nature of peoples' true value functions for any
commodity.
Proponents stated that CV is the only viable means to meet OPA's
mandate that both direct use and passive use values be considered in
assessing natural resource damages. Thus, passive use values measured
by CV need to be sanctioned. These individuals argued that the fact
that it is difficult to quantify passive use values using CV does not
justify ignoring such values. Further, CV should not be held to a
higher standard of reliability than other types of analysis.
Response: NOAA includes CV as one of the measurement techniques
available to the trustee(s) for the determination of the diminution in
value of natural resources and/or their services as a result of a
discharge. NOAA believes that CV studies can produce reliable estimates
of damages. Further, NOAA agrees that CV should be held to the same,
not a greater, standard of reliability as other types of analysis.
Comment: Several commenters argued that the use of CV to measure
passive use values cannot be tested or validated by comparison to
valuations derived by other methods. Thus, there is no standard against
which CV answers can be compared to detect bias. Since no valid
alternative method currently exists for assessing ``true'' passive use
values, it is impossible to judge the extent of any overestimation
produced by CV surveys. Several commenters acknowledged that there have
been some attempts to investigate criterion validity, which provide
some suggestive evidence establishing the validity of estimated passive
use values.
Response: NOAA agrees that it is difficult to validate externally
the results of CV studies measuring passive use values as there are no
other methods currently available to provide external validation with
an alternative estimate. This same disadvantage, however, will exist
for any method used to estimate passive use values. To minimize any
potential bias, CV studies should consider the guidance provided
elsewhere in this proposed rule concerning survey design, development
and administration. Furthermore, this rule proposes a test for
determining the validity of the results.
``Survey Design Issues''
``Injured Substitute Commodities, Budget Constraints, and Alternative
Expenditure Possibilities''
Comment: Several commenters expressed the view that CV-based
estimates of willingness to pay would be overstated if respondents: (1)
Were unaware of the availability of substitute natural resources that
were not injured by the discharge under investigation, (2) were not
cognizant of their existing financial claims (i.e., their budget
constraint), or (3) were unaware that they may be asked to pay for
future public programs. These commenters suggested that respondents be
reminded of uninjured substitute natural resources, budget constraints,
and future expenditure possibilities prior to the CV willingness to pay
elicitation question.
Response: NOAA agrees that it is important to inform respondents of
related natural resources that have not been injured by a discharge if
such resources exist and to remind respondents prior to the elicitation
question that there may be things they would wish to spend their money
on other than the program offered in the survey. However, NOAA does not
agree that respondents should be told about speculative future programs
that might be proposed as people are not reminded of future potential
expenditures when they purchase a marketed good or make decisions
concerning expenditures for public commodities. For example, voters are
not reminded of issues that may appear on future ballots at the time
they cast their votes in actual referenda. Further, if the trustee(s)
selects the conservative lump-sum payment vehicle recommended by NOAA
in the preamble to this proposed rule, this design component will
greatly reduce the respondents' need to consider the future financial
implications of their willingness-to-pay decisions.
``Sensitivity to the Scope of Injuries''
Comment: Many commenters expressed concern that estimates of
willingness to pay (WTP) for the services of natural resources obtained
through CV studies are not sufficiently sensitive to the magnitude of
the services being offered, and therefore, those results are
inconsistent with accepted economic theory and must be deemed
unreliable estimates of lost passive use value.
Response: NOAA is sympathetic to this concern; however, NOAA is not
convinced that phenomena such as insensitivity to scope are endemic to
the CV approach. The concern of the commenters can be illustrated with
a simple example. Consider two samples of respondents, identical in all
respects. The first sample is confronted with a CV survey that elicits
a WTP for a well-defined natural resource service. The second sample is
confronted with the identical survey, with the exception that the
quantity of the natural resource service offered is significantly
larger than that in the first survey. If environmental services enter
individuals' utility functions in a manner analogous to common consumer
goods (e.g., household electronics, clothing etc.), one might expect
WTP from the second sample to be larger than that from the first,
although relevant economic theory states only that the WTP of the
second sample should not be smaller than that of the first.
``Substitutes''
Comment: A number of commenters contended that CV responses for
generic sites indicate that survey respondents have not considered
substitute sites sufficiently because their responses are too close to
the responses for irreplaceable sites. Lacking clear preferences,
individuals are unlikely to recognize substitutes for the service in
question, unless a description of these substitutes is specifically
included in the survey instrument.
Response: Reminding respondents of undamaged substitutes has been
outlined in the literature as a good CV practice. In order to obtain
reliable estimates of WTP, NOAA recommends that the survey instrument
places the commodity to be valued in the context of related natural
resources, if such related resources exist or describes the future
state of the same natural resources. This reminder should be introduced
prior to the main valuation question to ensure that respondents have
the alternatives in mind when revealing their willingness-to-pay.
``Hypothetical Questions''
Comment: One commenter claimed that CV surveys cannot provide
reliable estimates of lost passive use since such surveys ask
respondents about hypothetical programs to provide public goods and
that respondents view the survey as a purely hypothetical exercise.
Under these conditions the commenter claimed that the respondent
undertakes no mental effort to answer the questions since there is no
cost to being wrong.
Response: NOAA acknowledges that poorly designed and administered
CV surveys may be subject to the criticism that individuals do not take
the decisions posed by the survey seriously and do not undertake the
effort necessary to make decisions consistent with their preferences
and financial constraints. However, NOAA rejects this comment when
applied to all CV surveys. CV surveys designed and conducted according
to the guidance laid out in this proposed rule will lead to careful
decisionmaking on the part of respondents. This is ensured by the
proposed regulations which require: (1) An accurate and understandable
injury description; (2) credible prevention or restoration programs
that are offered to the respondent; (3) a realistic choice mechanism
and payment vehicle and (4) followup questions that ask respondents to
explain aspects of their decisions. Further, NOAA believes that its
recommendation to use in person interviews will motivate respondents to
complete the interview and will maintain the respondents' interest in
the subject matter of the survey.
``Referendum''
Comment: Several commenters recommended the use of a referendum
format to pose the valuation question. Critics, however, contended that
the use of the currently popular dichotomous-choice payment question
format can lead to even less credible results than those using open-
ended formats. They argued that studies show means from dichotomous-
choice data to be significantly larger than the means from the open-
ended data and that results of dichotomous-choice models suffer from
starting-point bias.
Response: NOAA believes that the more appropriate method of
questioning for the estimation of reliable estimates of WTP is the
dichotomous-choice or referendum format. Open-ended CV questions are
less likely to provide the most reliable valuations because they lack
realism. In our society, most goods are offered using posted prices.
Asking an individual to reveal his or her maximum WTP for a good is
both unfamiliar and unrealistic. On the other hand, a voting format for
public goods is one with which people are familiar (i.e., school bond
issues; special assessments for public infrastructure). Further, an
open-ended request for WTP may invite strategic overstatement or
failure to respond to the valuation question.
``Strategic Behavior''
Comment: One commenter claimed that respondents confronted with CV
questions regarding public environmental programs will attempt to
increase the amount of money spent on the proposed project by
increasing their expressed willingness-to-pay beyond the level
consistent with their preferences.
Response: Strategic behavior is less likely to occur if the
trustee(s) uses the voting format recommended by NOAA. If this approach
is used, the survey will specify that some public entity, such as a
state or federal government, is considering a plan that would provide a
public good and is conducting a survey to see how individuals would
vote on this plan if it were offered on a ballot and the cost to the
respondent's household was $X. The referendum format does not permit
the respondent to express an amount greater than that asked nor does it
suggest that the level of the public good offered is being debated,
thus the respondent cannot increase the amount of the public good
provided by offering to pay a greater amount. Moreover, it has been
shown that the referendum format is incentive compatible, implying that
respondents' only incentive is to vote for the plan if his or her WTP
equals or exceeds the required payment, or to vote no if his or her WTP
is less than the required payment.
``Warm Glow''
Comment: Several comments suggested that expressed willingness-to-
pay for the programs offered in CV surveys are not expressions of value
for the services provided by the natural resources described in the
programs, but rather are expressions of the simple pleasure one
receives from giving to any good cause (sometimes referred to as the
warm glow of giving).
Response: NOAA finds no evidence to suggest that the warm glow
motivation is prevalent in properly designed and administered CV
surveys that follow the guidance outlined in the proposed rule. If warm
glow were a prevalent motivation, one would not expect to find large
numbers of respondents refusing to pay anything at all for
environmental programs offered in a CV survey.
A very common and effective payment vehicle employed in CV studies
is a lump-sum tax payment. NOAA finds no evidence to support the notion
that the warm glow hypothesis would imply that individuals get a
similar warm glow from taxing themselves. Certainly, casual evidence
suggests the opposite is true. Since a tax vehicle is one of the
preferred methods of payment in CV surveys, NOAA believes that
responses to such surveys are not amenable to explanation via the warm
glow hypothesis.
``Sensitivity of Results to Various Factors''
Comment: Several commenters voiced concern that in the absence of
clear preferences, respondents are subject to even unintentional
influence by the framing of the survey instrument. These commenters
stated that WTP values derived from CV are highly sensitive to
variables that, according to economic theory, should be irrelevant to
the valuation of a specific resource, including elicitation format, the
sequence of questions, and the starting point value given in the
questionnaire. Conversely, they assert that CV results are quite
insensitive to changes that, according to economic theory, should
matter, including variation in the quantity or quality of the resource.
This evidence further demonstrates that CV results do not reflect valid
economic measures of value.
Response: NOAA is not persuaded that CV results do not represent
valid measures of lost value. NOAA recommends that CV surveys be
designed to provide the highest degree of realism possible. Additional
guidance is discussed in this preamble in the responses to comments on
embedding, income constraints, and uninjured substitutes. In addition,
NOAA proposes a test in its proposed regulations to demonstrate
sensitivity to the scope of the environmental insult.
``Present Value Calculation of Interim Losses''
Comment: One commenter noted the distinction between interim and
steady state passive use losses and claimed that respondents to a CV
survey are unlikely to be able to discount appropriately the specific
time path of interim losses. The commenter then presented an
alternative procedure whereby respondents would value interim losses
for a single year and technical experts would estimate how the services
provided by the resource will vary from year to year as the restoration
takes place. These experts would scale the respondents' valuation by
the amount of the recovery that has taken place each year and compute
the appropriate present value.
Response: There is no evidence to suggest that respondents'
expressions of willingness to pay embody inappropriate discounting.
Moreover, the alternative approach advocated in the comment is not only
inconsistent with economic theory, but, at an implementation level,
infuses the valuation with unnecessary economic and ecological
uncertainty. Rates of time preference for the restoration of natural
resources are specific to each individual. CV valuation of natural
resource injuries is consistent with this fact and permits individuals
to discount at their own rates. The alternative proposed by the comment
would abandon individual-specific time preference rates, for a single
rate chosen by some expert. This would clearly lead to discounting
errors and is therefore an unacceptable approach. At the implementation
stage, the alternative would require experts to estimate the actual
time path of recovery and levels of recovery for each of the natural
resources injured, and then to form a suitable index of the recovery
that could be used to scale the respondents' willingness to pay
amounts. Even if the experts could quantify the specific time path of
recovery for each of the resources, they could not form the appropriate
aggregate since this would rely on information about each respondent's
preferences. Therefore, NOAA finds the proposed alternative
unacceptable.
``Temporal Averaging''
Comment: One commenter stated that time dependent measurement noise
should be reduced by averaging across independently drawn samples taken
at different points in time. The commenter also suggested that a clear
and substantial time trend in responses would cast doubt on the
reliability of the finding.
Response: NOAA disagrees with this comment. Expressed willingness
to pay can vary over time for valid economic reasons (e.g., increase
certainty concerning expected recovery) and simple time averaging would
mask these economic reasons. Moreover, even if such averaging were
appropriate and warranted, it would require the trustee(s) to field
several full-scale surveys that would greatly increase damage
assessment costs and, at best, add nothing to the reliability of the CV
results.
``Unfamiliarity With the Good''
Comment: A great deal of concern was voiced over the complexity of
the policy issue and/or the level of familiarity of the good
(environmental amenity) and changes in the level of the good with which
the CV respondent is faced. Moreover, the benefits from environmental
projects can be complicated, cumulative, and systemic, and knowledge
about these things cannot be quickly absorbed and used by average
survey respondents. As a result, the respondent has no experience or
basis for valuing the good, leading them to construct values that are
not related to the good itself. On the other hand, a number of
commenters criticized the empirical research used to support claims of
the unreliability of CV, due to the ambiguity of the valuation
scenarios used in this research.
Response: If CV surveys are to elicit useful information about WTP,
respondents must understand what it is they are being asked to value
and must accept the scenario in formulating their responses. NOAA
recognizes that some past CV surveys have provided only sketchy details
about the program(s) being valued, calling into question the estimates
derived from those surveys. NOAA posits that a conservative approach
should be taken regarding the knowledge of the respondent. A
conservative CV study will provide sufficient information about the
environmental program such as frequency and magnitude of discharges of
oil, the peculiar features of the discharge in question, and similar
relevant information.
``Embedding''
Comment: A number of commenters highlighted a form of embedding
which is sometimes related to the inclusiveness of the resource. This
form of embedding is suggested by the very different responses given by
an individual when asked about a single resource as compared to surveys
when the individual is asked to begin with an overall sum for
environmental causes and is asked to then allocate this amount among
various resources. The difference between a ``bottom up'' approach and
a ``top down'' approach indicates that an individual is not observing
his budget constraint in the bottom up approach. Because the respondent
is unable to distinguish between what he is being asked to value and a
more inclusive good, he may state an identical or similar WTP for a
subset of a resource as for the entire resource.
Other commenters suggested that some of the phenomena associated
with the embedding effect are simply standard propositions in utility
theory (diminishing marginal utility of the asset in question).
Further, a poorly designed survey instrument can contribute to
embedding effects that can be largely avoided with an instrument that
identifies more effectively the good(s) to be valued.
Another commenter suggested that the measurement issues raised by
the embedding controversy involve a well recognized and potentially
serious category of biases that are referred to as ``amenity
misspecification.'' Although these potential biases pose a
methodological challenge to CV researchers and require careful
attention in the design phase of the study, they are often avoidable if
the scenario is plausible and the good is well described.
Response: NOAA rejects the ``top down'' approach advocated by the
commenters because it suffers from two problems that invalidate its use
in CV studies of lost passive use. First, the ``top down'' approach
permits respondents to change the levels of vast aggregates of public
goods as they move down a decision tree ordering of public goods toward
the injuries to be valued. Thus, the value given for the injuries is
predicated on the new levels of public goods chosen by the respondent
as he moves down the decision tree. Since each respondent may choose
his own levels for all public goods offered, and the levels of other
public goods in part determine the value of the injuries, it is
impossible to recover the value of the injuries associated with the
level of public goods that actually prevailed at the time the injuries
occurred from survey responses.
Second, at points in the decision tree lying above the injuries to
be valued, the definitions of the public goods provided to respondents
are necessarily broad and cover vast aggregates of public goods. The
result of this broad definition of the goods offered is a lack of
specificity regarding the components of any aggregate. It is left to
the respondent to decide for himself what the precise components of the
aggregate might be. The value finally given for the injuries in
question is dependent on the definitions of the public goods made by
the respondents at earlier levels and these definitions are unknown.
Therefore, no consistent set of definitions may be inferred and thus no
value for injuries, contingent upon those definitions, may be measured.
Finally, NOAA agrees with the commenters who believe that alleged
biases in CV responses resulting from the embedding phenomenon can be
avoided through careful questionnaire design and execution of the
survey.
``Pristine Environment''
Comment: One commenter noted that proponents of CV have not
addressed the issue of CV's capability of measuring passive use values
for less than pristine environments. That commenter questioned whether
CV can reliably measure passive use values in an already diminished
area.
Response: NOAA notes that there is nothing in the empirical
literature to suggest that respondents cannot formulate WTP estimates
for less than pristine environments. A well-designed survey instrument
that describes the baseline conditions before the discharge and the
impacts of the discharge should provide respondents with adequate
information upon which to base WTP.
``Temporal Measurement''
Comment: One commenter was concerned that CV has not been proven
capable of measuring passive use damages when there is gradual
restoration of the injured resources over time.
Response: In order to obtain reliable estimates of WTP, the CV
survey should provide a description of possible restoration activities
and their expected outcomes as well as the time period for natural
recovery. This information allows the respondent to distinguish between
interim and steady state losses and the timing of restoration. Given
such information, there is nothing in the empirical literature to
suggest that a respondent cannot submit a reliable WTP estimate.
Comment: One commenter asserted that in implementing a CV survey,
it should be made apparent that respondents can distinguish interim
from steady state losses. This assertion is based on the assumption
that most passive use values of natural resources may be derived only
or mostly from its steady state and not from its day-to-day state.
Response: NOAA rejects this comment as there is no empirical
evidence to suggest that passive use values are derived solely from the
steady state characteristics of the resource.
``Extent of the Market''
Comment: One commenter noted that the passive use values derived
from an environmental good are likely to be concentrated locally, but
may extend to a large distance. Deciding where to draw the line for
valuation is crucial. Another commenter noted that there is currently
no accepted theoretical or empirical structure for determining the
appropriate geographic extent of the population across which to
extrapolate the WTP values. Thus, damage figures derived from CV
studies for passive use values have no reliable or predictable basis.
Response: NOAA agrees that there is no clear line for determining
extent of the market, but it does not follow that passive use value
estimates have no reliable basis. The extent of the market is an
empirical question best left to the discretion of the trustee(s) in
consultation with their survey research experts, based on the
particular case in question and guided by the results of survey
pretests and pilots.
Comment: A few commenters asserted that CV studies focus on
controversial subjects and, as a result, exaggerated perceptions almost
certainly undermine the objectivity of the study. If CV is to be used,
it is imperative that surveys not be framed in terms of discharges of
oil, but rather should describe reductions in resource services due to
some noncontroversial source, such as natural mortality.
Response: The underlying concern of these commenters is whether the
potential controversy surrounding a discharge can undermine the
objectivity of a CV survey. NOAA believes that this potential problem
will not be a factor in well-designed CV surveys because they are
generally conducted at times sufficiently distant from the discharge.
This time lapse occurs because of the long lead-time necessary to
determine the likely injuries from the discharge so that they can be
accurately represented to the respondent and because of the time needed
to prepare and implement the final CV survey. Further, media attention
that may generate controversy will likely have focused on other events
by the time the full survey can be conducted. The referendum approach
also prevents potential controversy from tainting WTP. Because
respondents are voting to increase their own taxes or the price of a
consumer product such as oil rather than voting on how much the oil and
gas company should pay to remedy the injury, respondents cannot vent
their frustrations at the oil or gas company. Thus there is little or
no possibility that potential controversy will undermine the
objectivity of the CV study.
``Ex-ante v. Ex-post Questioning''
Comment: One commenter contended that CV surveys are biased and
inaccurate because they do not really measure the value of the resource
but are designed instead to determine WTP to prevent harm to a
resource. This is because CV is always carried out in the aftermath of
an accident and does not reflect pre-existing values independent of the
accident and the valuation process.
A number of critics of CV claimed that CV questionnaires focus on
total values (although passive use values dominated) in an ex-ante
setting--that is, protecting waterfowl and preventing injury resulting
from the discharge. They suggested that such ex-ante CV studies are
better suited for damage assessment than are assessments that involve
an ex-post valuation.
Response: In NOAA's judgment, the conceptually correct measure of
damages is the ex-ante WTA. That is, ideally one would wish to place
individuals at a point in time just prior to the injury and elicit from
them an expression of WTA for the future injury. For reasons discussed
earlier in the preamble, WTP, not WTA, is proposed as the basis for
measuring passive use values. Thus, the obvious WTP analog is ex-ante
prevention. It is true, though, that under certain circumstances, it
may not be possible to develop an ex ante WTP CV commodity that is both
plausible and reasonable to respondents. In these instances, the
trustee(s) is free to use ex-post WTP programs. The trustee(s) should
determine whether to use an ex-ante or an ex-post scenario on a case-
by-case basis.
``Distribution of Responses''
Comment: A number of critics of CV contended that the mean WTP is
estimated with low statistical precision, due to extreme responses. The
distribution of WTP appears to be strongly skewed, so that trying to
circumvent the problem by using medians or similar statistical devices
is likely to introduce serious bias. These commenters assert that very
large samples should be required to provide acceptable statistical
accuracy.
Response: NOAA agrees with the commenters that extreme responses
may skew results. However, standard practice in empirical research is
to begin with a large sample size and treat outliers appropriately.
NOAA believes that probability sampling is essential for a survey used
for damage assessment and that the size of the sample must be large
enough to ensure statistical precision. Due to the complexity of
sample-specific design and size, the trustee(s) should consult with
sampling statisticians in the design of a CV survey.
``Calibration/Scaling''
Comment: One commenter asked whether a CV study can generate useful
information when respondents fail to answer truthfully. This commenter
suggested that a ``calibration approach'' can be applied to
environmental goods, for example, a CV response predicated on a
hypothetical scenario could be statistically mapped into a response
that would be obtained if the opportunity to purchase the good were
actually provided. A number of commenters suggested that if systematic
divergence existed between actual behavior and CV survey responses and
this divergence could be quantified, then calibration of CV results
could be undertaken.
Response: NOAA notes that there are some studies that suggest that
stated intentions of WTP in CV surveys significantly exceed observed
responses in simulated markets or in solicitations for charitable
contributions (though none of the surveys meet the standards proposed
in the rule, and there is debate as to whether the simulated markets or
charitable contributions capture ``actual'' WTP). Because of the
possible bias, a discount factor is included in the proposed rule to
apply to estimated WTP. The proposed rule gives a default factor of 50
percent for the purposes of soliciting comment. However, the trustee(s)
may adopt a different calibration factor if it can be shown that a
different factor is appropriate for a specific application of CV.
``WTP vs. WTA''
Comment: A number of commenters addressed the subject of WTP versus
WTA compensation measures within the damage assessment context. Some of
these commenters noted that WTA is the correct measure because the
public trust doctrine embodied in OPA implies that the property right
for the resources rests with the government, in trust for the public.
Consequently, the public has the right to be compensated when injuries
occur. Another commenter stated that CV studies frequently find large
differences between WTP and WTA and that this difference is another
sign of the failure of CV to measure correctly any genuine underlying
preferences for passive use values. Other commenters noted that the
conventional wisdom applies only to changes in the price (of marketed
goods). Recent research has shown that, for changes in the quality of
either marketed or unmarketed goods, large differences between WTP and
WTA may be consistent with economic theory, particularly for public
goods.
