[Federal Register Volume 60, Number 149 (Thursday, August 3, 1995)]
[Proposed Rules]
[Pages 39804-39834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19128]
[[Page 39803]]
_______________________________________________________________________
Part IV
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 990
Natural Resources Damage Assessments; Proposed Rule
Federal Register / Vol. 60, No. 149 / Thursday, August 3, 1995 /
Proposed Rules
[[Page 39804]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 990
RIN 0648-AE13
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) the Oil Pollution Act of 1990 (OPA)
requires the President, acting through the Under Secretary of Commerce
for Oceans and Atmosphere, to promulgate regulations for the assessment
of natural resource damages resulting from a discharge or substantial
threat of a discharge of oil. By today's Notice, the National Oceanic
and Atmospheric Administration (NOAA) is seeking comments concerning
the proposed rule.
The proposed rule is for the use of authorized federal, state,
Indian tribal, and foreign officials, referred to in OPA as
``trustees.'' 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 making the public whole for
injury to natural resources and/or services.
Reviewers of this proposed rule should be aware that NOAA is
subject to a consent decree that requires NOAA to submit a final rule
to the Federal Register by the end of December 1995 (Natural Resources
Defense Council v. United States Coast Guard, No. CV-94-4892, Order for
Partial Settlement (E.D.N.Y. June 26, 1995). Due to the short timeframe
for development of a final rule, reviewers should not expect any
extensions of the comment period.
DATES: Written comments should be received no later than October 2,
1995.
ADDRESSES: Written comments are to be submitted to Linda Burlington or
Eli Reinharz, c/o NOAA/GCNR, 1315 East-West Highway, SSMC #3, Room
15132, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Linda Burlington (telephone (301) 713-
1217) or Eli Reinharz (telephone (301) 713-3038, ext. 193), Office of
General Counsel Natural Resources, FAX (301) 713-1229.
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 (an
incident). Section 1006(b) of OPA provides for the designation of
federal, state, Indian tribal, and foreign natural resource trustees to
determine if injury to, destruction of, loss of, or loss of use of
natural resources and/or services has resulted from an incident, assess
natural resource damages, present a claim for damages (including the
reasonable costs of assessing damages), recover damages, and develop
and implement a plan for the restoration, rehabilitation, replacement,
or acquisition of the equivalent of the injured natural resources and/
or services under their trusteeship.
Section 1006(e)(1) of OPA requires the President, acting through
the Under Secretary of Commerce for Oceans and Atmosphere, to
promulgate regulations for the assessment of natural resource damages
resulting from incidents. By today's Notice, NOAA is seeking comments
concerning the proposed rule. The proposed rule is for use by
designated trustees.
On January 7, 1994, NOAA published a proposed rule for assessing
natural resource damages under OPA (59 FR 1061). NOAA received numerous
comments on the January 1994 proposed rule. Based on these comments,
NOAA is considering a fundamental restructuring of the rule to provide
even greater emphasis upon restoration. To ensure that all interested
parties have adequate opportunity to review and comment on this
restructuring, NOAA is reproposing the rule.
There are several significant differences between today's proposed
rule and the January 1994 proposed rule. First, today's proposed rule
eliminates the need for the determination of ``compensable values'' as
a separate component of a natural resource damage claim. However, this
approach does not make the value of natural resources irrelevant. Value
still plays an important role in designing restoration actions that
will truly make the public and environment whole for the types of
natural resource injuries and service losses resulting from an
incident. Second, the proposed rule emphasizes that trustees will be
seeking, on behalf of the public, restoration of what was lost--natural
resources and/or services provided, both human and ecological. Third,
the proposed rule brings selection of restoration actions clearly into
the public planning process. The public process outlined in the
proposed rule affords federal agencies compliance with the requirements
of the National Environmental Policy Act and accomplishes the goal of
public involvement that was sought in the January 1994 proposed rule.
Finally, the proposed rule authorizes trustees to determine appropriate
assessment methods on an incident-specific basis, from a range of
procedures including simplified methods to complex field studies. The
proposed rule removes the distinction between categories of approaches
termed ``expedited'' or ``comprehensive,'' and provides guidance for
choosing appropriate methods based on the incident and the particular
natural resource injuries or service losses of concern. This proposed
rule does, however, require that assessment methods be reliable and
valid in the particular context, and that the methods be cost-
effective.
Prior to issuing a proposed rule, NOAA published eight Federal
Register Notices requesting information and comments on approaches to
developing natural resource damage assessment procedures. 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). 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
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, 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. 58 FR 4601.