Response: While NOAA agrees that the conceptually correct measure
of lost passive use value for environmental damage is WTA, it is
concerned that respondents to CV questionnaires would give
unrealistically high answers to such questions. Therefore, NOAA
contends that the WTP format should be used instead of the compensation
required (WTA) because the former is the conservative choice unless
future empirical evidence suggests otherwise. NOAA encourages the
trustee(s) to remain current with the state-of-the-art in this area and
to use the criterion that reflects the best available practice among
natural resource economists. NOAA disagrees with the assertion that the
large difference between WTA and WTP is an indication that CV fails to
correctly measure underlying preferences, as experiments have shown
that such differences also exist for market goods.
``Research''
Comment: Several commenters stated that the results of past CV
studies are sufficiently interesting and demonstrate sufficient promise
to warrant the commitment of substantial resources to further research.
There is an urgent need for methodological research on CV.
Response: NOAA encourages further research in this area.
``Expressions of Punishment''
Comment: One commenter claimed that CV surveys of passive use
permit the respondents in such surveys to express in their WTP amounts
feelings that responsible parties should be fined or punished for the
effects of discharges of oil.
Response: Such problems can be avoided in a properly designed
survey if the trustee(s) selects a voting format as the choice vehicle
coupled with a tax as the payment mechanism. By asking the respondent
how he or she would vote on such a plan if the plan would cost the
household $X, the respondent cannot express any anger directed at the
RP in terms of the respondent's household's willingness to pay for the
program offered, except possibly to refuse to answer the question or to
answer the question based on a belief that taxpayers should not be
required to pay for impacts resulting from the discharge.
``Survey Methods''
Comment: Several commenters argued that high nonresponse rates in
CV surveys would bias survey results, producing unreliable estimates.
Response: While NOAA agrees that a high response rate is desirable,
there is no bright line to determine at what level of response a
survey's results become ``unreliable.'' NOAA proposes that the
trustee(s) shall obtain as high a response rate as possible that can be
achieved at a reasonable cost while ensuring reliable inferences to the
general population.
In addition, good survey technique generally involves a followup
analysis of nonrespondents and/or respondents to determine whether the
sample is representative of the target population for the survey.
``Self-Selection Bias''
Comment: One commenter claimed that respondents with strong
environmental preferences have a higher survey response rate than those
with weaker preferences and thus are overrepresented in the final
sample employed in the passive use value calculations.
Response: NOAA disagrees with this comment. Under the survey
administration guidelines laid out in the proposed rule, probability
sampling is specified. Probability sampling ensures that the sample
drawn does not over-sample those with strong environmental preferences.
The proposed regulations also direct the trustee(s) to minimize
self-selection bias related to the contents of the survey instrument.
NOAA's recommended use of in-person interviews will help to ensure that
respondents do not know the true intent of the survey until the
interviewing process has started. Only at this time can a self-
selection bias enter, and previous evidence from in-person CV
interviews suggests that interviews once started are completed.
``No-answer Option''
Comment: One commenter asserted that a ``no-answer'' option should
be explicitly allowed in addition to the ``yes'' and ``no'' vote
options on the main valuation question of a CV survey.
Response: It is not clear at this time that the inclusion of a
``no-answer'' option would substantially change the measure of passive
use values for the injury. NOAA supports further research in the area.
``Survey Mode''
Comment: Several commenters criticized the use of mail and
telephone interviews in CV surveys, especially in the context of
complex goods. A few commenters argued in favor of mail surveys,
asserting that telephone and face-to-face interviews typically provide
the respondents with inadequate time to formulate a response or test it
against their actual budget and expenditures.
Other commenters argued that in-person interviews are simply not
required to elicit the ``opinions and feelings'' required from CV
questionnaires and may lead to bias in results by giving the issue high
apparent importance and exposing the respondent to undue influence from
the interviewer.
Response: There are advantages and disadvantages of each mode of
administration, and the selection of the appropriate method is
dependent on a number of factors such as cost, turn-around time,
desired response rate, type of information to be conveyed, use of
visual aids, required population coverage and the ultimate use of the
survey results.
After analyzing the advantages and disadvantages of each method,
NOAA believes that while mail surveys can provide invaluable
information for many academic studies and regulatory purposes (i.e.,
U.S. decennial census), mail surveys at this time lack certain features
that are desirable for use in the natural resource damage assessment
area. In deciding between the use of telephone and in-person surveys,
NOAA suggests that the trustee(s) consider seriously the use of in-
person interviews for the final survey because of the characteristics
of a survey needed for damage assessment purposes. A CV survey designed
for natural resource damage assessment purposes is likely to impart a
large amount of information to respondents causing interviews to be
lengthy and often complex. In-person interviews offer the opportunity
to motivate the respondents and to hold their interest by providing
important information in a graphical and pictorial format and asking
interactive questions regarding the respondents' understanding and
acceptance of key features of the instrument. It also permits
interviewers to record verbatim responses to important open-ended
questions. Such information may be critical in demonstrating that the
trustee(s) has adhered to the regulatory guidance proposed by NOAA.
NOAA, however, encourages the trustee(s) to consider the use of the
other modes of administration during the survey development stage. For
example, a telephone survey may be an appropriate and cost effective
method to test a design feature such as question ordering or the
understanding of technical terms. Further, NOAA is interested in
comparative empirical testing of other administration modes. If such
testing demonstrates that other modes can produce the type of
information and results comparable to in-person interviews, NOAA would
encourage the trustee(s) to consider the use of those methods for the
final survey.
``Standards for CV Studies''
Comment: Several commenters observed that if CV is to be included
in the rule, it is critical that NOAA provide strict guidelines that
minimize the problems associated with CV and identify cases where the
problems are relevant, despite efforts to minimize them.
Response: In this proposed rule, NOAA has provided guidelines for
the use of CV. The guidelines are discussed earlier in this preamble.
``Interviewer Effects''
Comment: One commenter suggested that CV surveys differ from actual
referenda since an interviewer is present. The commenter argued that
the presence of the interviewer can cause ``social desirability'' bias
since many of the programs that would be valued in a CV survey would
preserve or restore the environment, which may be considered ``socially
or politically'' correct. The implication of this bias would be
exaggerated expressions of willingness to pay. This comment recommended
that CV studies should test for the presence of such effects.
Response: Evidence of interviewer effects is sometimes found in
surveys that ask respondents questions about illegal behavior, such as
drug use, but there is no evidence to support the claim that the
presence of interviewers would bias the willingness-to-pay amounts
elicited in a CV survey used to assess natural resource damages.
Nevertheless, until research on this issue has produced definitive
conclusions, NOAA encourages the trustee(s) to be cognizant that such
effects may be present.
``Prior Approval''
Comment: One commenter recommended that the trustee(s) seeks
concurrence of the RP(s) prior to using a CV to measure passive use
values.
Response: NOAA always encourages cooperation between the trustee(s)
and RP(s) when appropriate. Due to the trustee's(s') fiduciary
responsibilities, however, the trustee(s) cannot be placed in the
posture of compromising his position in on-going or potential
litigation. Thus, the decision to seek prior concurrence from the RP(s)
is left to the discretion of the trustee(s). However, NOAA encourages
the trustee(s) and other interested parties, such as industry or
environmental groups, to consider cooperative development of CV surveys
for natural resources that may be at risk of being impacted by
discharges (i.e., resources of national marine sanctuaries). Such
studies could then be used as a reference value should a discharge
occur that injures such resources.
``Benefits Transfer Method''
Comment: One commenter stated that the concept of a ``unit day''
consisting of ``average per day values for resource uses'' is unsound
because it unfairly undervalues the injured resource by treating unique
resources as fungible. The commenter cited a statement in an earlier
Notice that unit day values should be accepted as a measure of damages
when there is a ``small spill or a small impact,'' and stated that if
such a measure is adopted, its use should only be allowed where there
is a ``small spill'' and ``small impact'' and the resource ranks low in
biodiversity.
Response: NOAA finds that the unit day value methodology is
appropriate to damage assessment, when applied under standard and
accepted procedures, and within the appropriate context. NOAA agrees
with the commenter that most applications of unit values are regarded
as relatively crude approximations of resource values. However, they
have proven useful when more rigorous, detailed, and theoretically
sound techniques are too costly or time consuming for the specific
application.
Comment: One commenter noted the use of user-day values of an
activity (i.e., recreation) or administratively-determined values have
been common for a variety of policy purposes in the past. Another
commenter noted that the absence of any accepted protocols for benefits
transfer make it important for NOAA to provide reasonable guidelines
for such transfers. Absence of such will assure lengthy and expensive
litigation for many incidents. Such guidance must be specific and yet
flexible. These guidelines should include the following criteria: (1)
Studies must meet minimum standards for quality assurance in terms of
data, theory, and analysis; (2) the activities from the transferred
studies must accurately mirror those impacted by the incident; and (3)
methodologies used for transfer should conform with standards for
benefits transfer, as they are developed.
Response: For purposes of damage assessments under OPA, use of
``benefits transfer'' is a practical necessity, given the time and
resources typically available to the trustee(s). While extensive
research into these procedures is underway in the academic community,
no formal benefits transfer protocol presently exists. The current
state-of-the-art in benefits transfer does suggest that where feasible,
it may be preferable to transfer a valuation function that
characterizes the variation in use values with characteristics of the
individuals and of the experience. However, NOAA agrees that the
quality of the studies to be transferred and the applicability of the
study context to the damage assessment context are important
considerations.
``General Guidance''
Comment: Many comments were received concerning the appropriate
discount rate. Several commenters stated that the rules should
establish that present value of future year damages be discounted at
the 10% discount rate as upheld in the Ohio vs. DOI ruling. Other
commenters were critical of the 10% rate. Those commenters indicated
that the 10% rate was too high, unrealistic, and inadequately
represented future generations' interest. Instead of the 10% rate, some
commenters recommended much lower rates, ranging from 0% to 3%. Others
recommended that NOAA allow the rate to be determined on a case-by-case
basis.
Response: NOAA finds that the appropriate rate of discount to be
used by a trustee(s) is the U.S. Treasury note. For a detailed
explanation of the rationale for this choice, see the earlier preamble
discussion on discount rates.
Comment: Several commenters addressed the concept of ``committed
use,'' i.e., current or planned public uses at the time of the
discharge, within OPA damage assessment regulations. Some expressed
concern that restricting damage determination to ``committed uses''
would significantly understate the true value of the injured resource,
and thus fail to provide adequate compensation to fully offset the
public loss.
Response: NOAA feels that the concept of committed use adequately
provides compensation for public losses resulting from resource injury
due to a discharge of oil. As stated in the preamble, committed use
implies that a resource is or has been directly utilized or employed or
there exist attributable passive use values. In addition, a documented
future use is considered a committed use, and thus would be included in
compensable and recoverable damages, assuming incomplete recovery of
the resource or delay in implementation of a future use due to a
recovery timelag.
Comment: One commenter suggested that estimates of diminution of
value must consider the availability of substitutes.
Response: NOAA agrees that in calculating the diminution in value,
it is desirable to take into account the availability of substitute
services. However, incorporating such information may increase the cost
and complexity of a damage assessment. Therefore the additional cost
and complexity should be undertaken only if the potential benefits from
an increase in accuracy of the damage estimate outweighs the potential
increase in damage assessment costs.
Comment: Some commenters observed that in assessing diminution in
value the extra cost of obtaining substitute services may be regarded
as the upper bound estimate of that loss.
Response: NOAA disagrees that the extra cost of obtaining
substitute services is necessarily an upper bound of the loss. Unless
the substitute source(s) is a perfect equivalent and has sufficient
capacity to accommodate additional demand without congestion, the extra
cost of obtaining those services will not reflect the true and complete
attributable loss.
Comment: A number of commenters addressed the subject of WTP versus
WTA compensation measures within the damage assessment context. Some of
these commenters noted that WTA would be the correct measure.
Response: As noted above, NOAA concurs that WTA is the correct
measure of compensation. At present, WTA is very difficult to elicit
from respondents in a reliable manner. Consequently, NOAA recommends
that CV studies elicit the more conservative WTP criterion at the
present time. For methodologies such as the travel cost model in which
exact (Hicksian) welfare measures, measuring monetized changes in
utility, can be derived from the Marshallian models through analytical
techniques, WTA and WTP measures are of equal reliability. In those
circumstances, WTA should be used where feasible.
Subpart H--Post-Assessment Preamble Language
Introduction
At the completion of an assessment of any type described in this
proposed rule, the trustee(s) shall prepare a Report of Assessment,
present a demand for damages to the RP, set up an account to receive
any payment of those sums, and develop a Final Restoration Plan. If a
settlement agreement is reached at any point before the formal
completion of the assessment, the same basic steps are required, except
that the sum agreed upon as damages constitutes the demand for damages.
Also, if there is a Regional Restoration Plan in place through prespill
planning to which the damages may be appropriately applied, the
trustee(s) need not develop a separate Final Restoration Plan.
Report of Assessment
At the conclusion of an assessment, the trustee(s) shall prepare a
Report of Assessment as described in Sec. 990.80 of the proposed rule.
The Report of Assessment should be made available to the public, but
the timing of publication may vary. In some cases, the trustee(s) may
wish to issue the Report of Assessment in connection with entry of a
consent decree resolving natural resource damage claims, in order to
give the court and the public adequate information to evaluate the
settlement.
The Report of Assessment consists of the DARP, as modified based
upon any comments received on the DARP. The Report of Assessment
describes the selected restoration approach and the estimated costs of
implementing that approach. The Report of Assessment will also contain
an index of the administrative record of the assessment as an
attachment.
Demand
At the conclusion of the assessment, the trustee(s) should present
to the RP(s) a demand in writing for the damages, as described in
Sec. 990.81 of the proposed rule. The demand should be delivered to the
RP(s) in a manner that will establish the date of receipt.
The demand shall include an identification of the discharge of oil
from which the claim arises, the natural resource trustee(s) asserting
the claim, and a brief description of the natural resources and/or
services for which the claim is being brought. The demand will include
the Report of Assessment as an attachment. Finally, the demand shall
state the amount of damages being sought.
The damages presented in the demand will include the estimated
costs to restore, replace, rehabilitate, or acquire the equivalent of
the injured natural resources and/or their services, the diminution in
value pending that recovery, costs already incurred in carrying out
emergency restoration, and the reasonable costs of conducting the
assessment and recovering the damages.
Review of Damage Figure
As explained earlier in this preamble, NOAA is proposing that the
restoration component of the Report of Assessment be granted record
review. Therefore, of the total damage figure, that part of damages
representing the estimated costs of implementing the restoration
component is that portion subject to record review. The other damages,
including but not limited to assessment costs and compensable values,
are to be reviewed with the trustee(s) receiving the benefit of the
rebuttable presumption.
Account
This proposed rule allows the use of various types of accounts into
which the trustee(s) may place sums recovered. If more than one trustee
is involved in the recovery, the proposed rule, in Sec. 990.82(a),
allows trustees to establish a ``joint trustee account'' under the
registry of the applicable federal court when there is a joint recovery
involving both federal trustees and state or Indian tribe trustees. A
federal court is listed since section 1017(b) of OPA states that
actions for natural resource damages shall be filed in a United States
district court. Such an account may be interest bearing, depending upon
the rules of the court. The joint trustee account should be managed by
all trustees through a mutually agreed upon trustee committee or
council. Such an account and its management could be agreed to in a
Memorandum of Understanding (MOU) such as the one suggested in
Sec. 990.16 and given as an example in Appendix A.
While the joint trustee account may be the preferred alternative,
trustees also have the option of dividing the recoveries and depositing
their respective amounts in their own separate accounts. These accounts
should be interest-bearing, revolving trust accounts. These accounts
may be new, separate accounts established for each incident or
preexisting accounts to which additional deposits are allowed for
specific purposes. In addition, trustees may establish escrow accounts
or any other type of investment account(s) unless specifically
prohibited by law.
Regardless of the placement of recoveries into joint or separate
accounts, the sums shall be used as specified in Sec. 990.83 of this
proposed rule. Also, the trustee(s) must maintain appropriate
accounting and reporting methods to ensure the proper use of sums
recovered, including independent auditing.
Although OPA clearly intends that trustee accounts are to be
interest bearing, there may be circumstances where this is not the
case, e.g., the rules of the court on court registry accounts do not
allow it. Therefore, it is essential that the trustee(s) determines the
likely repository of any potential recovery when determining the
appropriate damage amount to demand. The calculation of the expected
present value of the damages amount should be adjusted to correct for
the anticipated effects of inflation over the time estimated to
complete the restoration alternative chosen. The damage amount should
be adjusted by the rate payable on notes or bonds issued by the United
States Treasury with a maturity date that approximates the length of
time estimated to complete the chosen restoration alternative.
Because of the possibly long-term nature of the Regional
Restoration Plan described in Sec. 990.84(b) of this proposed rule,
this adjustment for inflation applies only to the incident- specific
restoration plans described in Sec. 990.84(a) of the proposed rule.
Use of Sums Recovered
As mentioned earlier, section 1006 of OPA establishes damages for
injury to natural resources to be the: (1) Costs of restoring,
rehabilitating, replacing, or acquiring the equivalent of the injured
natural resources and their services; (2) diminution in value of those
natural resources and/or services pending the restoration; and (3)
reasonable costs of assessing those damages. The damages recovered are
to be placed, upon receipt, into one of the accounts described in
Sec. 990.82 of the proposed rule.
At the trustee's(s') option, prior to the deposit of a recovery in
an account, the trustee(s) may request immediate receipt of those sums
recovered that represent assessment costs already incurred, costs
necessary to complete the assessment, emergency expenses, costs
necessary to develop the final restoration plan and costs to implement
a restoration plan or individual project that is part of that
restoration plan. The remaining sums, those consisting of restoration
or replacement costs and diminution of value, are damages representing
compensation for the injuries to the natural resources.
The damages representing compensation are to be spent to develop
and implement a final restoration plan. In order to refine this
restoration plan, the trustee(s) should be allowed to immediately use
that part of the damages representing compensation necessary to meet
the expenses involved in developing the final restoration plan.
Final Restoration Plan
The proposed rule describes two types of Final Restoration Plans.
First, the trustee(s) may develop an Incident-Specific Restoration Plan
to address the effects of the discharge of concern. This plan shall be
based upon the restoration component developed under subpart G of the
proposed rule. This Final Restoration Plan is the post-assessment
restoration planning document. This plan should serve to define the
objectives and the approach for the particular discharge site, and
establish the procedures for restoration, and where applicable,
rehabilitation, replacement, and acquisition of the equivalent actions.
The Final Restoration Plan incorporates all proposed restoration
activities for the discharge site that have been selected by the
trustee(s), taking into consideration public comments. Once damages are
awarded or a settlement with the RP(s) reached, the trustee(s) shall
review the restoration plan for possible modifications. The Final
Restoration Plan shall take into account the available funds;
priorities of natural resources and/or services of concern; direct and
indirect (i.e., interdependency and feedback between restoration
options) benefits to the natural resources and/or services of concern;
and sequence of restoration steps. If there are significant
modifications between the restoration component of the DARP made
available to the public prior to the damage award, and the restoration
plan that the trustee(s) intends to implement after receiving the
award, the rule requires the trustee(s) to make the revised plan
available to the public for a 30 calendar day comment period. The
trustee(s) should make the plan publicly available, along with a
response to public comments.
Under this proposed rule, the trustee(s) would also be allowed to
pool recoveries to apply them to a Regional Restoration Plan, as
described in Sec. 990.16 of this proposed rule. Where such a plan
already exists, whether developed through prespill planning efforts or
under regular management efforts, that plan may be used subject to the
conditions listed below. This option will likely be most useful in
areas with long-term pollution effects where damages from a single
discharge would be too small to ``restore'' the ecosystem or where the
planning costs for the restoration after a single discharge would be
quite high compared to the damage figure. This type of approach may
allow meaningful restoration efforts to result from several recoveries
received through the use of a compensation table or one of the Type A
models developed by DOI. However, where a Regional Restoration Plan has
not been developed, an Incident-Specific Restoration Plan must be
developed for use of the damages recovered.
The proposed rule states that, to qualify as a Regional Restoration
Plan under this rule, the plan must be developed through a process
consistent with the prespill planning process described in Sec. 990.16
of the proposed rule. The plan must also address the same or similar
resource injuries as those identified in the assessment procedure.
These requirements are completely consistent with the DOI rule at 43
CFR 11.93, which also allows for pooling damages assessed using a Type
A procedure.
Post Assessment Response to Comments
``Account''
Comment: Some commenters suggested the OPA rule allow for the
establishment of an account in the court registry, particularly where
federal and state trustees are jointly seeking natural resource
damages. One commenter suggested this joint account may ensure that
monies will be spent on restoration without obtaining special
appropriations from the legislature. It also provides a mechanism for
state and federal trustees to decide on expenditure of funds. Other
commenters, however, stated that the role of the court should be
limited to ensuring that uses of sums recovered are consistent with the
statutory directives, and noted that such accounts do not yield a high
rate of interest.
Response: NOAA agrees with the commenters suggesting deposit of
sums recovered into an account in the court registry and has allowed
that as an option in Sec. 990.82(a) of the proposed rule. NOAA also
notes that there are concerns over expanding the role of the court to
assume a greater role than the statute seems to allow. However, it is
unlikely that a court would usurp the role of the trustee(s) over the
management of the natural resources where the trustee(s) has developed
a plan for the use of such sums.
Comment: A few commenters indicated that a joint fund system will
only work if the trustees work well together and can agree on a process
to manage and disburse the funds. These commenters suggested that there
should be provisions for dispute mechanisms and for a working group
dissolution. Otherwise, the commenters were concerned that funds for
restoration would be stuck in the account pending resolution of
disputes.
Response: NOAA agrees that the trustee(s) should establish a
process for management and disbursement of the funds in a way to avoid
deadlock.
Comment: Two commenters noted that funds awarded for natural
resource damages under 43 CFR part 11 must go into non-interest bearing
accounts in the Federal Treasury, but that supplemental appropriations
language permitted DOI to place award monies into an interest-bearing
account.
Response: NOAA notes that the 43 CFR part 11 rule may have a
different provision for interest-bearing accounts. However, OPA does
provide for such accounts.
Comment: One commenter, although agreeing with the joint trustee
account, encouraged NOAA to develop alternatives that would eliminate a
trustee's submissions to a legislative appropriations process before
using the awarded monies. Another commenter suggested an alternative of
an additional ``Joint Trust Fund'' to be applied to costs other than
those paid by the RP(s). The single account would simplify
administration of the monies, as opposed to the trustees dividing the
funds into their various agency accounts.
Response: NOAA points out that the accounts provided for in
Sec. 990.82 of the proposed rule allow for use of funds without
appropriations, as provided for in section 1006(c) of OPA. Also, it
would be allowable for the trustee(s) to deposit monies other than
those paid by the RP(s) into these accounts.
Comment: One commenter recommended that the RP(s) pay directly for
services performed under its supervision in lieu of depositing funds in
the Federal Treasury. One commenter noted that if the RP(s) is to
underwrite a joint fund, or any fund, the RP(s) must legally have a
primary role in the management of the funds.
Response: NOAA agrees that the RP(s) may pay directly for
restoration actions (see discussion on ``Participation of the
Responsible Party'' earlier in this preamble). However, NOAA cannot
agree that the RP(s) who pays into an account would have a primary role
in managing the account. Once the money is paid to the trustee(s), it
is then the responsibility of the trustee(s) to manage the account
according to statutory directions. Under the discretion of the
trustee(s), the RP(s) may have the right to participate in the
development of the restoration plan, which will be paid for by the
monies in the account.
``Accounting for Expenditures''
Comment: One commenter also urged a final disclosure and accounting
of the recovered funds to the RP(s) and to the public.
Response: NOAA agrees that the trustee(s) must provide an
accounting of the way recovered sums are used. Therefore,
Sec. 990.82(d) of this proposed rule requires the trustee(s) to
maintain appropriate accounting and reporting methods to document the
use of the sums recovered.
``Use of Sums''
Comment: Several commenters noted that the only activities to which
recovered sums can be dedicated are assessments and the implementation
of restoration plans. Some commenters stated that the first priority of
the funds should be restoration, and only if restoration is not
possible, or when the cost of those restoration alternatives would be
grossly disproportionate to the value of the resources involved, should
other actions, such as acquisition of the equivalent be considered.
Another commenter strongly urged that any sums recovered by the federal
government for discharges occurring in a state should be spent in the
same state.
Response: NOAA agrees that sums recovered as damages should be used
to restore, replace, rehabilitate, or acquire the equivalent of the
injured natural resources as required by OPA. OPA suggests that
restoration, replacement, or rehabilitation be the first choices of
action, with the trustee(s) acquiring equivalent natural resources only
when restoration is not possible or the cost would be grossly
disproportionate to the value of the resources. The proposed rule
allows the trustee(s) to make those determinations. NOAA does not agree
that the rule should require that sums recovered by the federal
government always be spent in the state in which the incident occurred.
The nature of the federal trust resources that are not ``land'' is such
that those resources are likely either to cross state boundaries or to
be of national interest. For example, if a large number of migratory
birds is killed by a discharge of oil in a flyway, the most appropriate
method of restoring those populations may be to enhance the birds'
nesting grounds hundreds of miles away from the discharge site.
``Reimbursement of Assessment Costs''
Comment: Another commenter stated the rules should be clear about
the use of recovered sums that represent the costs of the assessment
and emergency restoration by ensuring the trustee(s) will have ready
access to that portion.
Response: NOAA agrees with this commenter and points out that
Sec. 990.83(a) specifies that the trustee(s) is to have immediate
reimbursement of assessment costs already incurred, costs necessary to
complete the assessment, emergency restoration expenses, costs
necessary to develop the final restoration plan and costs to implement
a restoration plan or individual project that is part of that
restoration plan.
Comment: Several commenters strongly rejected uses of ``recoveries
from previous spills'' or current recoveries held in suspense until
there is a sufficient amount of money to conduct restoration activities
``on an ecosystem, bay or area approach.'' Commenters argued that
pooling and usage of funds is contrary to the principles of
compensatory damages and avoidance of double damages enunciated by
Congress in passing OPA. Further, this usage contradicts section
1006(f) that ``there be a nexus between monies recovered resulting from
a particular spill and their use to restore or enhance the specific
resources `affected by a discharge.''' They cite section 1006(c), that
requires the trustee(s) to ``implement'' the specific restoration plans
that have provided the basis of the RP's(s') liability. Some commenters
argue that, only when the RP(s) can refer to the site-specific
restoration measures undertaken by the trustee(s) for a specific
discharge of oil, can it defend itself against overlapping claims by
other trustees.
One commenter noted that Congress defined ``equivalence'' as
properly focused on ``enhanc[ing] the recovery, productivity, and
survival of the ecosystem affected by a discharge.'' As such, both the
statute and legislative history reflect congressional intent for a
strong connection between recovered monies in a case and their
application.
Another commenter, however, supports a pooling of funds in order
to fund a restoration plan for an entire region, provided a legally-
approved regional restoration plan exists. The commenter supports this
so long as NOAA maintains the definition of ``acquisition of the
equivalent'' or ``replacement'' as it appeared in the ANPRM of March
13, 1992, so that sums are not spent on unlike resources.
Response: NOAA does not believe that pooling recoveries for use in
a Regional Restoration Plan contradicts the requirement in OPA that
recoveries be used to restore the resources affected by a discharge. A
relatively small recovery, assessed by a compensation table or Type A
model, is unlikely to be sufficient to restore a bay or estuary
affected by a discharge where many forces are working to degrade that
ecosystem. By pooling recoveries, the trustee(s) has a chance to carry
out meaningful actions to help that system recover. The trustee(s), in
the assessment, is to outline how the damage figure was derived, i.e.,
compensation table or Type A model. Those procedures are based on
restoration costs when feasible. If restoration is not feasible for
such a discharge, both the compensation table and Type A model base
damages on compensable value. Therefore, recoveries are to go to
restoring the services previously provided by the injured resources. In
this way, a Regional Restoration Plan will help return those services.
The RP(s) will be able to defend against an attempted double recovery
by showing how the damage figure is to be applied within the regional
restoration plan. As one commenter pointed out in the legislative
history, the monies recovered are closely tied to the ``ecosystem
affected.'' The definitions of ``replacement'' and ``acquisition of the
equivalent'' remain in the proposed rule and should help ensure that
the pooled recoveries are, in fact, meaningfully used for the recovery
of the system.
```Excess' Recoveries''
Comment: Many commenters noted that any excess monies should be
deposited in the Oil Pollution Trust Fund and not be used for unrelated
environmental projects.
Response: The proposed rule allows for the recovery of damages
required by OPA, namely: (1) the cost of restoring, rehabilitating,
replacing or acquiring the equivalent of, the damaged resources pending
restoration; (2) the diminution in value of those natural resources
pending restoration; plus (3) the reasonable cost of assessing those
damages. The recovery of those three items is not excess recovery. The
trustee(s) is to use the money to restore, rehabilitate, replace, or
acquire the equivalent of the damaged resources and/or services
provided by those resources and to reimburse the reasonable costs of
conducting the assessment. Any recoveries that may be left over after
implementing the restoration plan shall be deposited in the Oil Spill
Liability Trust Fund.
National Environmental Policy Act, Executive Order 12866, Regulatory
Flexibility Act, and Paperwork Reduction Act
The National Oceanic and Atmospheric Administration has determined
that this rule does not constitute a major federal action significantly
affecting the quality of the human environment. Therefore, no further
analysis pursuant to Section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)) has been prepared. The
General Counsel, in accordance with the Regulatory Flexibility Act,
certifies to the Chief Counsel for Advocacy, Small Business
Administration, that this proposed rule will not have a significant
economic effect on a substantial number of small entities.
The National Oceanic and Atmospheric Administration has determined
that this document is not a major rule under Executive Order 12866. The
rule provides optional procedures for the assessment of damages to
natural resources. It does not directly impose any additional cost. In
addition, estimates of the potential economic effects of this rule are
well below $100 million annually. As the rule applies to federal,
state, and tribal entities acting as trustees for natural resources, it
is not expected to have a significant effect on a substantial number of
small entities.
It has been determined that this rule does not contain information
collection requirements that require approval by the Office of
Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 15 CFR Part 990
Coastal zone, Endangered and threatened species, Energy,
Environmental protection, Estuaries, Fish, Fisheries, Fishing,
Gasoline, Historic preservation (archeology), Hunting, Incorporation by
reference, Indian lands, Marine pollution, Migratory birds, National
forests, National parks, National Wild and Scenic Rivers System,
Natural resources, Navigable waters, Oil, Oil pollution, Petroleum,
Plants, Public lands, Recreation and recreation areas, Rivers,
Seashores, Shipping, Waterways, Water pollution control, Water
resources, Water supply, Water transportation, Wetlands, Wildlife.
Dated: December 30, 1993.
Katharine W. Kimball,
Deputy Assistant Secretary for Oceans and Atmosphere.
Under the authority of the Oil Pollution Act of 1990, and for the
reasons set out in this preamble, title 15 of the Code of Federal
Regulations, chapter IX is proposed to be amended to add a new
Subchapter E--Oil Pollution Act Regulations and a new part 990 as set
forth below.
SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
PART 990--NATURAL RESOURCE DAMAGE ASSESSMENTS
Subpart A--General
Sec.
990.10 Scope and Applicability.
990.11 Purpose.
990.12 Overview.
990.13 Definitions.
990.14 Recovery of Damages.
990.15 Administrative Record for Development of Draft Assessment/
Restoration Plan.
990.16 Prespill Planning.
990.17 Participation of the Responsible Party(ies). RP(s).
990.18 Compliance with Other Applicable Laws and Statutes.
990.19 Review of Regulations.
Subpart B--Preassessment Phase
990.20 Preassessment Phase--General.
990.21 Preassessment Phase--Preassessment Determination.
990.22 Preassessment Phase--Damage Assessment Determination.
990.23 Preassessment Phase--Damage Assessment Selection.
990.24 Preassessment Phase--Data Collection and Analysis.
990.25 Preassessment Phase--Emergency Restoration.
Subpart C--Draft Assessment/Restoration Plan
990.30 Draft Assessment/Restoration Plan--General.
990.31 Draft Assessment/Restoration Plan--Content.
990.32 Draft Assessment/Restoration Plan--Development.
990.33 Draft Assessment/Restoration Plan--Other Elements.
Subpart D--Assessment Phase--Compensation Formulas
990.40 Compensation Formulas--General.
990.41 Compensation Formulas--Estuarine and Marine Formula.
990.42 Compensation Formulas--Inland (Freshwater) Waters Formula.
Subpart E--Assessment Phase--Type A Models
990.50 Type A Models--General.
990.51 Type A Models--Natural Resource Damage Assessment Model for
Coastal and Marine Environments, Version 1.2.
Subpart F--Assessment Phase--Expedited Damage Assessment
990.60 Expedited Damage Assessment--General.
990.61 Expedited Damage Assessment--Selection.
990.62 Expedited Damage Assessment--Objectives and Approach.
990.63 Expedited Damage Assessment--Injury Determination.
990.64 Expedited Damage Assessment--Injury Quantification.
Subpart G--Assessment Phase--Comprehensive Damage Assessment
990.70 Comprehensive Damage Assessment--General.
990.71 Comprehensive Damage Assessment--Injury Determination.
990.72 Comprehensive Damage Assessment--Injury Quantification.
990.73 Comprehensive Damage Assessment--Restoration/General.
990.74 Comprehensive Damage Assessment--Restoration Component
Development.
990.75 Comprehensive Damage Assessment--Analysis and Selection of
Restoration Alternatives.
990.76 Comprehensive Damage Assessment--Evaluation of Restoration.
990.77 Comprehensive Damage Assessment--Compensable Values.
990.78 Comprehensive Damage Assessment--Compensable Values,
Measurement Techniques.
990.79 Comprehensive Damage Assessment--Compensable Values,
Implementation Guidance.
Subpart H--Post-Assessment Phase
990.80 Post-assessment Phase--Report of Assessment.
990.81 Post-assessment Phase--Demand.
990.82 Post-assessment Phase--Accounts.
990.83 Post-assessment Phase--Use of Sums Recovered.
990.84 Post-assessment Phase--Final Restoration Plan.
Appendix A to Part 990--Draft Memorandum of Understanding
Appendix B to Part 990--Memorandum of Agreement
Appendix C to Part 990--Expedited Damage Assessment: Oil
Characteristics
Appendix D to Part 990--List of Acronyms
Authority: 33 U.S.C. 2706(e).
Subpart A--General
Sec. 990.10 Scope and applicability.
The Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq.,
provides for the prevention of, liability for, removal of, and
compensation for the discharge of oil into or upon navigable waters,
adjoining shorelines, or the Exclusive Economic Zone. OPA also provides
for the designation of federal, state, tribal, and foreign officials to
act on behalf of the public as trustee(s) for natural resources. In the
event that natural resources are injured, lost, destroyed, or the loss
of use of natural resources occurs as a result of a discharge of oil
covered by OPA, these officials are authorized to assess natural
resource damages, present a claim for those damages, and develop and
implement a plan for the restoration, rehabilitation, replacement, or
acquisition of the equivalent of the natural resources under their
trusteeship. Because the assessment procedures provided in this part
are not mandatory, a trustee(s) may use other assessment procedures.
However, this proposed rule must be used by the natural resource
trustee(s) in order to obtain the rebuttable presumption provided by
section 1006(e)(2) of OPA. This part applies to discharges covered by
OPA. This part supplements the procedures established under the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP),
40 CFR Part 300, for the identification, investigation, study, and
response to a discharge of oil, and provides procedures by which the
natural resource trustee(s) can determine compensation for injuries to
natural resources that are not addressed by response actions conducted
pursuant to the NCP.
Sec. 990.11 Purpose.
This part provides a range of standardized and cost- effective
procedures for assessing natural resource damages. These procedures
will allow expeditious actions on the part of the trustee(s) to return
natural resources and/or services to the public as compensation for
injuries resulting from a discharge of oil. The results of an
assessment performed by the federal, state, or tribal natural resource
trustee(s) according to these procedures shall be accorded the
evidentiary status of a rebuttable presumption as provided in section
1006(e)(2) of OPA.
Sec. 990.12 Overview.
(a) General. This part provides guidance on three basic phases that
may be a part of a natural resource damage assessment under OPA. These
three phases are: Preassessment Phase, Assessment Phase, and Post-
Assessment Phase.
(b) Organization. Each of the three basic phases described above
has various components. Phase I includes the Preassessment Phase--
subpart B of this part. Phase II includes the Assessment Phase--
subparts C, D, E, F and G of this part. Finally, Phase III includes the
Post-Assessment Phase--subpart H of this part.
Sec. 990.13 Definitions.
Acquisition of the equivalent means obtaining natural resources
and/or services that the trustee(s) determines are comparable to those
injured.
Assessment area means the area in which natural resources and/or
services are affected by the discharge of oil.
Baseline means the condition(s) of the natural resources and/or
services, taking into account natural or other (human-induced)
variability, that would have existed had the discharge of oil under
investigation not occurred. In the absence of reliable data on
variability, the baseline is the condition of the resources and/or
services of interest immediately prior to the discharge.
Baseline data means those data that are systematically collected
for natural resources and/or services environmental parameters of
interest over a period of time and on a regular basis.
CERCLA means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601 et
seq., frequently referred to as the ``Superfund Act.''
Commercial services or ``resources of commercial importance'' means
those natural resources and/or services that are oriented toward the
provision of income or profit for a private party. Examples include:
agriculture, shipping, commercial fishing, charter boat operations,
water intake for plant operations, mining, and log harvesting.
Compensable values means the total diminution in value of the
injured natural resources and/or services as a result of the discharge,
from the onset of the discharge until recovery to baseline or
comparable conditions is deemed complete by the trustee(s).
Comprehensive damage assessment (CDA) means a range of procedures
to assess damages to natural resources and/or services based on
complex, prolonged studies.
Contributing factor means where multiple factors may have
contributed to an indivisible injury to a natural resource and/or
service, the discharge of oil may be considered a contributing factor
to the injury.
Control means conditions where all variables, except the presence
of the discharged oil, are the same, and which can be manipulated,
measured, and monitored.
Cost-effective means that when two or more activities provide the
same or comparable level of benefits to the natural resources and/or
services, the least costly activity providing that level of benefits
will be selected.
Damages means the amount of money calculated to compensate for
injury to, destruction of, loss of, or loss of use of natural
resources, including the reasonable costs of assessing or determining
the damage, which shall be recoverable by the United States, a state,
Indian tribe, or foreign trustee.
Destruction means the total loss of a natural resource and/or
service.
Direct use value means the value individuals derive from direct use
of a natural resource, including consumptive and nonconsumptive uses.
Discharge means any emission of oil (other than natural seepage),
intentional or unintentional and includes, but is not limited to,
spilling, leaking, pumping, pouring, emptying, or dumping.
Ecological services or ``resources of ecological importance'' means
the physical, chemical, and biological functions that one natural
resource provides for another. Examples include the provision of food,
protection from predation, nesting habitat, biodiversity, erosion
control, and waste assimilation.
Effect means the impact on or result of a natural resource and/or
service exposed to the discharge of oil.
Equivalent resources mean those natural resources that provide the
same or comparable services as the injured resources.
Exclusive Economic Zone means the zone established by Presidential
Proclamation Number 5030, dated March 10, 1983, including the ocean
waters of the areas referred to as ``eastern special areas'' in Article
3(1) of the Agreement between the United States of America and the
Union of Soviet Socialist Republics on the Maritime Boundary, signed
June 1, 1990.
Expedited damage assessment (EDA) means a range of procedures to
assess damages to natural resources and/or services based on limited,
focused studies.
Exposed to means all or part of a natural resource that may be in
contact with oil or with any medium containing the oil.
Exposure means that the natural resource was exposed and there is a
pathway between the discharge and exposed natural resource.
Fund means the Oil Spill Liability Trust Fund, established by
section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509).
Historical data means those data that are collected for natural
resources and/or services but that may be temporally or spatially
discontinuous.
Incident means an occurrence having the same origin, involving one
or more vessels, facilities, or any combination thereof, resulting in
the discharge or substantial threat of discharge of oil.
Injury means any adverse change in a natural resource or impairment
of a service provided by a resource relative to baseline, reference, or
control conditions. Injury incorporates the definitions of
``destruction,'' ``loss,'' and ``loss of use.''
Injury resulting from a discharge of oil (or injury caused by the
discharge of oil) has been determined when the trustee(s) has
demonstrated that:
(1) With direct exposure,
(i) The natural resource was exposed;
(ii) There is a pathway between the discharge and exposed natural
resource; and
(iii) The exposure of oil, its components, or by-products has been
shown by rigorous and appropriate scientific methodology to have an
adverse effect on the natural resource in laboratory experiments or the
field; or
(2) In the absence of direct exposure,
(i) The adverse effect on or impaired/diminished use of a natural
resource has been shown by rigorous and appropriate scientific
methodology; and
(ii) The adverse effect on or impaired/diminished use of the
natural resource would not have occurred but for the fact of the
discharge or threat of a discharge.
Lead administrative trustee (LAT) means a natural resource trustee
who is designated on an incident-by-incident basis for the purpose of
preassessment and damage assessment, and chosen by the other trustees
whose natural resources are affected by the incident. The LAT
facilitates effective and efficient communication between the OSC and
other natural resource trustees regarding their activities during the
Response Phase. An LAT may also be chosen to coordinate prespill
planning for damage assessment.
Loss means a reduction in a natural resource.
Loss of use of means a reduction in a service provided by the
natural resource.
Natural resource(s) or resource(s) means land, fish, wildlife,
biota, air, water, ground water, drinking water supplies, and other
such resources belonging to, managed by, held in trust by, appertaining
to or otherwise controlled by the United States (including the
resources of the Exclusive Economic Zone), any state or local
government, Indian tribe or foreign government.
Natural resource damage assessment or assessment means the process
of collecting and analyzing information to determine damages for
injuries to natural resources and/or services as set forth in this
part.
Navigable waters means waters of the United States, including the
territorial sea.
Oil means oil of any kind or in any form, including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, oil mixed with
wastes other than dredged spoil, but does not include petroleum,
including crude oil or any fraction thereof, which is specifically
listed or designated as a hazardous substance under subparagraphs (A)
through (F) of section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601) and
which is subject to the provisions of that Act.
OPA means Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.
Passive use value means the value individuals place on natural
resources that are not linked to direct use of a natural resource by
the individual, including, but not limited to, the value of knowing the
natural resource is available for use by family, friends, or the
general public; the value derived from protecting the natural resource
for its own sake; and the value of knowing that future generations will
be able to use the natural resources.
Pathway means the course the oil takes from the point of discharge
to, between, and among natural resources.
Person means an individual, corporation, partnership, association,
state, municipality, commission, or political subdivision of a state,
or any interstate body.
Protocol means scientific, economic, legal, or regulatory accepted
procedures used as guidance to implement an activity.
Reasonable cost of assessment means those costs incurred in
performing a natural resource damage assessment, or any part thereof,
in accordance with this rule.
Recovery means the return of the injured natural resource and/or
service to its baseline or comparable condition within the constraints
of natural or other (human-induced) variability.
Recovery period means the length of time required for the injured
natural resources and/or services to return to their baseline or
comparable condition.
Recreational services or resource of recreational importance means
the direct use of natural resources by individuals for purposes of
enjoyment or relaxation. Examples include consumptive uses (those uses
that involve harvesting of the resource) such as fishing and hunting,
as well as nonconsumptive uses such as swimming, picnicking, boating,
bird watching, nature photography, hiking, and camping.
Reference means a natural resource and/or service that is
physically, chemically, and/or biologically similar to that affected by
the discharge.
Rehabilitation means actions that bring injured natural resources
and/or services to a state different from baseline conditions, but
still beneficial to the environment and public.
Replacement means actions that substitute natural resources and/or
services for those injured. The natural resources and/or services that
are substituted provide the same or comparable resources and/or
services as those injured.
Resources of special significance means a category of natural
resources that is afforded statutory or regulatory protection (e.g.,
threatened or endangered species), or is of cultural or archaeological
significance (e.g., religious or native American artifacts).
Responsible party (RP) means a person described in or potentially
described in one or more of the categories set forth in section
1001(32) of OPA.
Restoration means actions that return injured natural resources
and/or services to their baseline condition.
Services or natural resource services means the physical, chemical,
biological, aesthetic, and cultural functions performed by the natural
resources, including the human uses of those functions.
State means the several states of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
U.S. Virgin Islands, the Commonwealth of Northern Marianas, and any
other territory or possession over which the United States has
jurisdiction.
Technical feasibility or technically feasible means that the
technology necessary to implement an element of the damage assessment
plan or a restoration methodology has a reasonable chance of successful
completion in an acceptable period of time.
Trustee(s) means those officials of the federal and state
governments, of Indian tribes, and of foreign governments designated
according to section 1006(b) of OPA who may present a claim for and
recover damages for injury to natural resources.
Type A procedure means one of the simplified natural resource
damage assessment procedures requiring minimal field observation, found
in subpart D of 43 CFR part 11.
Type B procedure means an alternative procedure for comprehensive
natural resource damage assessments, currently found in subpart E of 43
CFR part 11.
Sec. 990.14 Recovery of damages.
(a) General. In an action filed pursuant to section 1006 of OPA,
the natural resource trustee(s) may recover:
(1) Damages based on injuries occurring from the onset of the
discharge through the recovery period (including monitoring costs),
less any mitigation of those injuries by response actions taken or
anticipated, plus any increase in injuries as a result of response
actions taken or anticipated;
(2) The costs of emergency restoration under Sec. 990.20(g) of this
part; and
(3) The reasonable costs of the assessment, including:
(i) The cost of performing the preassessment, assessment, and post-
assessment phases and procedures provided in this part; and
(ii) Any administrative or legal costs, including base and
incremental costs, incidental to assessment and restoration; and
(4) Interest on the amounts recoverable as provided in section 1005
of OPA.
(b) Statutory limitations on liability. The determination of the
damage amount shall consider any applicable limitations on liability
provided for in section 1004 of OPA.
(c) Double recovery. There shall be no double recovery for damages
as a result of the same discharge, as set forth in section 1006(d)(3)
of OPA.
(d) Parallel assessments. Nothing in this part precludes the
determination of damages for injuries to separate natural resources
and/or services resulting from a single discharge, so long as such
determination does not result in the double recovery of damages.
Therefore, the trustee(s) may conduct parallel assessments, combining
assessment procedures for separate resources and/or services.
(e) Statute of limitations. Actions for damages and assessment
costs shall consider the statute of limitations set forth in section
1017(f) of OPA.
(f) Settlements. The trustee(s) and responsible party(ies) may
settle a claim for natural resource damages at any time following a
discharge of oil. Federal trustees shall seek the approval of the
Department of Justice in the compromise of any claim of the United
States. Subject to prespill restoration plans, the trustee(s) shall
provide for public review of such agreed upon settlements and the
related restoration plans.
(g) Oil Spill Liability Trust Fund. Any excess damages shall be
deposited in the Oil Spill Liability Trust Fund in accordance with
section 1006(f) of OPA.
Sec. 990.15 Administrative record for development of draft assessment/
restoration plans
(a) Purpose. The administrative record has four basic purposes:
(1) Facilitate selection of restoration alternatives by providing a
central repository for scientific data;
(2) Document the trustee's(s') consideration of the relevant
factors in selecting restoration actions;
(3) Facilitate public participation; and
(4) Provide the basis for judicial review.
(b) General. The trustee(s) shall establish an administrative
record upon which the trustee(s) shall base the selection of
restoration alternatives. The restoration plan shall include the
rationale for selection of the alternatives and an estimate of the cost
of implementing the plan.
(c) Content. An administrative record should consider the documents
that form the basis of the selection of the trustee's(s') plan to
restore, rehabilitate, replace, or acquire equivalent resources.
(1) Documents that form the basis of the trustee's(s') selection of
this plan will generally include:
(i) Documents containing factual information, data, or analysis of
the factual information or data, that may form a basis for the
selection of a plan;
(ii) Guidance documents, technical literature, and site-specific
policy memoranda that may form a basis for the selection of a plan;
(iii) Relevant documents that are timely submitted by the RP(s) or
other members of the public; and
(iv) Decision documents such as the Report of Assessment.
(2) Documents that do not form the basis for the selection of a
plan, such as draft documents, internal memoranda, and day-to-day notes
of staff, should not be included in the administrative record, unless
such documents contain information that forms the basis of selection of
the plan and the information is not included in any other document in
the administrative record. Documents relating exclusively to liability
or calculation of compensable values will ordinarily not be included in
the administrative record.
(d) Level of detail. The contents and level of detail of the record
will vary according to the type of procedure selected. Certain types of
information will be common to all assessments, regardless of the type
of procedure selected. However, the volume of material compiled for the
administrative record should be consistent with the scope of the
assessment and restoration.
(e) Supplementing the record. (1) Supplements to the record may be
allowed if the:
(i) Interested party did not receive actual or constructive notice
of the Draft Assessment/Restoration Plan and the opportunity to comment
on the plan;
(ii) Information submitted does not duplicate information already
contained in the administrative record; and
(iii) Information raises sufficiently significant issues regarding
the scope, effectiveness, or cost of the plan as to warrant having the
trustee(s) reconsider the plan.
(2) Where the Draft Assessment/Restoration Plan provides for the
development of certain components at a later date, the information or
documents used to develop these components should be added to the
administrative record as they become available.
(3) Where the Draft Assessment/Restoration Plan is modified, the
public will have the right to review and comment upon modifications
that are, in the opinion of the trustee(s), significant.
(4) Where the Final Restoration Plan of Sec. 990.84 is a result of
significant modifications of the restoration component in the Report of
Assessment, the administrative record should be supplemented with any
additional material or data considered in developing that modification.
(f) Availability of the administrative record. (1) To the extent
practicable, the administrative record should be compiled and made
available for review and comment as documents are generated or received
by the trustee(s). However, the degree of public notice and involvement
in the administrative record should be determined by the trustee(s) on
a case-by-case basis.
(2) The administrative record should be made available for public
review and comment concurrently with the Draft Assessment/Restoration
Plan.
(g) Judicial review. The administrative record shall form the basis
of review of the Report of Assessment in any judicial or administrative
proceeding.
Sec. 990.16 Prespill planning.
(a) Prespill planning. To the extent practicable and in conjunction
with other willing participants where appropriate, the trustee(s)
should conduct the following prespill activities:
(1) Develop a natural resource damage assessment management and
technical team. The size of the team should be a function of the scope
and complexity of the assessment.
(2) Identify outside experts to assist in the design and conduct of
studies, and serve in independent peer review;
(3) Identify support services;
(4) Collect information on natural resources and/or services
potentially affected by discharge of oil along high risk areas;
(5) Identify the potential trustee(s) and a process to designate a
lead administrative trustee (LAT), using guidance in paragraph (b) of
this section at sites that may be affected by discharges of oil;
(6) Identify sources of information for background data;
(7) Design a general approach and develop protocols for an early
sampling program; and
(8) Establish a centralized data management system for natural
resource damage assessment baseline data.
(b) Lead Administrative Trustee. (1) Trustees are encouraged to
cooperate and coordinate any assessment that involves coexisting or
contiguous natural resources or concurrent jurisdiction. They may
arrange to divide responsibility for implementing the assessment in any
manner that is agreed to by all of the affected natural resource
trustees with the following conditions:
(i) A lead administrative trustee should be designated to
administer the assessment. The lead administrative trustee should act
as coordinator and contact regarding all aspects of the assessment. The
lead administrative trustee should be designated by mutual agreement of
all the natural resource trustees.
(ii) If there is a reasonable basis for dividing the assessment,
the natural resource trustees may act independently and pursue separate
assessments, actions, or claims so long as the claims do not overlap.
In these instances, the natural resource trustees should coordinate
their efforts, particularly those concerning the sharing of data and
the development of the Draft Assessment/Restoration Plan (DARP).
(iii) If a natural resource trustee(s) takes action as a result of
a discharge of oil prior to the designation of a lead administrative
trustee, all damage assessment actions performed by that trustee(s)
shall be documented and transmitted to the lead administrative trustee
to avoid duplication of efforts and double counting.
(2) If the discharge affects trust resources of the other natural
resource trustee(s) as a result of coexisting or contiguous natural
resources or concurrent jurisdiction, the trustee(s) may conduct an
assessment pursuant to this rule without designating a lead
administrative trustee. However, if appointed the lead administrative
trustee, conducting an assessment pursuant to this rule, shall ensure
that all other known affected natural resource trustees are notified
that a DARP is being developed. This notification shall include the
results of the Preassessment Phase.
(c) Regional restoration plan. The trustee(s) is encouraged in
prespill planning to develop Regional Restoration Plans. These plans
should be developed, or existing plans modified, through a public
review and comment process consistent with the restoration planning
process described in subpart G of this part.
(d) Trustee memorandum of understanding (MOU). It is strongly
recommended that, to the extent practicable, natural resource trustees,
on some logical geographic or political basis, enter into a Memorandum
of Understanding (MOU) to ensure the coordination and cooperation of
the trustees in the initiation of assessment and assessment of damage
determination for injuries to natural resources and/or services
resulting from a discharge of oil and the application of any natural
resource damages recovered toward the restoration, rehabilitation,
replacement, and/or acquisition of equivalent natural resources.
The MOU is recommended because of the importance of integrating and
coordinating the assessment of natural resource damages for injuries to
natural resources affected by a discharge, seeking compensation for
those injuries to natural resources and/or services, and restoration of
those affected resources and/or services. This MOU should be prepared
either in anticipation of a discharge of oil or as soon as possible
after an actual discharge of oil. A sample MOU is given in Appendix A
of this part.
Sec. 990.17 Participation of the responsible party(ies) RP(s).
(a) General. When practicable, the trustee(s) should seek the
participation of the responsible party(ies) in the natural resource
damage assessment process. Such participation is not mandatory and is
at the discretion of the trustee(s).
(b) Prespill activities. The trustee(s) is encouraged to invite the
participation of the potential responsible party(ies) in prespill
planning activities authorized in Sec. 990.16 of this part. Where
practicable, such prespill planning shall be in connection or
coordination with the development of Area Contingency Plans authorized
under section 4202 of OPA. In their prespill plans, the trustee(s) and
potential responsible party(ies) may consider, but not be limited to,
the following: identification of likely natural resources at risk,
possible protective measures taken in the event of a discharge, and
identification of personnel and agencies likely involved in the event
of a discharge.
(c) Preassessment activities. If deemed practicable by the
trustee(s), the trustee(s) should invite the responsible party(ies) to
participate in the conduct of the Preassessment Phase in accordance
with Sec. 990.20 of this part.
(d) Assessment activities--(1) Offer to participate. Upon
completion of the preassessment and determination by the trustee(s)
under Sec. 990.23 of this part to continue assessment procedures under
subpart F (EDA) or subpart G (CDA) of this part, the trustee(s) should
invite the participation of the identified RP(s) in such assessment
actions. Such offer shall be in writing and will serve as the
notification under Sec. 990.23(c) of this part. The RP(s) shall have
ten calendar days to respond to the trustee's(s') invitation. Sampling
or data collection and emergency restoration that are appropriate and
necessary during the ten-day waiting period may continue. If the RP(s)
has not responded to the trustee(s) in that time, the trustee(s) may
continue activities geared towards the conduct of a solo assessment/
restoration process.
(2) Development of agreement. If the responsible party(ies)
indicates a willingness to participate in further assessment
activities, the trustee(s) and RP(s) shall, in good faith, initiate
negotiations to develop an enforceable agreement considering the
guidance in subsection (f) of this section. However, such negotiations
should not prevent the trustee(s) from conducting assessment activities
during this time period. Such agreement may address all or any part of
the damage assessment and may be conditioned upon the RP(s) agreement
to pay trustee costs. If the trustee(s) and RP(s) cannot reach any
agreement within 45 calendar days from the first day of negotiations,
the trustee(s) may continue activities geared towards a solo
assessment/restoration process.
(3) Draft Assessment/Restoration Plan. The participation of the
responsible party(ies) must be specifically noted in the Draft
Assessment/Restoration Plan developed under subpart C of this part in
order to provide an adequate opportunity for public review.
(e) Restoration activities. The trustee(s) and responsible
party(ies) may agree to participate jointly in restoration activities
identified in the Restoration Plan developed through any of the
assessment procedures identified in this part. In determining whether
to invite the responsible party(ies), the trustee(s) may consider, but
not be limited to, the following factors:
(1) The willingness of the responsible party(ies) to participate in
restoration activities (If the responsible party(ies) has not
participated in earlier phases of the assessment, the trustee(s) may
also consider the reasons for the responsible party(ies) not
participating in those earlier activities.);
(2) The ability (knowledge, expertise, personnel) of the
responsible party(ies) to participate in restoration activities; and
(3) The willingness of the responsible party(ies) to pay for
restoration activities and for trustee costs.
(f) Jointly-conducted phased assessments.
(1) To encourage cooperative assessments, the trustee(s) and
responsible party(ies) are authorized to enter into enforceable
agreements to jointly conduct any assessment activities in steps or
phases. These enforceable agreements should contain, but are not
limited to, the following provisions:
(i) Identification of the step or phase jointly conducted and end
product of enforceable agreement (data collection, data analysis,
etc.);
(ii) Identification of the activities and responsibilities of the
respective parties;
(iii) Conditions for terminating the enforceable agreement;
(iv) Provisions for nonperformance;
(v) Provision that the end product of the enforceable agreement
(data, studies, and other information) will be included in the
administrative record;
(vi) Provisions for funding for the various activities; and
(vii) An agreement that end products of the joint effort cannot be
challenged by either party with collateral data, studies, and other
information, collected outside the joint assessment process.
(2) The trustee(s) and responsible party(ies) should stipulate that
all data, studies, and other information, jointly collected shall be
included in the administrative record at the completion of each
enforceable agreement. The trustee(s) and RP(s) should also stipulate
that each party to the agreement will be barred from introducing new or
different data, studies, or other information collected outside the
joint process to challenge the jointly collected data in either a
judicial or administrative proceeding under OPA.
(3) A sample enforceable agreement is given in appendix B of this
part.
Sec. 990.18 Compliance with other applicable laws and statutes.
(a) Worker human health and safety. All worker human health and
safety considerations specified in the NCP for response actions shall
also apply to the assessment/restoration process.
(b) Resource protection. Before taking any actions under this part,
particularly before taking samples or making determinations of
restoration or replacement, compliance is required with any applicable
statutory consultation or review requirements, including, but not
limited to, the Endangered Species Act; the Migratory Bird Treaty Act;
the Marine Protection, Research, and Sanctuaries Act; and the Marine
Mammal Protection Act, that may govern the taking of samples or in
other ways affect alternative management actions.
(c) State laws. Nothing in this part shall affect, or be construed
or interpreted as preempting, any state or political subdivision
thereof from promulgating natural resource damage assessment
regulations under applicable state or common law. Nothing in this part
shall affect or be construed or interpreted as preempting any state or
political subdivision thereof from the use of their applicable natural
resource damage assessment regulations under applicable state or common
law.
Sec. 990.19 Review of regulations.
NOAA plans to review and revise as appropriate these regulations as
often as necessary, but no less than once every five years.
Subpart B--Preassessment Phase
Sec. 990.20 Preassessment phase--General.
(a) Purpose/Scope. The Preassessment Phase provides for early
action in the case of a discharge of oil through a two-step process
consisting of: Preassessment Determination, to decide whether to
continue with preassessment; and Damage Assessment Determination, to
decide which damage assessment procedure to conduct, if any. This
process is based on limited data collection and analysis. This part
also provides for notification, coordination, estimation of assessment
costs, reporting, and emergency restoration.
(b) Notification. (1) Notification should be consistent with the
NCP. According to the NCP, the OSC or lead response agency generally
provides notification to the natural resource trustee(s) when natural
resources and/or services may be injured by a discharge of oil. If the
trustee(s) learns of an unidentified or unreported discharge of oil,
the trustee(s) shall report that discharge to the appropriate authority
as designated in the NCP.
(2) After learning of a discharge of oil, the trustee(s) should
attempt to notify all other known potential trustees of the possibility
of a natural resource damage assessment. Actions taken by the
trustee(s) shall be consistent with the NCP and this subpart.
(3) In addition, in accordance with section 1011 of OPA, the OSC or
lead response agency shall consult with the affected trustee(s)
concerning removal actions.
(c) Coordination. The trustee(s) should coordinate the
Preassessment Phase with the response agency(ies), as appropriate,
consistent with the NCP and prespill plans developed pursuant to OPA.
To the extent practicable, the Preassessment Phase should also be
coordinated with the trustee(s) whose natural resources and/or services
are affected by the discharge of oil. The trustee(s) may invite the
RP(s) to participate in the Preassessment Phase.
(d) Preassessment Phase costs. (1) Preassessment Phase costs
include and are recoverable only for trustee-approved activities that
deal directly with preassessment. Examples of preassessment costs
include, but are not limited to, costs necessary for: Notification;
coordination; Preassessment Determination; Damage Assessment
Determination; data collection and analysis; report preparation, and
emergency restoration.
(2) Preassessment Phase costs shall not reflect response-related
actions and non-incident specific activities performed by the
trustee(s) in the management of natural resources and/or services.
(3) The costs stipulated in Sec. 990.20 (d)(1) shall be supported
with appropriate and sufficient documentation.
(e) Preassessment Phase Report. At the conclusion of the
Preassessment Phase, the trustee(s) shall prepare a Preassessment Phase
Report documenting all preassessment actions taken, estimated costs
related to those actions, and decisions to proceed with preassessment
and damage assessment/restoration actions. If no additional actions are
undertaken, the Preassessment Report becomes the Report of Assessment.
If the trustee(s) conducts further actions, the Preassessment Phase
Report becomes a part of the Report of Assessment.
Sec. 990.21 Preassessment phase--preassessment determination.
(a) Purpose. Following notification of a discharge of oil, the
trustee(s) shall conduct a Preassessment Determination to decide
whether to continue with the Preassessment Phase.
(b) Scope. The trustee(s) shall gather readily available
information on the nature of the discharge and environmental setting,
i.e., circumstances of the discharge incident, oil characteristics,
nature of the receiving environment, and natural resources and/or
services characteristics.
(c) Conditions. Using such information, the trustee(s) will decide
if the following conditions are met:
(1) The discharge does not qualify for an exclusion under section
1002(c) of OPA;
(2) Trust natural resources, as defined by OPA, and/or services may
be adversely affected by the discharge; and
(3) There is a reasonable probability that the trustee(s) can make
a successful damage claim based on the scientific, economic, and legal
merits of the case, i.e., potential for injury resulting from the
discharge and successful and meaningful restoration and/or
compensation.
(d) Continuing with preassessment. If these conditions are met, the
trustee(s) may continue with the Preassessment Phase. If all conditions
are not met, further preassessment activities should not be conducted.
Sec. 990.22 Preassessment phase--damage assessment determination.
(a) Purpose. Following the decision to proceed with the
Preassessment Phase, the trustee(s) collects data sufficient to decide
which damage assessment procedures to conduct, if any.
(b) Scope. Damage Assessment Determination requires that the
trustee(s):
(1) Characterize the discharge and environmental setting based on
similar but more detailed data collection and analysis efforts
conducted in Preassessment Determination, encompassing circumstances of
the discharge incident, oil characteristics, nature of the receiving
environment, and natural resources and/or services characteristics;
(2) Determine potential exposure based on direct and indirect
exposure or the threat of exposure;
(3) Determine potential injury based on physical, chemical,
biological, or other attributes of the natural resource and/or service;
(4) Characterize the potential risk (probable cause-effect
associations) to natural resources and/or services based on the weight
of evidence and best professional judgment of the information developed
above;
(5) Estimate extent of injury to natural resources and/or services
based on spatial and temporal boundaries; and
(6) Estimate damages based on possible environmental and/or
economic values, likely cost of restoration actions, and all
assessment-related costs.
(c) Additional injury determination studies. If the trustee(s)
determines that no further assessment activities are to be conducted,
but that additional information regarding the discharge may be
beneficial, the trustee(s) with or without the RP(s) may decide to
conduct limited injury determination studies to collect additional
information verifying that no significant injury to natural resources
and/or services has resulted from the discharge. Where no injury is
identified, the costs of such studies are not recoverable under this
subpart and shall be borne by the trustee(s). Should such additional
studies indicate that significant and quantifiable injury has occurred
to natural resources and/or services, the trustee(s) may reinitiate the
Preassessment Phase and the costs are then part of the assessment
costs.
Sec. 990.23 Preassessment phase--damage assessment selection.
(a) Decision on type of assessment. The trustee(s), at his
discretion, may select any of the following assessment procedures at
the completion of the Preassessment Phase:
(1) Compensation Formula;
(2) Type A model;
(3) Expedited Damage Assessment (EDA); or
(4) Comprehensive Damage Assessment (CDA).
(b) Parallel assessments. The trustee(s) may use more than one
procedure for a discharge of oil, provided there is no double counting.
(c) Responsible Party option. The RP(s) may request the trustee(s)
to conduct an EDA or CDA procedure, so long as the costs of that study
are provided by the RP(s) in advance of conducting the procedure.
(d) Estimates. Using the estimates developed in Sec. 990.22(b)(6),
the trustee(s) should select the assessment procedure(s) that is
reasonable. These estimates will necessarily be of a preliminary
nature, subject to change as more information is obtained. The
trustee(s) may select from the procedures identified in subparts D, E,
F, and G of this part.
(e) General considerations. The trustee(s) should examine the
following general considerations for the most appropriate damage
assessment procedure:
(1) The size and nature of the discharge and environmental setting;
(2) The extent to which the discharge of oil is expected to cause
injury to natural resources and/or services;
(3) The expected environmental and/or economic values provided by
those affected natural resources and/or services;
(4) The extent to which response actions carried out or planned
will avoid further injury to natural resources and/or services without
further action;
(5) The extent to which the discharge meets the conditions for
using the selected damage assessment procedures;
(6) The extent to which injury to natural resources and/or services
can be determined with available information and quantification
methods;
(7) The extent to which restoration alternatives can return injured
natural resources and/or services to their baseline or comparable
conditions;
(8) The extent to which damages based upon injury to natural
resources and/or services can be determined with available information
and quantification methods; and
(9) Whether the anticipated damage assessment procedure(s) is cost
effective.
(f) Specific factors. The trustee(s) should consider the following
specific factors in selecting a particular damage assessment procedure.
(1) Compensation formulas. The Compensation Formulas require the
least amount of information concerning the discharge. All information
necessary for the use of the procedures is likely gathered during the
Preassessment Phase. Procedures for conducting the compensation
formulas are found in subpart D of this part. The trustee(s) shall
consider, but not be limited to, the following factors when determining
whether use of the compensation formulas is appropriate:
(i) The amount of the discharge is between 10 gallons and 50,000
gallons, 24 hours after the discharge begins;
(ii) The likely injury and damages resulting from the discharge are
appropriate for calculation using the compensation formulas as
described in either: ``Compensation Formula for Natural Resource Damage
Assessments under OPA: Oil Spills into Estuarine and Marine
Environments, Volumes I-IV'' or ``Compensation Formula for Natural
Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters, Volumes I-III''; and
(iii) The discharge is of the nature where the accurate
quantification of injury and damages would not be cost-effective in the
determination of the trustee(s).
(2) Type A models. Any one of the Type A models found at 43 CFR
part 11 subpart D may be used to determine the damages resulting from a
discharge. Procedures for conducting the Type A models are found in
subpart E of this part. The trustee(s) shall consider, but not be
limited to, the following factors when determining whether use of a
Type A model is appropriate:
(i) The conditions of the discharge are sufficiently similar to the
conditions of 43 CFR 11.33(b);
(ii) The compensation formulas of subpart D of this part are not
sufficient alone to estimate the injury and damages resulting from the
discharge; and
(iii) There is no other cost-effective procedure available to
estimate the injury and damages resulting from the discharge.
(3) Expedited Damage Assessment (EDA). This procedure focuses the
trustee(s) on determining and quantifying injuries to selected natural
resources and/or services. Procedures for conducting an EDA are found
in subpart F of this part. The trustee(s) may determine that the use of
an expedited damage assessment procedure is appropriate after
considering, but not limited to, the following factors:
(i) The use of the compensation formula or Type A model alone may
not sufficiently account for the injury and damages resulting from the
discharge;
(ii) There is readily available information on the nature of the
discharge and its effect on natural resources and/or services;
(iii) The injury and damages resulting from the discharge can be
adequately calculated by conducting limited, focused injury
determination/quantification and compensable values studies as outlined
in subpart F of this part; or
(iv) Potential restoration actions can be implemented without
complex, prolonged injury determination/ quantification and compensable
values studies.
(4) Comprehensive Damage Assessment (CDA). The trustee(s) may
determine that the circumstances of the particular discharge will
require a more lengthy and detailed damage assessment. Procedures for
conducting a CDA are found in subpart G of this part. The trustee(s)
shall consider, but not be limited to, the following factors in
selecting a CDA:
(i) The injury and damages resulting from the discharge can best be
determined through a complex, prolonged process, involving a broad
scope of injury determination/ quantification and compensable values
studies;
(ii) Information concerning the nature of the discharge and its
effects on the natural resources and/or services at risk is not readily
available; and
(iii) Potential restoration actions cannot be determined or
implemented without substantive injury determination/quantification and
compensable values studies.
Sec. 990.24 Preassessment phase--data collection and analysis.
(a) Purpose. The purpose of data collection and analysis (data
collection) in the Preassessment Phase is to ensure that there is
sufficient information to evaluate the risk to natural resources and/or
services resulting from the discharge of oil.
(b) Scope. (1) The trustee(s) may conduct limited data collection
throughout the Preassessment Phase.
(2) Only information on natural resources and/or services that is
related to the discharge, and considered relevant to the assessment
process, restoration alternatives likely to be implemented, and/or
compensable values, should be collected. Such information serves as the
basis for the Assessment Phase.
(3) When practicable, data collection protocols and Quality
Assurance (QA) procedures should follow the guidance provided in
subpart C of this part.
(4) When reasonably practicable, the trustee(s) should collect the
following types of information during the Preassessment Phase:
(i) Data necessary to make a determination to proceed with the
Preassessment Phase;
(ii) Ephemeral or perishable data that may be lost if not collected
immediately; and
(iii) Necessary data that serves as the basis for the selected
damage assessment procedure, the absence of which data would prevent
the trustee(s) from proceeding with damage assessment determination of
Sec. 990.23, i.e., input into the compensation formulas or Type A
models, or the study design for the EDA or CDA.
(5) The trustee(s) is encouraged to collect baseline, reference,
control, or other necessary information to determine the appropriate
assessment procedures to the extent that such information is available
or can be readily determined.
Sec. 990.25 Preassessment phase--emergency restoration.
(a) Purpose. After notification and during response, the
trustee(s), with the approval of the OSC, may undertake emergency
restoration such that it does not interfere with response actions.
Emergency restoration is deemed necessary to restore natural resources
and/or services in those limited situations where the imminent loss of
that resource and/or service may occur before any assessment of injury
and restoration plan could be developed and implemented.
(b) Costs. Any costs associated with emergency restoration may be
claimed as part of the damage claim or as uncompensated claims under
section 1012(a)(4) of OPA.
Subpart C--Draft Assessment/Restoration Plan
Sec. 990.30 Draft assessment/restoration plan--general.
(a) Purpose. The purpose of the Draft Assessment/Restoration Plan
(DARP) is to ensure that the assessment/restoration is performed in a
planned, cost-effective, and systematic manner, and provide for public
review and comment of the restoration plans as required under section
1006 of OPA.
(b) DARP requirement. The trustee(s) shall develop plans for the
assessment of damages and restoration of natural resources and/or
services affected by the discharge. These plans shall be developed in
accordance with the requirements and procedures provided in this
subpart and in subparts D, E, F, and G of this part.
(c) Prespill plans. To the maximum extent practicable, a DARP
developed by the trustee(s) under this subpart shall be consistent with
any applicable prespill plans completed under Sec. 990.16, unless the
trustee(s) justifies and documents the departure from such plans.
(d) Administrative Record, Report of Assessment. The DARP, along
with any significant modifications and associated comments and
responses, shall be placed in the administrative record. The DARP, as
modified after public review, as appropriate, is the basis of the
Report of Assessment.
(e) Plan approval. The trustee(s) shall have final approval as to
the content and development of the DARP.
(f) NEPA compliance. The DARP shall be developed in order to
fulfill applicable NEPA requirements.
Sec. 990.31 Draft assessment/restoration plan--content.
(a) General. (1) The DARP shall address the four major components
of the Assessment Phase, the:
(i) Injury determination component, i.e., results of injury
determination studies, to the extent they are known, with documentation
of those results;
(ii) Injury quantification component, i.e., the results of
quantification studies, to the extent they can be calculated, with
documentation of those results;
(iii) Restoration planning component, i.e., the evaluation,
selection, and estimated cost of planned restoration actions; and
(iv) Compensable values component, i.e., valuation studies
planned, subject to Sec. 990.32(c)(4) of this part, with the results of
those studies if deemed appropriate by the trustee(s).
(2) For CDAs, where there are prolonged (multi-year) plans, the
trustee(s) need not develop all components of the DARP simultaneously,
but may develop annual reports to update the DARP as the assessment
progresses.
(b) DARP information requirements. The DARP should include:
(1) A brief identification of the discharge of concern based upon
information from the Preassessment Phase;
(2) Descriptions of the natural resources and/or services
involved;
(3) A statement of authority for asserting trusteeship, or co-
trusteeship, for those natural resources and/or services considered in
the DARP;
(4) The Preassessment Phase Report; and
(5) Those requirements of each of the assessment procedures,
described in subparts D, E, F, and G of this part, used by the
trustee(s).
(c) Level of detail. The level of detail for each component of the
DARP shall be consistent with what is appropriate for the type of
assessment procedures being conducted.
Sec. 990.32 Draft assessment/restoration plan--development.
(a) Timing of DARP development. (1) Following the development and
trustee approval of the injury determination and quantification
components of the DARP, the trustee(s) should implement those
components of the DARP to the extent practicable.
(2) As data are produced in the injury determination and
quantification components, the trustee(s) should complete the
restoration component and the design of the compensable values
component for the injured natural resources and/or services.
(b) Development requirements for multiple trustees. The trustee(s)
should fulfill the following requirements in developing a DARP for
assessments in which there are multiple trustees:
(1) A lead administrative trustee should be designated to
administer the DARP. The lead administrative trustee should act as
coordinator and contact regarding all aspects of the DARP.
(2) The trustees are encouraged to cooperate and coordinate any
DARP that involves coexisting or contiguous natural resources or
concurrent jurisdiction. They may arrange to divide responsibility for
implementing the components of the assessment in any manner that is
agreed upon by all of the affected natural resource trustees.
(c) Public involvement. (1) Injury determination and quantification
components of the DARP. The trustee(s) shall provide notification of
the selection of the methodologies used to determine and quantify
injury to natural resources and/or services pursuant to the
compensation formula, Type A model, and the EDA. The trustee(s) shall
provide formal public review and comment for the injury determination
and quantification components of the CDA.
(2) Restoration planning component of the DARP. The trustee(s) must
provide for public notice and comment of the restoration planning
component of the DARP. Where there is no Regional Restoration Plan
developed and adopted following public review and comment pursuant to
prespill planning, as described in Sec. 990.16 of this part, the
trustee(s) must provide for public review and comment of the
restoration component of DARPs developed pursuant to the compensation
formula, Type A model, EDA, and CDA. Where a Regional Restoration Plan
has been developed and adopted following public review and comment
pursuant to prespill planning as described in Sec. 990.16 of this part,
the trustee(s) must provide for public notice, review and comment of
the intent to apply one or more recoveries from a compensation formula
or Type A assessment to the Regional Restoration Plan. The trustee(s)
must provide for public review and comment of the restoration
components of DARPs developed pursuant to an EDA or CDA.
(3) The trustee(s) may provide for public notification or review of
the compensable values component of the DARP, subject to
Sec. 990.32(c)(5) of this part.
(4) Public review period. Where the trustee(s) is required to
provide a minimum for public review and comment, the trustee(s) must
provide a minimum of 30 calendar days for public review and comment.
The trustee(s) may grant reasonable extensions for that review.
(5) Exception to public notification, review, and comment. It is at
the discretion of the trustee(s) to provide for notification, review,
and comment of those portions of the DARP concerning the calculation of
compensable values. The trustee(s) may further withhold the description
of studies and methodologies for determining the damages for the
compensable values from public review and comment. Such damages are
still afforded the rebuttable presumption, but may not be eligible for
judicial review on the record.
(6) Method of publication. Notification or publication of a DARP
may be provided in a publication of local, state, regional, or national
circulation, as deemed appropriate to the scope of the assessment/
restoration by the trustee(s).
(d) Modification. (1) The DARP may be modified at any stage of the
assessment/restoration process as new information becomes available.
(2) Any modification to that portion of the DARP that has been the
subject of review and comment that, in the judgment of the trustee(s),
is significant shall be made available for review and comment for a
period of at least 30 calendar days, with reasonable extensions granted
as appropriate, before tasks subject to modification are begun.
(3) Any modification to the DARP that in the judgment of the
trustee(s) is not significant may be made available for review at the
discretion of the trustee(s), but the implementation of such
modification need not be delayed as a result of such review.
(e) DARP implementation by RP(s). At the option of the trustee(s)
and if agreed to by any RP(s) acting jointly, the RP(s) or any other
party under the direction, guidance, and monitoring of the trustee(s)
may implement all or any part of the DARP as approved by the
trustee(s). Any decision to involve the RP(s) shall be documented in
the DARP.
Sec. 990.33 Draft assessment/restoration plan--other elements.
(a) Protocols. Selection of specific data collection protocols in
damage assessment is left to the discretion of the trustee(s). In
general, protocols should be applicable to the discharge and
environmental setting, cost-effective, and provide information
consistent with data quality requirements.
(b) Quality Assurance (QA). The trustee(s) may implement or modify
existing, or develop new quality assurance (QA) program and project
plans relative to the requirements and constraints of incident.
(c) Data Management. Where appropriate, the trustee(s) should
develop a data management plan to accommodate the input, uses, needs,
and access for the data.
Subpart D--Compensation Formulas
Sec. 990.40 Compensation formulas--general.
(a) General. Based upon best professional judgment, the trustee(s)
may determine damages as compensation for injury to natural resources
and/or services using the compensation formulas authorized by this
subpart for all or part of the assessment. The formulas may be used by
the trustee(s) for discharges of oil ranging from ten gallons to 50,000
gallons and where the trustee(s) determines that there has not been a
significant loss in passive use values.
(b) Seasons. For the purposes of this subpart, the seasons of the
year are defined as follows:
(1) Winter=January 1 through March 31;
(2) Spring=April 1 through June 30;
(3) Summer=July 1 through September 30; and
(4) Fall=October 1 through December 31.
(c) Incorporation by reference. The following publications are
incorporated by reference:
(1) ``Compensation Formula for Natural Resource Damage Assessments
under OPA: Oil Spills into Estuarine and Marine Environments,'' Volumes
I-IV. Available from DART, Suite 604, 1825 Connecticut Avenue, N.W.,
Washington, DC 20235.
(2) ``Compensation Formula for Natural Resource Damage Assessments
under OPA: Oil Spills into Inland (Freshwater) Waters,'' Volumes I-III.
Available from DART, Suite 604, 1825 Connecticut Avenue, N.W.,
Washington, DC 20235.
(d) Damage claim. (1) The damages include the compensation formula
result plus any damages computed by the trustee(s) due to beach and/or
shoreline closure, plus for inland (freshwater) waters damages due to
lost boating days, plus the reasonable costs of conducting the
assessment. Additional damages determined through other assessment
methods may also be included so long as there has been no double
counting. This damage figure is included in the Report of Assessment
and the Demand under Secs. 990.80 and 990.81 of this part, and is
documented in the administrative record.
(2) Damages calculated using one of the compensation formulas
provided in subpart D of this part are conclusive for the injuries
included in that formula. Judicial review of the demand shall be
limited to the applicability of the formula and the accuracy of any
site-specific input data.
(e) Final Restoration Plan. Based upon the final damages recovered,
the trustee(s) shall develop a restoration component plan, either
implementing restoration actions identified in a prespill Regional
Restoration Plan or as an incident-specific plan as provided by subpart
H of this part.
Sec. 990.41 Compensation formulas--estuarine and marine formula.
(a) Use of estuarine and marine formula. To use the Estuarine and
Marine formula, the trustee(s) must identify:
(1) Whether the discharge occurred in a marine, estuarine,
subtidal, or intertidal area using the definitions given in ``Volume
I--Technical Documentation'' of ``Compensation Formula for Natural
Resource Damage Assessments under OPA; Oil Spills in Estuarine and
Marine Environments;''
(2) Location of discharge, using the boundaries and definitions of
the provinces provided in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA; Oil Spills in Estuarine and Marine Environments,'' to determine in
which province the discharge occurred;
(3) Habitat type that typifies the habitat affected by the
discharge using definitions provided in ``Volume I--Technical
Documentation'' of ``Compensation Formula for Natural Resource Damage
Assessments under OPA; Oil Spills in Estuarine and Marine
Environments;''
(4) Type of oil discharged as determined by the definitions
provided in ``Volume I--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA: Oil Spills
in Estuarine and Marine Environments;''
(5) Amount discharged. The trustee(s) shall subtract from the total
amount discharged the trustee's(s') estimate of the volume of oil that
is cleaned up within 24 hours from the beginning of the discharge, if
the cleanup is from the water. Cleanup from shorelines shall not be
subtracted;
(6) Season of discharge, as defined in Sec. 990.40 of this subpart;
and
(7) Amount of beach and/or shoreline closed, if any, determined by
linear measure and days closed.
(b) Determining damage figure. The trustee(s) should:
(1) Determine the damages using the estuarine and marine
compensation formula based upon the requirements of this subsection and
``Volumes I through IV--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA; Oil Spills
in Estuarine and Marine Environments;''
(2) Determine the appropriate habitat/province scenario using
``Volume I--Technical Documentation'' of ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills in Estuarine
and Marine Environments.'' Locate the table in Appendix A corresponding
to the season discharge and the type of oil discharged using the
scenario and volume discharged, identify the applicable formula.
Compute the damage figure as instructed in ``Volume I--Technical
Documentation'' of ``Compensation Formula for Natural Resource Damage
Assessments under OPA; Oil Spills in Estuarine and Marine
Environments;'' and
(3) Determine damages for beach and/or shoreline closure by
identifying the linear measure of beach and/or shoreline closed, in
accordance with Volume III of the ``Compensation Formula for Natural
Resource Damage Assessments under OPA; Oil Spills in Estuarine and
Marine Environments,'' and multiplying the length by the time period
for which the beach and/or shoreline was closed.
Sec. 990.42 Compensation formulas--inland (freshwater) waters formula.
(a) Use of Inland (Freshwater) formula. To use the Inland
(Freshwater) Waters formula, the trustee(s) must identify:
(1) The appropriate freshwater habitat in which the discharge
occurred, as defined in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters;''
(2) Location of the discharge, using the boundaries and definitions
of the provinces provided in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters;'' to determine in
which province the discharge occurred;
(3) Habitat type that typifies the habitat affected by the
discharge using definitions provided in ``Volume I--Technical
Documentation'' of ``Compensation Formula for Natural Resource Damage
Assessments under OPA: Oil Spills into Inland (Freshwater) Waters;''
(4) The type of oil discharged as determined by the definitions
provided in ``Volume I--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA: Oil Spills
into Inland (Freshwater) Waters;''
(5) Amount discharged. For those large water bodies identified in
``Volume I--Technical Documentation'' of ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters;'' the trustee(s) may subtract from the total
amount discharged the trustee's(s') estimate of the volume of oil that
is cleaned up within 24 hours from the beginning of the discharge, if
the cleanup is from the water. Cleanup from all other inland
(freshwater) waters and from shorelines shall not be subtracted;
(6) Season of discharge, as defined in Sec. 990.40 of this subpart;
(7) Amount of shoreline and/or beach closed, if any, determined by
linear measure; and
(8) Amount of recreational boating area closed, if any, determined
by square kilometer.
(b) Determining damage figure. The trustee(s) should:
(1) Determine the damages using the Inland (Freshwater) Waters
compensation formula based upon the requirements of this subsection and
``Volumes I through III--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA; Oil Spills
in Inland (Freshwater) Waters;''
(2) Determine the appropriate habitat/province scenario using
``Volume I--Technical Documentation'' of ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills in Inland
(Freshwater) Waters.'' Locate the table in Appendix A corresponding to
the season discharge and the type of oil discharged using the scenario
and volume discharged, identify the applicable formula. Compute the
dollar figure as instructed in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters;''
(3) Determine damages for beach and/or shoreline closure by
identifying the linear measure of beach and/or shoreline closed in
accordance with Volume III of ``Compensation Formula for Natural
Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters,'' and multiplying the length by the time period
for which the beach and/or shoreline was closed; and
(4) Determine damages for lost recreational boating closure by
identifying the square kilometers closed and multiplying by the density
of use and value per day as found in Volume III of ``Compensation
Formula for Natural Resource Damage Assessments under OPA: Oil Spills
into Inland (Freshwater) Waters,'' and the number of days the area was
closed.
Subpart E--Type A Models
Sec. 990.50 Type A models--general.
(a) The trustee(s) may use a computer model for natural resource
damage assessments under OPA.
(b) The trustee(s) shall document the use of a computer model
through the development of the DARP under subpart C of this part.
Sec. 990.51 Type A models--natural resource damage assessment model
for coastal and marine environments, version 1.2.
(a) The trustee(s) may use the Natural Resource Damage Assessment
Model for Coastal and Marine Environments (NRDAM/CME), Version 1.2,
incorporated by reference in 43 CFR 11.18 and 11.41. The trustee(s)
must show that the conditions of the discharge are sufficiently similar
to the conditions of 43 CFR 11.33(b).
(b) The assessment component for application of the NRDAM/CME will
contain the items required in 43 CFR 11.41(c), which are the inputs
required to apply the NRDAM/CME.
(c) Damage claim. The total damage figure includes the result of
the application of the NRDAM/CME plus the reasonable costs of
conducting the assessment. This damage figure is included in the Report
of Assessment and the Demand under Secs. 990.80 and 990.81 of this part
and documented in the administrative record.
(d) Restoration. Based upon the final damages recovered, the
trustee(s) shall develop a restoration component plan, either
implementing restoration actions identified in the prespill plan
developed under Sec. 990.16(a) or as an incident-specific plan under
subpart G of this part.
Subpart F--Expedited Damage Assessment
Sec. 990.60 Expedited damage assessment--general.
(a) Purpose/Scope. The purpose of an EDA is to determine and
quantify injury based on limited, focused studies in order to
facilitate restoration as soon as possible. This subpart provides the
trustee(s) with guidance and procedures for selecting and undertaking
an EDA.
(b) Scope of natural resources and services. The trustee(s) should
focus injury determination and quantification on those resources that
are of commercial, recreational, or ecological importance or of special
significance as deemed by the trustee(s).
(c) Time frame. Where possible, the trustee(s) should complete the
Assessment Phase, including, but not limited to, the development of a
restoration component within two years from the date of the discharge.
This time frame, however, is not mandatory. The trustee(s) need not
complete the Assessment Phase before beginning to prepare the damage
claim, undertake settlement negotiations, if appropriate, provide
public review of the restoration component and finalize the restoration
plan.
(d) EDA costs. EDA costs cover the same categories as those defined
in a CDA, including costs associated with injury determination and
quantification, restoration planning, and compensable values
determination. However, costs associated with injury determination and
quantification should be limited to the focused studies undertaken.
(e) Administrative Record. The trustee(s) should document all
pertinent activities and decisions within the Administrative Record, as
with a CDA.
Sec. 990.61 Expedited damage assessment--selection.
(a) Guidelines. The trustee(s) should examine the various
guidelines in evaluating whether an EDA is appropriate for a given
discharge and exercise best professional judgment in making the final
determination. Factors to be considered by the trustee(s) include, but
are not limited to:
(1) The use of the compensation formulas or Type A models alone
would not sufficiently account for the injury and damages resulting
from the discharge.
(2) There is readily available information on the nature of the
discharge and its effect on natural resources and/or services.
(3) The injury and damages resulting from the discharge can be
adequately calculated by conducting limited, focused injury
determination/quantification and compensable values studies.
(4) Potential restoration actions can be implemented without
complex, prolonged injury determination/quantification and compensable
values studies.
(b) [Reserved].
Sec. 990.62 Expedited damage assessment--objectives and approach.
(a) The objectives of an EDA are to:
(1) expeditiously determine and quantify injuries to selected
natural resources and/or services resulting from a discharge using
limited, focused studies and baseline or reference/control information,
and
(2) Provide the basis for restoration and recovery of natural
resources and/or services.
(b) To achieve these objectives, the EDA procedure consists of: (1)
Injury determination; (2) Injury quantification; (3) Restoration; and
(4) Compensable values.
Sec. 990.63 Expedited damage assessment--injury determination.
(a) General. Injury resulting from (or caused by) a discharge of
oil has been determined when the trustee(s) has demonstrated that:
(1) With direct exposure,
(i) The natural resource was exposed;
(ii) There is a pathway between the discharge and exposed natural
resource; and
(iii) The exposure of oil, its components, or by-products has been
shown by rigorous and appropriate scientific methodology to have an
adverse effect on the natural resource in laboratory experiments or the
field; or
(2) In the absence of direct exposure,
(i) The adverse effect on or impaired/diminished use of a natural
resource has been shown by rigorous and appropriate scientific
methodology; and
(ii) The adverse effect on or impaired/diminished use of the
natural resource would not have occurred but for the fact of the
discharge or threat of a discharge. The trustee(s) should establish
baseline or reference/control conditions from which changes in
environmental and biological parameters may be measured.
(b) Contributing factor. Where multiple factors may have
contributed to an indivisible injury to a natural resource and/or
service, the discharge of oil may be considered a contributing factor
to the injury.
(c) Exposure. The trustee(s) shall confirm that at least one of the
natural resources and/or services identified as potentially injured in
the Preassessment Phase has been exposed or threatened to be exposed to
the oil. To confirm exposure, the trustee(s) should determine that:
(1) The natural resource was exposed to the discharge; and
(2) There is a pathway between the discharge and the exposed
natural resource.
(d) Identify natural resources and services. The trustee(s) should
identify those natural resources and services for which injury
determination and quantification will be conducted. Eligible natural
resources will include those that are of recreational, commercial, or
ecological importance, or of special significance.
(e) Initiate early restoration planning. The trustee(s) should
begin the restoration planning process by developing a restoration
Scoping Statement to identify potential restoration alternatives to
remedy the effects of the discharge of oil. In undertaking restoration
planning for an EDA, the trustee(s) should refer to Secs. 990.73,
990.74, 990.75 and subpart G to supplement the guidance provided in
this section.
(f) Scope of injuries. Injuries to natural resources and/or
services for which the trustee(s) may claim damages will, by
definition, be limited relative to a CDA, and may include, but not
limited to, mortality, sublethal effects, and lost or diminished
services. Categories of injury which meet the acceptance criteria
specified in Sec. 990.71(e) and which are appropriate to the EDA are
currently being developed.
(1) Mortality. (i) The trustee(s) may derive estimates of acute
mortality to fish and wildlife resources from body counts in the
affected area in accordance with acceptable procedures such as the
American Fisheries Society Fish-Kill Investigations (See PART II of
``Monetary Values of Freshwater Fish and Fish-Kill Counting
Guidelines,'' American fisheries Society Special Publication Number 13,
1992). In addition, the trustee(s) may determine acute mortality using
standard, laboratory toxicity testing or acceptable models.
(ii) Where appropriate, the trustee(s) shall identify direct
mortality of the flora resulting from the oil. Surveys may be employed
to estimate both initial and delayed mortality.
(iii) The trustee(s) may estimate indirect mortality such as
starvation, failure to nest, and hatching failure, loss of critical
habitat from the existing literature or from limited, focused studies.
(2) Sublethal effects. The trustee(s) should identify sublethal
effects that the trustee(s) deems significant and that can be
documented with limited, focused studies. Sublethal effects may
include, but are not limited to, reproductive impairment, reduction in
growth rates of the flora and/or fauna, and changes in species
diversity and abundance utilizing the habitat.
(3) Services. The trustee(s) should determine injury to services.
(i) The trustee(s) should inventory all services provided by the
resource prior to the discharge and identify those lost or diminished,
or expected to be lost or diminished. Services that may be considered
for an EDA include, but are not limited to, recreational, commercial,
ecological, and those of special significance.
(ii) The trustee(s) should determine whether there are adequate
baseline data to support the calculation of lost or diminished
services.
Sec. 990.64 Expedited damage assessment injury quantification.
(a) General. The trustee(s) should quantify injuries to natural
resources and/or services identified through injury determination. The
trustee(s) should also establish the extent of the lost or diminished
services. Quantification of natural resources and/or services can be
accomplished through before-after (using baseline data) or reference/
control-impact study designs, using combined (at the community/
population level) and/or individual (at the organism/biomarker effects
level) injuries.
By definition, EDA quantification will be scaled down relative to the
CDA.
(b) Develop Restoration Component. The trustee(s) shall develop the
restoration component pursuant to the guidance in Secs. 990.73-990.76
of this part.
(c) Compensable Values Component.
(1) The trustee(s) should develop the compensable value component
by:
(i) Determining the lost services associated with the restoration
components;
(ii) Identifying the appropriate measurement methods to estimate
the compensable values of those services; and
(iii) Implementing these methods.
(2) Estimating compensable values may be based on site-specific
analysis, provided such analysis falls within the trustee's(s') general
time parameters prescribed by the EDA. Assignment of compensable values
may also be based on estimates, equations, models, or data from
existing valuation studies through the use of benefits transfer.
(3) The trustee(s) should follow the guidance in Secs. 990.77-
990.79 of subpart G in developing the compensable values component of
an EDA.
Subpart G--Comprehensive Damage Assessment (CDA)
Sec. 990.70 Comprehensive damage assessment--general.
(a) Purpose/Scope. The purposes of the CDA are to:
(1) Comprehensively determine the nature and extent of injury to
natural resources and/or services;
(2) Develop a restoration plan to remedy that injury; and
(3) Determine the total compensable values for discharges requiring
a complex, prolonged assessment/restoration process as deemed necessary
by the trustee(s). The CDA consists of Injury Determination, Injury
Quantification, Restoration, and Compensable Values.
(b) CDA costs. CDA costs include those costs associated with injury
determination and quantification, restoration planning, and compensable
values determination. Costs incurred should be limited to those the
trustee(s) considers necessary.
(c) Administrative Record. The trustee(s) should document all
pertinent activities and decisions within the Administrative Record.
The Administrative Record should provide the rationale for conclusions
regarding each component of the CDA process.
Sec. 990.71 Comprehensive damage assessment--injury determination.
(a) Purpose/Scope. (1) The purpose of injury determination in a CDA
is to verify or modify the nature of the injury to natural resources
and/or services resulting from the discharge of oil.
(2) Injury determination in a CDA should be made for natural
resources and/or services that can be restored or for which the public
can be compensated.
(3) Should the trustee(s) be able to document the nature of the
injury to the natural resources and/or services resulting from the
discharge of oil, he should then proceed to Injury Quantification. If
the trustee(s) is unable to determine the nature of the injury to the
natural resources and/or services resulting from the discharge, further
assessment efforts should be terminated and the results of the Injury
Determination documented in the Report of Assessment.
(b) Objectives and study designs. The trustee(s) should develop
objectives governing the overall CDA and for the individual component
studies. The trustee(s) should also develop individual study designs to
serve as the framework for the CDA.
(c) Injury determination. Once the individual study designs are
complete, the trustee(s) should then document the nature of the injury
resulting from the discharge of oil. Injury resulting from (or caused
by) a discharge of oil has been determined when the trustee(s) has
demonstrated that:
(1) With direct exposure,
(i) The natural resource was exposed;
(ii) There is a pathway between the discharge and exposed natural
resource; and
(iii) The exposure of oil, its components, or by-products has been
shown by rigorous and appropriate scientific methodology to have an
adverse effect on the natural resource in laboratory experiments or the
field; or
(2) In the absence of direct exposure,
(i) The adverse effect on or impaired/diminished use of a natural
resource has been shown by rigorous and appropriate scientific
methodology; and
(ii) The adverse effect on or impaired/diminished use of the
natural resource would not have occurred but for the fact of the
discharge or threat of a discharge.
(d) Contributing factor. Where multiple factors may have
contributed to an indivisible injury to a natural resource and/or
service, the discharge of oil may be considered a contributing factor
to the injury.
(e) Injury criteria. The method for determining injury should be
chosen based on the capability of the method to demonstrate an effect
on or impaired/diminished use of a natural resource. For any injury to
be considered such under this proposed rule, the trustee(s) must
satisfy the following acceptance criteria:
(1) For natural resources,
(i) The exposure to oil, its components, or by-products has been
demonstrated to cause an adverse effect on the natural resource in
laboratory experiments or the field; and
(ii) The measurement for a natural resource adverse effect is cost-
effective and can be obtained through the application of a
scientifically rigorous and appropriate methodology.
(2) For resource services,
(i) The use of a natural resource has been demonstrated to be
impaired/diminished; and
(ii) The measurement for impaired/diminished use is cost-effective
and can be obtained through the application of a scientifically
rigorous and appropriate methodology.
(f) Categories of injury. Categories of natural resource and/or
service injury for the CDA (as well as the EDA) that meet the
acceptance criteria specified in (e) for discharges of oil are
currently being developed.
Sec. 990.72 Comprehensive damage assessment--injury quantification.
(a) Purpose/Scope. (1) The purpose of injury quantification is to
determine the extent of effects on natural resources and/or services
resulting from the discharge as defined in the proposed rule.
(2) The trustee(s) has the option to measure the change in the
natural resource itself, or directly in the services. The trustee(s) is
encouraged to use whichever approach proves to be most appropriate for
the natural resources and/or services being considered.
(3) Should the trustee(s) be able to quantify injury to natural
resources and/or services resulting from the discharge of oil, the
trustee(s) should then proceed to the restoration component. If the
trustee(s) is unable to quantify injury, further assessment efforts
should be terminated and the results of the injury quantification
documented in the Report of Assessment.
(b) Quantification of injury. (1) For quantifying injury to natural
resources, the trustee(s) may quantify the injury to the natural
resources themselves and translate that injury to the reduction in
services provided by the resources prior to the discharge.
(2) For quantifying injury to services where there are insufficient
data to quantify a natural resource injury or where there is no
associated injured natural resource, the trustee(s) may directly
quantify the reduction in the services resulting from the discharge.
(3) If the trustee(s) chooses to quantify the natural resource
injury, the trustee(s) should determine the:
(i) Extent to which the natural resource injuries have occurred;
(ii) Extent to which the injured natural resources differ from
baseline or reference/control conditions;
(iii) Services normally provided by the injured natural resources;
and
(iv) Reduction of services resulting from the discharge of oil.
(4) To quantify the injury to services, the trustee(s) should
determine the:
(i) Extent of impaired/diminished services; and
(ii) Extent to which the level of impaired/diminished services
differs from baseline and/or reference/control conditions.
(c) Quantification methods. (1) Specific natural resources and/or
services to quantify should be selected based upon the: extent to which
a particular natural resource and/or service is affected; extent to
which a given natural resource and/or service can be used to represent
a broad range of related resources and/or services; consistency of the
quantification method with the requirements of the compensable values
determination component to be used; ability to quantify changes in a
given natural resource and/or service at reasonable cost; and
preliminary estimates of services.
(2) The trustee(s) should consider before-after (using baseline
data) or reference/control-impact study designs, using combined (at the
community/population level) and/or individual (at the organism/
biomarker effects level) injuries. Quantification methods appropriate
to a CDA are currently being developed.
(d) Recovery. The trustee(s) should estimate the time necessary for
natural recovery without restoration efforts and beyond response
activities. Recovery is defined as a return of natural resources and/or
services to baseline or comparable conditions within the limits of
natural or other (human-induced) variability.
Sec. 990.73 Comprehensive damage assessment--restoration/general.
(a) Purpose. The purposes of the restoration planning process are
to:
(1) Determine the most appropriate restoration alternatives for the
recovery of natural resources and/or services resulting from a
discharge of oil; and
(2) Estimate the costs of implementing restoration.
(b) Restoration component. The restoration component outlines the
most appropriate approach to bring about the recovery of the natural
resources and/or services to baseline or comparable conditions based
upon a consideration of available alternatives.
(c) Coordination. Where multiple trustees are involved,
coordination and responsibilities may be facilitated through a
Memorandum of Understanding (Appendix A). Participation of the RP(s) in
the restoration process is encouraged, as described in Sec. 990.17 of
this part, and should be identified in the restoration component. The
trustee(s), however, has the ultimate responsibility for all
restoration activities. A joint enforceable agreement or Memorandum of
Agreement (Appendix B) should be considered between the trustee(s) and
RP(s) where the RP(s) is involved.
(d) Emergency restoration. Consistent with Sec. 990.25, emergency
restoration prior to the development of an incident-specific
restoration plan is permitted where immediate action is necessary to
avoid irreversible loss, or to prevent or reduce continuing danger to
natural resources and/or services.
(e) Restoration costs. Costs of restoration will include direct and
indirect costs. These costs will be one component of the total damage
figure.
Sec. 990.74 Comprehensive damage assessment--restoration component
development.
(a) Requirements. In developing the restoration component for a
CDA, the trustee(s) should:
(1) Develop a restoration Scoping Statement;
(2) Develop the restoration component of the DARP; and
(3) Estimate the costs of implementing the restoration component.
(b) Restoration scoping statement. (1) The trustee(s) should
develop a restoration Scoping Statement to identify those restoration
alternatives that the trustee(s) may consider as potential actions to
remedy the effects of the discharge of oil.
(2) The Scoping Statement should:
(i) Include a summary of the natural resources and/or services of
concern, an evaluation of the circumstances of the discharge, and the
expected injured natural resources and/or services;
(ii) Identify the range of restoration alternatives available to
the trustee(s); and
(iii) Identify the opportunity to pool the recovery with other
similar recoveries in a given region for a more encompassing
restoration plan.
(3) The Scoping Statement should be included in the administrative
record.
(4) If prespill plans have been developed that encompass the
injured natural resources and/or services, the trustee(s) may decide
that a Scoping Statement is not needed.
(c) Restoration component of the DARP.
(1) The restoration component of the DARP should be based on the
Scoping Statement and injury determination/ quantification studies, and
will serve as the basis of the Post-assessment Restoration Plan.
(2) The restoration component of the DARP should:
(i) Include an analysis of the restoration alternatives considered
for each natural resource and/or service, and provide the basis for
estimating the restoration costs associated with each alternative;
(ii) Identify the preferred restoration approach for each injured
natural resource and/or service; and
(iii) Include the results of any feasibility or pilot studies.
(3) The restoration component of the DARP should analyze
opportunities for pooling recoveries from multiple cases and identify
other statutory review and consultation requirements.
(4) The restoration component of the DARP, including any
significant changes, will be made available pursuant to Sec. 990.32(c)
of this part.
(d) Estimate restoration costs. (1) Once the restoration component
is chosen, the trustee(s) must estimate the costs of planning,
developing, and implementing that component. These costs shall include
both direct and indirect costs.
(2) Direct costs are those that are identified by the trustee(s) as
charged directly to the conduct of the selected restoration
alternative. Direct costs would include trustee agency expenses for a
specific action(s).
(3) Indirect costs are costs associated with a particular action
for restoration, rehabilitation, replacement, and/or acquisition of
equivalent natural resources and/or services where there is no direct
way to calculate or attribute them to a particular action(s).
(4) Compensation for indirect costs can be included in the damage
claim in one of two ways. The trustee(s) could either identify indirect
costs or claim a certain indirect cost rate for expenses.
(5) Restoration component of the damage claim. The estimated
restoration costs make up that component of the damage claim
representing the costs to restore, replace, rehabilitate, or acquire
the equivalent of the injured natural resources and/or services. These
estimates are to be documented in the administrative record.
(e) Phased Restoration Planning. NOAA recommends that the
trustee(s) should consider undertaking restoration planning in phases.
Phased planning and implementation is proposed through an Adaptive
Management Approach (AMA). AMA involves a process whereby alternatives
can be suggested and tested (i.e., pilot projects) often in small scale
before undertaking full scale restoration. Results of initial
experiments are then evaluated to select the approach for later
projects.
Sec. 990.75 Comprehensive damage assessment--analysis and selection of
restoration alternatives.
(a) Restoration alternatives. In developing the restoration
component, the trustee(s) should consider the following alternatives.
Each alternative may be implemented through one or more options or
methods selected by the trustee(s). When mentioned, alternatives imply
associated options.
(1) The natural recovery (no-action) alternative should always be
considered. Natural recovery may be selected when:
(i) There is evidence that the natural recovery process will be
more effective than other available restoration alternatives;
(ii) The resulting natural resources and/or services are predicted
to resemble the original, within the constraints of natural or other
(i.e., human-induced) variability, in a time frame not significantly
different from that resulting from human intervention;
(iii) Other natural resources and/or services will not be adversely
affected prior to the recovery of those originally injured resources
and/or services; and
(iv) There are no threats to human health and safety from the
length of time for natural recovery.
(2) The restoration alternative, i.e., direct restoration, includes
actions undertaken to return injured natural resources and/or services
to their baseline conditions.
(3) The rehabilitation alternative includes actions to bring
resources and/or services to a state different from baseline conditions
but still beneficial to the environment and public.
(4) The replacement alternative includes actions that substitute a
natural resource and/or service that provides the same or comparable
resources and/or services as those injured.
(5) The acquisition of equivalent natural resources alternative
includes obtaining natural resources and/or services that the
trustee(s) determines are comparable to those injured. Equivalent
natural resources should be acquired to hasten recovery, and protect
and maintain the natural resources affected by the discharge.
(6) Each alternative discussed above may be considered individually
or combined in various ways, depending upon the factors outlined in
Sec. 990.75(b).
(b) Analysis of restoration alternatives. As the results of the
injury and quantification studies become available, the trustee(s)
should revise the list of restoration alternatives developed. The
trustee(s) should analyze each alternative taking into account the
feasibility, environmental effectiveness, and relative cost described
below. If an alternative is unacceptable, it will be eliminated from
further consideration. The rationale for this determination must be
documented in the administrative record.
(1) Feasibility is determined upon, but not limited to, the
following factors: availability of services, materials and equipment;
expertise; construction and operational limitations; need or capability
of future restoration; and administrative, legal, or regulatory
requirements. The trustee(s) should consider technically feasible
methods, i.e., those methods that are currently available.
(2) Once the trustee(s) determines that a restoration alternative
is feasible, the trustee(s) should then evaluate the environmental
effectiveness of the alternative. Effectiveness addresses whether an
action accomplishes the goals and objectives of restoration.
Effectiveness is dependent upon the:
(i) Extent to which the proposed alternative can return natural
resources and/or services to acceptable conditions;
(ii) Extent to which the proposed alternative causes additional
injury;
(iii) Extent to which the proposed alternative improves the rate of
recovery and success; and
(iv) Level of risk and uncertainty in the success of the proposed
alternative.
(3) Simultaneous with environmental effectiveness determination,
the trustee(s) should evaluate the expected cost of implementing the
alternative relative to other alternatives and its expected benefits.
The trustee(s) should consider, among other things:
(i) Significance of the natural resource and/or service to the
environment and public;
(ii) Extent to which the alternative benefits more than one
resource and/or service;
(iii) Cost of the alternative;
(iv) Relationship of the expected costs to the expected benefits;
and
(v) Level of risk and uncertainty in the cost-benefit analysis.
For alternatives that achieve similar benefits and meet the goals
and objectives of restoration, the most cost-effective alternative
should be chosen. In the event that value estimates are not available,
the alternative will be judged on the basis of the increase in the rate
of recovery time relative to the costs of the alternative.
(c) Selection of restoration alternatives. Based upon the analysis
of the restoration alternatives for each category of injured natural
resource and/or service, the trustee(s) should select the alternative
or some combination thereof that best meets the needs of each injured
natural resource and/or service. The trustee(s) should then develop the
restoration component of the DARP based upon this selection for each
natural resource and/or service.
(d) Feasibility (pilot) studies. (1) If restoration alternatives
for certain natural resources and/or services are limited or poorly
developed, the trustee(s) may implement small-scale feasibility or
pilot studies. The costs associated with these actions are recoverable
under this proposed rule.
(2) The trustee(s) should coordinate with the OSC prior to
proceeding with any feasibility or pilot studies during the
Preassessment Phase to ensure that such studies are not incompatible
with response activities. The RP(s) may be given the opportunity to
participate in such studies, if appropriate.
Sec. 990.76 Comprehensive damage assessment--evaluation of
restoration.
(a) Recovery and success. The trustee(s) should define restoration
goals, select appropriate criteria for monitoring goal achievement,
identify performance standards (endpoints), and measure levels of
achievement of those standards in determining recovery and success in
restoration.
(b) Monitoring. The trustee(s) should evaluate recovery through
effective monitoring until recovery is attained without human
intervention. To enable the trustee(s) to accomplish this goal:
(1) Monitoring should be sufficiently long to ensure recovery to a
stable condition;
(2) All relevant components of the affected environment should be
monitored (as it relates to the restoration alternative);
(3) The progress of recovery should be compared with natural
changes occurring in similar unaffected reference or control areas;
(4) Sampling should be designed to provide statistically
significant and defensible results; and
(5) The monitoring plan should be sufficiently flexible to permit
mid-course corrections if the need arises.
(c) Mid-course corrections. Restoration components should
incorporate provisions allowing for necessary mid-course corrections.
Mid-course corrections should be based upon, but limited to, the:
(1) Nature and extent of the injured natural resources and/or
services;
(2) Actual effectiveness of the restoration alternatives; and
(3) Results of monitoring.
Sec. 990.77 Comprehensive damage assessment--compensable values.
(a) Purpose. Section 1006(f) of OPA authorizes the trustee(s) to
recover: The cost of restoring, rehabilitating, replacing or acquiring
the equivalent of the injured or lost natural resources and/or
services; the diminution in value of the injured or lost natural
resources pending restoration; plus the reasonable cost of assessing
those damages. The purpose of this subpart is to provide guidance to
the trustee(s) for estimating the total diminution in value of
resources and/or services affected by the discharge, hereinafter
referred to as compensable values.
(b) Requirement. The trustee(s) shall determine the compensable
values resulting from the discharge of oil based upon the information
collected during the assessment/restoration process and the guidance
provided in this subpart.
(c) Services. Before estimating compensable values under this
subpart, the trustee(s) should determine the uses of the resources
identified in the Injury Quantification component.
(d) Time period of losses. Compensable values include, for each
affected resource and/or service, the diminution in value of the
resource and/or service from the onset of the discharge through the
estimated time of full recovery to baseline or comparable conditions,
as determined by the trustee(s). As identified in subpart G of this
part, to the extent possible, restoration actions will be designed to
yield full recovery of the resources and/or services; however, in some
cases, only partial recovery may occur. If the resources and/or
services will not fully recover with the implementation of the
Restoration Plan, the calculation of compensable values will include
the value of a perpetual stream of lost services.
(e) Completion of the Compensable Values Component. Upon completion
of the valuation component, the results shall be briefly described in
the Report of Assessment. Those results, combined with the restoration
costs and costs of conducting the assessment, shall comprise the
trustee(s) damage claim.
(f) Compensable values are the total diminution in value of the
injured natural resource(s) and/or services as a result of a discharge,
from the onset of the discharge until recovery to baseline or
comparable conditions is deemed complete by the trustee(s).
(g) Compensable values include:
(1) Direct use value, i.e., the value individuals derive from
direct use of a natural resource, including consumptive and
nonconsumptive uses, and
(2) Passive use value, i.e., the value individuals place on natural
resources that is not linked to direct use of a natural resource by the
individual, including the value of knowing the natural resource is
available for use of family, friends, or the general public; the value
derived from protecting the natural resource for its own sake; and the
value of knowing that future generations will be able to use the
natural resource.
(h) Compensable values include, but are not limited to:
(1) The value of losses to all public uses of natural resources as
measured by changes in:
(i) Monetized measures in utility, or consumer surplus,
(ii) Fees or other payments collectable by the government or an
Indian tribe for use of the natural resource by a private party, and
(iii) Any economic rent accruing to a private party because the
government or Indian tribe does not charge a fee or price for the use
of the resource, provided such economic rent is not recovered under a
private cause of action; and
(2) In instances where the natural resource trustee(s) is the
majority operator or controller of a for-profit or not-for-profit
enterprise, and the injury to the natural resource results in a
reduction of net income to such an enterprise, that portion of the lost
net income due the trustee(s) from this enterprise resulting directly
or indirectly from the injury to the natural resource.
(i) Compensable values do not include:
(1) Taxes forgone, because these are transfer payments from
individuals to the government;
(2) Wages and other income lost by private individuals, except for
that portion of income that represents uncollected economic rent,
because these values do not accrue to the trustee(s) and may be the
subject of lawsuits brought by the individuals suffering the loss; or
(3) Any speculative losses.
Sec. 990.78 Comprehensive damage assessment--compensable values,
measurement techniques.
(a) General. (1) The methodologies listed in this subpart, or other
appropriate methodologies selected by the trustee(s), shall be used to
estimate compensable values. The trustee(s) should select only those
methods that can provide valid and reliable resource values and that
are appropriate for valuing the injuries associated with a particular
discharge.
(2) Nothing in this part precludes the use of different
methodologies to produce separate damage estimates for different
resource services, so long as there is no double counting.
(b) Site-specific valuation techniques. (1) Travel cost method. The
travel cost method may be used to estimate the value of recreational
services provided by a specific site based on information on the number
and costs of recreational visits to that site. The value of
recreational losses resulting from injury to an area (which may include
multiple sites) is measured as the difference between the values of
recreational services provided by the area with and without the
discharge of oil.
(2) Factor income method. If a lost or injured resource and/or
service is an input to a production process, the factor income
methodology may be used. This methodology may be used to estimate the
change in economic rent attributable to the injured natural resource as
a result of the discharge. When the price of the good being produced is
not affected by the injuries, the change in economic rent is simply the
sum of the changes in factor costs for each affected input.
(3) Hedonic price model. The hedonic price model relates the price
of a marketed commodity, such as property, to its attributes, such as
the quality of the surrounding environment or access to environmental
amenities. Where nonmarket services provided by public trust resources,
such as local water or air quality, function as attributes of private
property or other market goods, the hedonic price model may be used to
determine the value of the change in services for property owners.
(4) Market models of supply and demand. (i) For natural resources
that are traded in markets, the trustee(s) may estimate models of
market supply and demand for the natural resource. The measure of
damages to consumers of the marketed natural resource or of its
marketed services is the difference between the total consumer surplus
for the marketed natural resource/service with and without injury.
(ii) When the supply of the natural resource is fixed (or quasi-
fixed), then the observed or appraised change in market price may be
used as a proxy for damages per unit of affected natural resource or of
affected service. The measure of damages to consumers of the marketed
services is the sum of difference between the without- and with-injury
market or appraisal prices for each affected unit. When the appraisal
method is employed, damages should be measured, to the extent possible,
in accordance with the applicable sections of the ``Uniform Appraisal
Standards for Federal Land Acquisition,'' Uniform Appraisal Standards,
Interagency Land Acquisition Conference, Washington, DC, 1973.
(5) Contingent valuation method. The trustee(s) may use the
contingent valuation method to determine individuals' valuation of
natural resources or of the services provided by natural resources in
order to estimate compensable values. When using contingent valuation
pursuant to this part, the trustee(s) shall adhere to the following:
(i) Survey instrument design and development--(A) Willingness to
pay for Prevention or Restoration.
(1) The survey instrument shall elicit from respondents their
willingness-to-pay (WTP) either to prevent described injuries to
natural resources or to restore injured resources as described to their
baseline or comparable condition.
(2) The trustee(s) shall document the rationale for selecting a
prevention program or restoration program as the commodity to be
valued.
(B) Commodity definition. (1) During development of the survey, the
trustee(s) shall determine whether respondents understood and found
credible the description of the injuries (including whether they are
permanent or interim losses) and the program (including the timing of
the process) for preventing injuries or restoring the natural resource.
(2) Prior to the value elicitation, the trustee(s) shall identify
the natural resource context of the injured resources, if related
resources exist, including commodities that might serve as substitutes.
(C) Budget constraints. Prior to the value elicitation, respondents
shall be reminded of their budget constraints and their alternative
expenditure possibilities. Respondents shall be reminded that their WTP
for the environmental program in question would reduce their
expenditures on other goods. This reminder should be more than
perfunctory but less than overwhelming. The goal is to induce
respondents to keep in mind other likely expenditures, including those
on other environmental goods, when evaluating the main scenario. After
the value elicitation, respondents shall be reminded again of their
alternative expenditure possibilities. Respondents shall be given an
opportunity to reconsider and change their votes (bid) after this
second reminder of alternative expenditure possibilities.
(D) Comparability with real transactions. (1) The survey instrument
shall use a credible choice mechanism and payment vehicle.
(2) The trustee(s) shall select a choice mechanism that is
incentive compatible and shall document the rationale for the selected
choice mechanism.
(3) The trustee(s) shall ask follow-up questions to determine
whether the respondents accepted the choice mechanism and payment
vehicle as credible.
(4) The survey instrument or analysis method shall provide a
mechanism for calibrating hypothetical WTP to actual WTP. The
trustee(s) shall document the rationale for the selected calibration
mechanism. If the survey instrument or analysis method fails to provide
such a mechanism or the trustee(s) fails to document the rationale for
the selected calibration mechanism, actual WTP shall be presumed to be
one-half of stated WTP.
(E) Pretesting. (1) Survey development shall include adequate field
testing to ensure that the above design criteria are met.
(ii) Survey administration--(A) Sampling procedures. (1) The
trustee(s) shall determine the relevant population(s) to be sampled and
document the rationale for that determination.
(2) The trustee(s) shall draw a probability sample(s) from the
target population for the administration of the final survey. Less
rigorous sampling is suitable for pretesting and pilot surveys so long
as the heterogeneity of the target population is considered.
(3) The sample size(s) shall be sufficient to draw statistically
significant population inferences and to estimate WTP valuation
functions or to test relevant statistical hypotheses.
(4) The trustee(s) shall minimize nonresponse bias to the extent
practicable by striving for as high a response rate in the final survey
as possible, consistent with the requirements of reasonable cost. In no
case shall the response rate be less than seventy percent.
(5) The trustee(s) shall document the rationale for the selected
response rate.
(B) Mode of administration. (1) The trustee(s) shall document the
rationale for the selected mode of survey administration.
(2) If interviewers are used, the survey administration shall be
conducted by trained interviewers who are supervised by experienced
interviewer field managers.
(3) Regardless of the mode of administration, the trustee(s) shall
use an experienced survey research organization to administer the
survey.
(C) Confidentiality. The trustee(s) should ensure respondent
confidentiality.
(iii) Nature of results--(A) Scope test. Controlling for
attitudinal, demographic, perceptual, and other differences across
respondents, the trustee(s) shall demonstrate statistically that the
aggregate WTP across all respondents for the prevention or restoration
program increases (decreases) as the scope of the environmental insult
is expanded (contracted). The scope of the environmental insult is
characterized by the severity of the natural resource injuries and the
level of effectiveness and timing of the restoration or prevention
program. The demonstration shall be conducted through the use of split
samples.
(B) Number of scenarios. The trustee(s) shall administer to split
samples different survey instruments containing three variations of the
scope of the environmental insult that respondents perceive as
different unless the trustee(s) can provide a reasonable showing that
the three-scenario test is infeasible due to considerations of cost or
lack of plausibility of scenarios. Where three scenarios are feasible,
the statistical test shall involve pairwise comparisons. In either
case, the scenarios may vary along any of the margins of intensity,
geography, and duration of damage and, for prevention scenarios, the
probability of an event occurring. The trustee(s) shall document the
rationale for the selected variations of the scope of the environmental
insult. In determining the descriptions to be used with the split
samples, the trustee(s) shall use realistic injury scenarios and
prevention or restoration programs that the respondents accept as
credible.
(C) Maximum amount of difference between scenarios. The trustee(s)
shall develop scenarios for the total value test. Prior to the
performance of the test, the trustee(s) shall demonstrate that not more
than ninety-five percent of respondents in a pre-test or in focus
groups indicate that there are meaningful value differences between the
scenarios to be tested in any pairwise comparison. The demonstration
shall be based on a minimum of sixty valid responses. The trustee(s)
shall exclude from this demonstration any individuals who indicate in
screening questions that they are not willing to pay anything for any
size environmental cleanup or who would be willing to pay
unrealistically large and invariant amounts for any size environmental
cleanup.
(iv) Reporting. The trustee(s) shall ensure that reports of
contingent valuation studies discuss the relevant factors identified in
the standards pertaining to survey instrument design and development,
survey administration, and nature of results in this section. A copy of
the survey instrument shall be included.
(c) Alternative techniques. (1) Benefits transfer approach.
Benefits (or valuation) transfer involves the application of existing
valuation point estimates or valuation function estimates and data that
were developed in one context to value a similar resource and/or
service affected by the discharge of concern. When using benefits
transfer, the trustee(s) should consider:
(i) The comparability of the users and of the resource and/or
services being valued in the initial study(ies) and the changes
resulting from the discharge of concern;
(ii) The comparability of the change in quality or quantity of
resources and/or services in the initial study(ies) and the ones
affected by the discharge of concern; and
(iii) The quality of the study(ies) being used for the transfer(s).
(2) Habitat or species replacement cost method. The habitat or
species replacement cost method involves estimating damages in terms of
the cost of obtaining from alternative sources the equivalent of the
quality and quantity of services diminished by the injury from the
onset of the discharge through full recovery. As appropriate, damages
may be calculated as the cost of replacing entire habitats that support
multiple species and provide a variety of resource services. In
applying this method, the trustee(s) should:
(i) Quantify a total discounted measure of the value of lost
services over the full duration of the injury, taking into account the
extent to which the resource and/or service will recover over time;
(ii) Determine the total discounted measure of the value of
services provided by the restoration or replacement project over the
full life of the relevant species or habitat;
(iii) Calculate the appropriate scale of the restoration or
replacement project, such that the total discounted value of services
provided is equivalent to the total discounted value of interim lost
services; and
(iv) Estimate the cost of implementing the restoration or
replacement project.
Sec. 990.79 Comprehensive damage assessment--compensable values,
implementation guidance.
(a) Committed use. Only losses in committed uses of injured
natural resources and/or services shall be recoverable. Damages for
losses of purely speculative uses are not recoverable. For the purposes
of this subpart, a committed use is:
(1) Any direct or passive use of the injured natural resource and/
or service available to the public, but for the discharge; or
(2) Any documented, planned future use.
(b) Willingness to accept and willingness to pay. For purposes of
this part, the trustee(s) may use willingness to accept, willingness to
pay, or Marshallian consumer surplus (the value of which is between
willingness to accept and willingness to pay) as the criterion to
measure damages. However, only willingness to pay shall be elicited in
contingent valuation survey instruments.
(c) Substitutability. When calculating compensable values, the
trustee(s) should take into account, to the extent practicable, the
ability to substitute alternative resources and/or services for the
injured resources.
(d) Uncertainty. Uncertainty regarding the predicted consequences
of restoration options and predicted supply and demand of natural
resources and/or services should be addressed in the economic analysis
of restoration alternatives and determination of compensable values and
documented in the administrative record.
(e) Discounting. (1) The trustees should discount the three
components of the damage claim: Compensable values; future restoration
costs; and assessment and restoration costs already incurred. NOAA
recommends that the trustee(s) use the U.S. Treasury borrowing rate on
marketable securities of comparable maturity to the period of analysis
for discounting the value of each of the components. The reference date
for the discounting calculation is the date at which the claim is
presented. Section 9.14 of the proposed rule, as required by section
1005(b) of OPA, provides for pre-judgment interest and post-judgment
interest to be paid at a commercial paper rate, starting from 30
calendar days from the date a claim is presented until the date the
claim is paid.
(2) Trustees are referred to Appendix C of OMB Circular A-94 for
information about nominal and real U.S. Treasury rates of various
maturities and for further guidance in calculation procedures. Copies
of the Appendix, which is regularly updated, and of the Circular are
available from the OMB Publications Office (202-395-7332).
(f) Economic definitions. (1) ``Commodity'' as used in contingent
valuation, refers to the item respondents are asked to value. In damage
assessment, the item to be valued will generally be a plan or program
to protect against future oil spills or a plan or program to restore an
already injured set of resources.
(2) ``Payment vehicle'' is the method by which contingent valuation
survey respondents will pay for the commodity being valued. Common
payment vehicles used in contingent valuation include increases in
local, state or federal taxes, or increases in process of consumer
goods or services.
(3) ``Choice mechanism'' is the institutional format in which
contingent valuation survey respondents are asked to express their
value for the commodity offered in the survey. A frequently used choice
mechanism is the voting format (referendum) where respondents express
their value for the commodity offered by choosing to vote for or
against a ballot proposal that would provide the commodity by raising
respondents' taxes.
(4) ``Probability sampling'' refers to the use of sampling
techniques that assign each sampling unit in the target population a
known non-zero probability of being included in the sample. Sampling
units for survey research are usually individuals or households.
Subpart H--Post Assessment Phase
Sec. 990.80 Post-assessment phase--report of assessment.
(a) Requirement. At the conclusion of any of the assessment
procedures provided in this part or upon reaching settlement with the
RP(s) under Sec. 990.14(f) of this part, the trustee(s) shall prepare a
Report of Assessment.
(b) Contents. The Report of Assessment shall contain:
(1) The selected restoration approach;
(2) The estimated costs of implementing that approach; and
(3) An index to the administrative record.
Sec. 990.81 Post-assessment phase--demand.
(a) Requirement. Where the trustee(s) and RP(s) have not reached
settlement by the conclusion of the Assessment Phase, the trustee(s)
shall present to the RP(s), jointly or individually, a demand in
writing for a sum certain representing the damages as determined by the
trustee(s). The demand should be delivered in such a manner as will
establish the date of receipt.
(b) Contents. The demand shall include the following items:
(1) Identification of the discharge of oil from which the claim
arises;
(2) The natural resource trustee(s) asserting the claim;
(3) A brief description of the natural resources and/or services
for which the claim is being brought;
(4) The Report of Assessment, as an attachment; and
(5) The amount of damages being sought.
(c) Damages. (1) The damages presented in the demand include:
(i) Costs of restoration, replacement, rehabilitation, or
acquisition of equivalent natural resources and/or services;
(ii) Compensable values; and
(iii) Reasonable costs of the assessment.
(2) The damage figure should be adjusted, if necessary, by the
guidance in Sec. 990.82(e) of this part.
(d) Review of damage figure. The total damage figure may be divided
into two components: costs (both assessment costs and estimated costs
of restoration) and compensable values. Judicial review of that portion
of the demand representing costs shall be conducted on the
administrative record. Judicial review of that portion of the demand
representing compensable values shall be conducted with the trustee(s)
receiving the benefit of the rebuttable presumption.
Sec. 990.82 Post-assessment phase--accounts.
(a) Joint account. For joint recoveries involving both federal
trustees and state or Indian tribe trustees, trustees may establish an
interest-bearing joint trustee account under the registry of the
applicable federal court. The account should be jointly managed by all
the trustees through a mutually agreed upon trustee committee or
council. Such funds shall be used only as specified in Sec. 990.83 of
this part.
(b) Separate accounts. The trustees have the option of dividing the
recoveries and depositing their respective shares in separate interest-
bearing accounts. Such funds should be retained by each trustee in a
revolving trust account, without further appropriation, for use only as
specified in Sec. 990.83 of this part.
(c) Other accounts. The trustees may establish escrow accounts or
any other investment account(s) unless specifically prohibited by law.
Such funds shall be used only as specified in Sec. 990.83 of this part.
(d) Records. Regardless of the type of account used, the trustee(s)
must maintain appropriate accounting and reporting methods to document
the use of those sums, including independent auditing.
(e) Adjustments. (1) If, for any reason, a recovery cannot be
placed in an interest-bearing account, prior to the presentation of a
demand for the damage amount, the calculation of the expected present
value of the damage amount should be adjusted to correct for the
anticipated effects of inflation over the time estimated to complete
the restoration, rehabilitation, replacement, or acquisition of the
equivalent of the natural resources and/or services.
(2) In order to make the adjustment in paragraph (e)(1) of this
section, the trustee(s) should adjust the damage amount by the rate
payable on notes or bonds issued by the United States Treasury with a
maturity date that approximates the length of time estimated to
complete the restoration, rehabilitation, replacement, or acquisition
of the equivalent.
(3) The adjustment outlined in this paragraph applies only to those
sums to be expended through an Incident-Specific Restoration Plan
described in Sec. 990.84 of this part.
Sec. 990.83 Post-assessment phase--use of sums recovered.
(a) Reimbursable costs. Prior to deposit of the sums recovered, as
provided in Sec. 990.82 of this part, the trustee(s) may immediately
request receipt of those sums recovered that represent the:
(1) Costs of the assessment already incurred and costs necessary to
complete the damage assessment;
(2) Costs already incurred for emergency restoration as described
in Sec. 990.25;
(3) Costs necessary to develop the final restoration plan; and
(4) Costs necessary to implement a restoration plan or individual
project that is part of that restoration plan.
(b) Damages representing compensation. Damages recovered as
compensation for injuries to natural resources and/or services, as
specified in Sec. 990.81 of this part, shall be paid out of the account
established under Sec. 990.82 of this part only for those actions
described in a restoration plan developed pursuant to the guidance in
Sec. 990.84 of this part.
Sec. 990.84 Post-assessment phase--final restoration plan.
(a) Incident-specific Restoration Plan. The Final Restoration Plan
is that plan implemented after damages have been received. The Final
Restoration Plan can be either one of two types: Incident-specific or
regional.
(1) Upon determination of the amount of the award of a natural
resource damage claim, as authorized by section 1006(a)(2) of OPA, the
trustee(s) shall prepare a Final Restoration Plan as provided in
section 1006(c) of OPA.
(2) This post-assessment restoration plan should be based upon the
restoration component developed pursuant to subpart G of this part.
(3) If there are significant modifications between the restoration
component developed under subpart G of this part, which was made
available to the public, and the Final Restoration Plan, the Final
Restoration Plan shall be made available for a 30 calendar day public
review and comment period.
(4) Before implementing the significantly modified plan discussed
in paragraph (a)(3) of this section, the plan and a response to any
public comments received, should be made available to the public.
(5) This Final Restoration Plan shall be implemented using the sums
in one or more of the accounts described in Sec. 990.82 of this
subpart.
(b) Regional Restoration Plan. (1) Where the trustee(s) has
developed a Regional Restoration Plan, as described in Sec. 990.16 of
this part, through a public review and comment process, for a specific
area, e.g., bay or estuary, monies placed in an account established
under Sec. 990.82 of this part may be pooled with other recoveries to
implement that Regional Restoration Plan, in whole or in part.
(2) Where a Regional Restoration Plan has not been or is not in the
process of being developed, an incident-specific plan must be developed
for use of the damages recovered.
(3) To qualify as a Regional Restoration Plan for use of sums
recovered pursuant to this part, the plan must:
(i) Be developed through a process consistent with the prespill
planning process described in Sec. 990.16 of this part, including
public review and comment; and
(ii) Address the same or similar resource injuries as those
identified in the assessment.
Appendix A to Part 990--Draft Memorandum of Understanding (MOU)
I. Introduction
This Memorandum of Understanding (MOU) by and between the state
of ________ (state), the National Oceanic and Atmospheric
Administration of the United States Department of Commerce (NOAA),
the United States Department of the Interior (DOI) and the United
States Department of Agriculture (USDA) (collectively referred to as
the Trustees) is entered into to ensure the coordination and
cooperation of the trustees in the initiation of assessment and
assessment of damages for injuries to natural resources and/or
services resulting from ________, and the application of any natural
resource damages recovered toward the restoration, rehabilitation,
replacement and/or acquisition of equivalent natural resources.
[Note: Obviously, in any given incident there may be more or
fewer trustees than those indicated above.]
II. Parties
The following officials, or their designees, are parties to this
MOU and act on behalf of the public as Trustees for natural
resources under this MOU:
1. The ________ of the state of ________,
2. The Under Secretary for Oceans and Atmosphere, Administrator
of the National Oceanic and Atmospheric Administration, acting on
behalf of the Secretary of Commerce,
3. The Secretary of the Department of the Interior,
4. The Secretary of the Department of Agriculture,
5. [The Secretary of Department of Defense, Department of
Energy, and/or the designated trustee of a Tribe and any foreign
[international] trustee.]
III. Location
This MOU is intended to address natural resources injured
[damaged] * * *
[Identify as precisely as possible geographic location and
incident(s) involved]
* * * (the Incident).
IV. Purpose
The trustees recognize the importance of integrating and
coordinating the assessment of natural resource damages for injuries
to natural resources affected by the Incident, seeking compensation
for those injuries to natural resources and/or services and
restoration of those affected resources and/or services. The purpose
of this MOU is to provide a framework for such coordination and
cooperation between the trustees, and for the implementation of the
activities of the trustees in furtherance of their natural resource
trustee responsibilities. The trustees' activities will primarily
involve assessing damages for injuries to natural resources, seeking
compensation for those injuries to natural resources and/or services
and restoring the injured natural resources and/or services affected
by the incident. Nothing in this MOU is to imply that any signatory
trustee is in any way abrogating or ceding any responsibility or
authority inherent in its control or trusteeship over natural
resources.
V. Authority
The trustees enter into this MOU in accordance with the natural
resource trustee authorities provided for each trustee by the
Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., the Oil
Pollution Act of 1990, Public Law 101-380, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended,
42 U.S.C. 9601 et seq., and, if utilized, the Natural Resource
Damage Assessment Regulations, 43 CFR part 11, or the OPA
regulations, when promulgated.
VI. Organization
The trustees recognize the importance of coordinating their
efforts in order to effectively and efficiently meet their
respective natural resource trustee responsibilities under
applicable federal and state law. Accordingly, there is hereby
created a Trustee Council (Council) to implement the MOU to which
each trustee will designate a representative and an alternate. The
Council may create subcommittees when they are deemed necessary to
effect the purposes of this MOU. A representative designated by
unanimous consent of the Trustee Council members will serve as Lead
Administrative Trustee for administrative purposes. This
representative shall fully coordinate his activities with and act
under the direction of the Council. The Trustee Council will also
seek advisory participation from the United States Department of
Justice, the United States Department of Transportation (Coast
Guard), the State Attorney General or other legal advisor and the
United States Environmental Protection Agency, when appropriate.
VII. Duties and Responsibilities
On behalf of the trustees, the Trustee Council shall coordinate
and authorize all trustee activities and matters under this MOU in
accordance with the decisionmaking requirements contained in Section
VIII. The Trustee Council may take whatever actions the Council, in
its discretion, determines are necessary to fulfill the trust
responsibilities of each trustee under and to effectuate the
purposes of applicable federal and state law. It is expected that
the Trustee Council, in accordance with applicable laws and
policies, may take the following actions, among others, to address
the trustees' natural resource trustee responsibilities:
A. Conduct scientific and technical studies, sampling and other
matters related to the assessment of natural resource damages for
injury to natural resources with respect to trust resources which
may be lost, injured or destroyed.
B. Seek compensation from responsible parties for the damages
assessed by the trustees and for the costs of planning and
implementing the assessment.
C. Acting in concert with its attorneys, participate in
negotiations with responsible parties.
D. In accordance with applicable law, supervise, manage and
obligate any money paid to the trustees by or on behalf of
responsible parties for the purpose of assessing, restoring,
replacing, rehabilitating, and/or acquiring the equivalent of the
affected natural resources.
E. Oversee the development and implementation of a plan for the
restoration, replacement, rehabilitation, and/or acquisition of
equivalent resources for those trust resources, and/or services,
that may be injured, destroyed or lost.
F. In accordance with applicable law, make all necessary
decisions for the management and administration of funds pursuant to
Section IX of this MOU.
G. In accordance with applicable law, arrange for one or more
contracts with professional consultants, technical or otherwise,
that the Trustee Council determines are necessary and best qualified
to provide services to the Council.
H. Identify a contact for coordination with the U.S. Coast Guard
regarding access to the Oil Spill Liability Trust Fund.
The duties of the Lead Administrative Trustee shall include, but
are not limited to: coordination and monitoring of the progress of
the natural resource damage assessment process; scheduling of
meetings of the Trustee Council, and preparation of agendas for
those meetings; acting as a central contact point for the Trustee
Council; establishment and maintenance of the administrative record
and other records and relevant documents; and such other duties as
directed by the Trustee Council. The Lead Administrative Trustee
will be responsible for informing the other trustees of all
pertinent developments on a timely basis.
VIII. Decisionmaking
The trustees agree that all decisions implementing this MOU
shall require unanimous approval. In the event that unanimous
agreement cannot be reached among the members of the Trustee
Council, the matter in dispute will be elevated to the Trustees for
resolution. If necessary, the trustees may establish further
mechanisms by which disputes may be resolved. The trustees further
agree that decisionmaking deliberations will focus upon the
trustees' mutual purpose of assessing, restoring, rehabilitating,
replacing and/or acquiring the equivalent of the affected natural
resources, rather than upon control or respective trusteeship over
those resources.
IX. Funds
The trustees agree to cooperate in good faith to attempt to
establish, to the extent consistent with applicable law, a joint
trust account for purposes of receiving, depositing, holding,
disbursing, managing and expending all natural resource damage
recoveries obtained or received by the trustees relating to the
natural resource injuries arising out of the Incident and interest
earned thereon. This joint trust account will be established under
the registry of the applicable Federal district court. Such
recovered damages shall be used for restoration activities conducted
under this MOU to address those injuries to natural resources and/or
services. Any recoveries for injury to natural resources obtained or
received by or on behalf of any trustee shall be deposited in this
joint trust account.
The Trustee Council, in accordance with its decisionmaking
process in section VIII of this MOU, shall establish standards and
procedures governing the joint use of all natural resource damages
received by the Trustees for the purposes of restoring, replacing,
rehabilitating and/or acquiring the equivalent of natural resources
injured as a result of the Incident and the reduced or lost services
provided by such resources pursuant to the final Restoration Plan.
The trustees further agree that the following damage assessment
costs shall be advanced or reimbursed to each trustee out of any
damage assessment cost recoveries or payments thereon, including
funds received from the Oil Spill Liability Trust Fund: reasonable
unreimbursed costs jointly agreed upon for the planning, conduct,
evaluation and coordination of all natural resource damage
assessment activities pursued by the Trustee Council with respect to
injuries incurred resulting from the Incident.
X. Confidentiality
The trustees agree that it is in the public interest that all
scientific data arising out of their review of the injury to natural
resources as a result of the Incident be made public. Therefore,
such data shall be made public as soon as publication will not
prejudice the on-going assessment. Public sharing of scientific data
will be the general policy of the trustees.
However, all parties to this MOU recognize that all written or
oral communications related to the assessment and recovery of
damages for injury to natural resources and/or services may be
undertaken in anticipation of litigation. Accordingly, all oral and
written communications and work product will be treated as
privileged attorney-client communications, attorney work product or
protected by other applicable privilege (or a combination thereof),
as appropriate, and will be protected from disclosure to the maximum
extent possible under applicable federal or state law. They further
agree that when a request for production of such a record is
received pursuant to any applicable federal or state law, the
request will be forwarded for response to the trustee or trustees to
which the privilege applies or whose representatives originally
generated or contributed the record requested. Nothing contained
herein shall be construed as prohibiting or restraining the trustees
or the Trustee Council from agreeing to release any record.
XI. Reservation of Rights
Except for the confidentiality agreement contained in Section X,
all parties understand that this document is not intended to create
any further legal rights or obligations between the parties, the
trustees or any other persons not a party to this MOU.
XII. Modification of Agreement
It is acknowledged that additional agreements may be executed by
the trustees with regard to natural resource damage claims that
arise and to planning for the restoration, replacement,
rehabilitation, and/or acquisition of equivalent natural resources
that may be injured, destroyed or lost. Therefore, modification of
this MOU must be in writing and upon approval of all Trustees
currently parties to the MOU.
XIII. Termination
This MOU shall be in effect from the date of execution until
termination by agreement of the trustees. At any time the trustees
determine that the purposes underlying this MOU have been addressed,
the MOU will terminate upon such a finding. In the event any trustee
withdraws from the MOU, such withdrawal must be in writing at least
thirty calendar days in advance of the withdrawal. In the event of
such withdrawal, this MOU remains in full force and effect for the
remaining parties.
In the event of the withdrawal of any trustee, or at the
termination of this MOU, there shall be a full and complete
accounting of all funds received, deposited, held, disbursed,
managed, expended pursuant to Section IX of this MOU, or otherwise
controlled in any joint account by the trustees as a result of the
incident.
XIV. Limitation
Nothing in this MOU shall be construed as obligating the United
States, a state or any other public agency, their officers, agents
or employees, to expend any funds in excess of appropriations
authorized by law.
XV. Third Party Challenges or Appeals
The rights and responsibilities contained in this MOU are
subject to the availability of funding and are intended to be
guidance for the respective trustees. They may not be the basis of
any third party challenges or appeals.
XVI. Execution: Effective Date
This MOU may be executed in counterparts. A copy with all
original executed signature pages affixed shall constitute the
original MOU. The date of execution shall be the date of the final
trustee's signature.
Appendix B to Part 990--Memorandum of Agreement (MOA)
This memorandum of agreement (MOA) is between the [trustee(s)],
referred to as ________, and [responsible party(ies)], referred to
as ________. The [trustee(s)] and [RP(s)] are hereafter collectively
referred to as ``the parties.'' This MOA shall become effective as
of the last date of its execution by the authorized representatives
of the parties.
The parties, in order to pursue a [negotiated settlement of
possible claims or phased joint assessment (PJA)] arising from
[description of discharge], have executed this MOA, which addresses
the nature and scope of [settlement negotiations in this case or the
PJA].
The parties agree that, by entering into this MOA, neither party
is making any admission of fact or law. This MOA shall not be
admissible as evidence of proof of liability or nonliability or the
validity or nonvalidity of any claim or defense in the above-
referenced or other discharge. This MOA shall not prejudice the
position of either party in the above-referenced or other discharge,
nor shall it be used for any purpose other than the attempted
[settlement of this case or PJA].
Recitals
Whereas, the parties to this MOA seek to resolve without further
litigation all issues in the [case or PJA];
Whereas, the parties are entering into the negotiations in good
faith and agree to consider and discuss all issues that either party
deems necessary or appropriate to a final resolution;
Whereas, the parties intend to negotiate in good faith through
their expressly designated representatives and do not intend to
undermine negotiations through other means or methods;
Now, therefore, based upon the above premises and the mutual
covenants and considerations set forth below, the parties agree as
follows:
PJA Process and Schedule
The [settlement or PJA] process shall take the (five)-phase
approach, described below. The parties will use their best efforts
to adhere to the schedule set forth in Attachment A, hereto. This
(five)-phase approach and schedule may be modified upon written
agreement of the parties.
Phase I--Agreeing to the Settlement Process
During Phase I the parties discussed and formulated a process to
engage in substantive settlement negotiations. The agreements of the
parties as a result of those discussions are contained in this MOA.
If this MOA is negotiated as part of a claim, this MOA will be
submitted to the Court in the litigation in conjunction with a joint
petition of the parties for a stay of the litigation. Phase II of
the settlement process shall proceed upon the Court's approval of
such joint petition.
[The following section outlines the maximum extent of agreement
between the possible parties. This section is designed to be modular
in nature, i.e., one may pick appropriate phases or components to
revise and include in a particular MOA.]
Phase II--Preassessment Phase
During Phase II the parties will discuss the technical,
scientific, and other issues pertaining to preassessment,
particularly as to the type of assessment procedure to conduct for
[the expected area of impacts]. The discussions will proceed on the
basis of natural resource units. The natural resource units were
chosen because they logically lend themselves to segregated
discussion. The natural resource units will be:
[Natural resource units may consist of resource categories,
e.g., surface waters, geologic units; aquatic resources, including
surface water, sediments, fish, etc.; terrestrial resources; acres
of particular wetland or other habitat type; certain populations of
fish and/or wildlife species; recreational areas.]
The substantive discussions on a particular natural resource
unit will proceed according to the Settlement Process Schedule
provided in Attachment A as follows:
A. The basis for the [trustee's(s')] trusteeship of the
resources and the precise geographical location and extent of the
same; and
B. The [trustee's(s')] initial recommendation of the type of
assessment procedure to implement for this incident.
Phase III--Assessment/Restoration Phase
During Phase III, the parties will discuss the nature and extent
of the injuries, along with the appropriate restoration approach,
the cost of implementing that approach, and compensation for
resources or services that are not restored. Phase III may be broken
down into as many as three components as described below:
A. Injury determination/quantification component:
--Baseline/reference/control conditions
--Change from above conditions
--Quantification of injured natural resources and/or services
B. Restoration Component:
--Development of an approach
--Estimating rate of recovery
--Estimating interim lost uses
C. Economic Valuation Component:
--Estimate lost compensable values
Phase IV--Post-Assessment Phase
During Phase IV, the parties will discuss the actions to be
carried out in the Post-Assessment Phase, including the components
listed below:
A. Development of Final Restoration Plan.
B. Compensatory Restoration.
C. Accounts and Disbursements.
D. Monitoring.
Phase V--Final Settlement Negotiations
During Phase V, the parties will discuss and attempt to resolve
the outstanding issues necessary for a final settlement. If not
previously resolved, these will include: (1) The amount of any
natural resource damages and assessment costs to be paid to the
[trustee(s)] by [RP(s)]; and (2) the contents and details of the
final settlement agreement and consent decree.
By the conclusion of Phase V, the parties should have agreed to
a settlement agreement and consent decree resolving all issues that
will be made available for public review and comment and submitted
for court approval. The parties will submit to each other written
statements of their positions as necessary during the Phase V
discussions. Phase V should conclude no later than ________.
Joint Data
The [trustee(s)] and the [RP(s)] stipulate that each party to
the agreement shall be barred from introducing new or different data
(information, analysis, etc.) collected outside the joint process to
challenge the jointly collected data in either a judicial or
administrative proceeding under OPA.
Public Review
During the settlement process, appropriate public review shall
be provided as follows:
1. Following the complete execution of this MOA, the MOA shall
be submitted to the Court and released to the public. Any subsequent
modifications of this MOA shall also be submitted to the Court and
released to the public.
2. During Phases II, III, IV, and V of the [settlement or
assessment] process, the [trustee(s)] at its discretion may make
available for public review copies of any information that it has
submitted to the [RP(s)], provided that such information does not
contain information submitted by the [RP(s)] to the [trustee(s)] in
the [settlement or assessment] process. Ten (10) days prior to any
submission of such information, the [trustee(s)] shall deliver to
the [RP(s)] a general written description of such information that
is sufficient to assure the [RP(s)] that such information will not
contain any confidential information submitted by the [RP(s)] to the
[trustee(s)] in the [settlement or assessment] process.
3. During Phases II, III, IV, and V, of the [settlement or
assessment] process, the [trustee(s)], following the express written
agreement of the [RP(s)], may make available for public review any
information that the [RP(s)] has submitted to the [trustee(s)].
4. During Phases II, III, IV, and V, of the [settlement or
assessment] process, the [trustee(s)] shall make available for
public review and comment any final agreements reduced to writing by
the parties.
5. The [trustee(s)] negotiators, at their discretion, may meet
with the general public or with individual members of the public
regarding the status of the settlement process, provided that the
[trustee(s)] does not discuss at such meetings information submitted
by the [RP(s)] to the [trustee(s)] in the settlement process. The
[RP(s)] may have a representative present at the meetings that are
open to the general public.
6. At the completion of each phase, the [trustee(s)] shall enter
all documentation developed for that phase into the Administrative
Record of the [settlement or assessment] process to be made
available to the public during the review of the settlement
agreement or consent decree.
7. Following the complete execution of any final settlement
agreement(s) and consent decree(s) that will be submitted for court
approval, the [trustee(s)] shall make such agreement(s) and
decree(s) available for public review and comment for a period of
____ days. The [trustee(s)] may hold a public meeting to receive
comments during the comment period. The parties agree that any such
consent decree(s) shall not be approved as an order of the court
until the comment period expires and all comments received have been
duly considered by the parties and jointly submitted to the court
together with responses and/or mutually agreed amendments to the
consent decree(s).
Stay of Litigation
[For Litigation-Driven Assessments]
Upon complete execution of this MOA, the parties shall file the
MOA with a joint petition to the Court to stay the litigation in its
entirety, including all discovery and motions practice, except as
hereinafter provided dealing with matters or issues covered by this
MOA. It is agreed that the parties will use their best efforts
(provided that such efforts are reciprocal as between the parties)
to respond to all Rule 34 F.R. Civ. P. requests for production of
documents which were served prior to [some date prior to this MOA] .
It is agreed that should any disputes over production of documents
arise, no motions to compel shall be filed during the pendency of
this stay and each party shall reserve its right to file any such
motion after the stay is lifted.
In addition, either party at any time may request, in writing,
that the other party make available to it, for review and/or
copying, documents not previously requested or produced in the
litigation that are reasonably required in the negotiation process.
Such requests shall be limited in nature and reasonably precise in
their description of the documents requested; such requests shall
not be burdensome or overly-broad. Further, the parties reserve
their right to withhold any such documents that, under applicable
law, are irrelevant or qualify as attorney-client or litigation work
product materials. It is agreed that should any disputes over
document production under this paragraph arise, such disputes shall
not affect the [settlement or assessment] process schedule and no
motions to compel may be filed during the pendency of this stay; and
each party shall reserve its right to file any appropriate discovery
requests or motions to compel production of such documents after the
stay is lifted.
The parties in their joint petition shall request that the court
vacate all deadlines dealing with matters or issues covered by this
MOA. The parties agree that the stay of litigation should remain in
effect so long as the parties are engaged in the [settlement or
assessment] process pursuant to this MOA. If this MOA should
terminate prior to a final settlement and court approval of a final
consent decree, all litigation shall continue as before, all pending
motions shall be recalendered, and all court deadlines shall be
reimposed, except all such deadlines shall be extended as set forth
in Attachment ____, hereto.
The parties may jointly request the court to designate a
mediator or special master, with expertise in natural resource
damage actions, for assistance in resolving disputes over legal or
other issues upon which the parties cannot agree. Such involvement
by the court's designee shall not result in any final or binding
decision on any such issue, but rather shall be in the form of
mediation assistance to help the parties reach mutual agreement on
such disputed issues. The costs for any such mediator or special
master shall be shared equally between the [trustee(s)] and the
[RP(s)].
Confidentiality
To encourage full and frank discussions, the parties further
agree to jointly petition the court to order that the substance of
all settlement negotiations are confidential and that all documents
and information related thereto, except the parties' joint petition,
the court's Order, and the matters described in Section ____ above,
shall not be released to anyone outside of the attorneys,
consultants, and administrative personnel involved in this action or
the negotiations and their principals.
Modification
This MOA may be modified by agreement of the parties. All
modifications shall be in writing and signed by authorized
representatives of the parties. All modifications shall be submitted
to and filed with the court.
Termination
At any time either party may terminate this MOA and the
[settlement or assessment] process upon thirty (30) days' written
notice to the other party. The stay of litigation shall be lifted
thirty (30) days after receipt by the non-terminating party of the
notice of termination; and the date upon which the stay is lifted
shall be the ``MOA Termination Date.''
Non-Waiver of Claims, Defenses, and Privilege
Neither party waives any privilege, defenses, or claims that
could otherwise be asserted with respect to any claims made or
information or data communicated or acquired by virtue of these
settlement discussions or related proceedings. Statements made in
the negotiation process shall not constitute a waiver of any claims
or defenses nor serve any party as a substitute for the need to
develop evidence to be used in any litigation now pending or which
may subsequently be filed for or against the parties. Neither party
will oppose discovery, including the depositions of witnesses,
relating to the natural resource damage action on the grounds that
the discussions as contemplated herein serve as a substitute for
discovery or that discovery shall be repetitive of information
obtained during the negotiations. These negotiations shall be
conducted pursuant to Rule 408, Federal Rules of Evidence, which
shall be binding upon all participants in the [settlement or
assessment] process discussions. These negotiations do not protect
from discovery any information otherwise discoverable merely because
it is presented in these or subsequent negotiations.
Attachment A--Schedule for Performance
[Note: Parties should devise reasonable time tables for each
phase and component. Parties should also provide for an expedited
process for modifications that may become necessary in the
schedule.]
Appendix C to Part 990--Expedited Damage Assessment: Oil
Characteristics
Very light refined products, such as gasoline and jet fuel, are
extremely volatile and usually evaporate within hours to days after
being discharged. They usually contain high concentrations of toxic
compounds that can result in high but localized mortality to water-
column and intertidal resources. Yet, because of their volatility,
they are generally non-persistent and cause little or no residual
contamination of sediments and organisms. Where a discharge of these
products results in minimal residual contamination of sediments and
organisms, the trustee(s) may determine an EDA is appropriate.
Light oil includes diesel, No. 2 fuel oil, and certain light
crudes. These oils are considered to be moderately volatile. Up to
50 percent can evaporate within the first 24 hours depending upon
the air and water temperatures. Like very light, refined products,
light oils contain high concentrations of the most toxic water-
soluble compounds and therefore may be acutely toxic to water-column
organisms. These oils are moderately persistent and likely to leave
residual oil in the environment with the attendant risk of long-term
contamination of sediments and chronic toxicity to benthic
organisms. Because of these characteristics, the trustee(s) should
evaluate discharges of light oil very carefully prior to selecting
EDA procedures.
Medium crude oils comprise the third category of oil types. Up
to one-third of these oils can evaporate within the first 24 hours
leaving a significant amount of oil persistent in the environment.
The water soluble fraction is acutely toxic immediately after the
discharge. In addition, residual contamination of the sediment
creates chronic toxicity problems. However, there are extensive
databases regarding toxicity problems associated with the sediment
and water column. There are also studies from previous discharges
that have documented the effects of the contamination of certain
habitats, fish and wildlife. The trustee(s) may adopt the EDA
approach where existing data are sufficient to determine injury
using limited, focused studies.
Finally, heavy oils, such as No. 6 fuel oil and Bunker C, result
in little or no loss by evaporation and have very low water
solubilities. These oils can sink in fresh-water habitats and may be
highly persistent in both fresh and salt water systems. Acute
effects may result from smothering rather than aquatic toxicities.
While persistent, the bioavailability and resulting toxicity of the
high molecular-weight polynuclear aromatic hydrocarbons (PAHs) is
not well known. Where extensive contamination of intertidal or
subtidal sediments is likely, it may be necessary to conduct
extensive studies, more appropriate for a CDA, to determine the
injury to resources and/or services.
Appendix D to Part 990--List of Acronyms
ANPRM--Advance Notice of Proposed Rulemaking.
BNA--Bureau of National Affairs.
CDA--Comprehensive Damage Assessment.
CERCLA--Comprehensive Environmental Response, Compensation, and
Liability Act of 1980.
CEQ--Council on Environmental Quality.
CFR--Code of Federal Regulations.
COC--Citizen Oversight Committee.
CV--Contingent Valuation.
CWA--Clean Water Act, as Amended.
DARP--Draft Assessment/Restoration Plan.
DART--Damage Assessment Regulations Team.
DOI--U.S. Department of the Interior.
EDA--Expedited Damage Assessment.
EIS--Environmental Impact Statement.
E.O.--Executive Order.
Fund--Oil Spill Liability Trust Fund.
HVM--Hedonic Valuation Methodology.
LAT--Lead Administrative Trustee.
MOA--Memorandum of Agreement.
MOU--Memorandum of Understanding.
NCP--National Oil and Hazardous Substance Pollution Contingency
Plan.
NEPA--National Environmental Policy Act of 1969.
NMFS--National Marine Fisheries Service.
NOAA--National Oceanic and Atmospheric Administration.
NRDAM/CME--Natural Resource Damage Assessment Model/Coastal and
Marine Environments.
NRDAM/GLE--Natural Resource Damage Assessment Model/Great Lakes
Model.
OMB--Office of Management and Budget.
OPA--Oil Pollution Act of 1990.
OSC--On-Scene Coordinator.
PAH--Polynuclear Aromatic Hydrocarbons.
PJA--Phased Joint Assessment.
QA--Quality Assurance.
RI/FS--Remedial Investigation/Feasibility Study
RP--Responsible Party.
RRT--Regional Response Team.
TCM--Travel Cost Methodology.
U.S. EPA--U.S. Environmental Protection Agency.
U.S.C.--United States Code.
USDA--United States Department of Agriculture.
WTA--Willingness to Accept.
WTP--Willingness to Pay.
[FR Doc. 94-225 Filed 1-4-94; 8:45 am]
BILLING CODE 3510-12-M