NOAA published the proposed OPA rule on January 7, 1994 (59 FR
1061). The proposed rule contained a statement of issues of interest to
[[Page 39805]]
stimulate discussions on some of the more intriguing suggestions
considered in developing the proposed rule. Immediately after
publishing the proposed rule, NOAA held six regional meetings in
January and February of 1994. A seventh workshop was held in March of
1994 in Washington, D.C., to summarize the discussions and results of
the six regional meetings. NOAA published an informational notice to
summarize the kinds of concerns raised in the discussions and refine
some issues on which NOAA was particularly soliciting comments. 59 FR
32148 (June 22, 1994).
NOAA received numerous comments on the January 1994 proposed rule.
Based on these comments, NOAA is considering a fundamental
restructuring of the rule to provide even greater emphasis upon
restoration. To ensure that all interested parties have adequate
opportunity to review and comment on this restructuring, NOAA is
reproposing the rule.
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 this proposed rule. Subpart A
provides a general introduction, subpart B describes trustee
authorities, subpart C gives definitions pertinent to this proposed
rule, subpart D describes the Preassessment Phase, subpart E describes
the Restoration Planning Phase, and subpart F describes the Restoration
Implementation Phase. Finally, the preamble provides a general summary
of the comments on the January 1994 proposed rule.
INTRODUCTION
I. Goal of OPA: Focus on Restoration
The goal of OPA is to make the public and environment whole for
injury to, destruction of, loss of, or loss of use (injury) of natural
resources and/or services resulting from an actual or substantial
threat of a discharge of oil (OPA sec. 1002(b)(2)(A)). This goal is
achieved by planning and implementing appropriate actions to restore,
rehabilitate, replace, or acquire the equivalent of injured natural
resources and/or services (restore). The purpose of this proposed rule
is to provide a framework for conducting sound natural resource damage
assessments (NRDAs or assessments) that achieve restoration under OPA
for incidents.
This proposed rule emphasizes several processes to achieve the goal
of restoring injured natural resources and services: (1) Identification
and evaluation of injuries to natural resources and/or services; (2)
employing assessment methods relevant to the circumstances of a
particular incident; (3) identification and evaluation of restoration
alternatives; and (4) involvement of the public in the process of
selecting restoration actions appropriate for a given incident.
NOAA believes that an NRDA process that meets the essential
procedural elements of identifying and evaluating relevant injuries and
restoration alternatives, and soliciting public input will accomplish
three major goals: (1) Involve the public in the decision of what
actions will make them whole; (2) ensure that appropriate scientific
procedures and methods for determining restoration actions for a given
incident are followed; and (3) reduce transaction costs.
NOAA recognizes that restoration planning by federal trustee
agencies is subject to the requirements of the National Environmental
Policy Act (NEPA) (42 U.S.C. 4321 et seq.), except when a categorical
exclusion applies. However, NOAA believes that the process identified
in this proposed rule mirrors the decisionmaking process embodied in
NEPA, without requiring significantly different steps or products than
those envisioned in OPA. Thus, compliance with the procedures set forth
in the proposed rule would fulfill the requirements of NEPA. Steps and
products that are analogous under OPA and NEPA are identified in a
diagram in Appendix A at the end of the preamble.
Finally, NOAA has developed guidance documents on various aspects
of the NRDA process. These guidance documents are available in draft
on: Preassessment, injury assessment, restoration, compensation
formulas, and NEPA compliance (citations for the documents are included
in the Bibliography at the end of this preamble). These draft documents
are available from the address at the front of this preamble. The
guidance documents are being prepared in conjunction with this
rulemaking to provide additional technical information to those
performing assessments under OPA and other interested members of the
public. These documents will not constitute regulatory guidance, nor
will they have to be followed for a damage assessment to be conducted
in accordance with these regulations. The documents, in their final
form, will be made available through a public information distribution
service.
II. Overview of the Restoration Planning Process: NRDA Under the
Proposed Rule
Regardless of the scope or scale of the incident, the restoration
planning process provided in this proposed rule is generally the same.
In the Preassessment Phase, trustees must first determine threshold
issues that establish their authority to begin the NRDA process, such
as: (1) Whether OPA is applicable (e.g., did the incident involve
oil?); (2) whether an exclusion from liability under the statute
applies (e.g., natural resources were affected by a discharge from a
public vessel); and (3) whether natural resources under their trustee
authority were potentially affected by the incident. Trustees then
assess whether injuries will be adequately addressed through response
actions, or whether further action is warranted to consider the need
for additional restoration.
If further action is justified, the trustees prepare a ``Notice of
Intent to Conduct Restoration Planning,'' or ``Notice.'' Based on
information available at this early stage of the assessment process,
the Notice may also describe the trustees' proposed strategy for
assessing injury and determining appropriate restoration actions. This
proposed rule advocates using injury assessment procedures that
directly provide information on restoration and are cost effective.
Once the Notice is published, trustees continue with the injury
assessment component of the Restoration Planning Phase, in which
trustees evaluate natural resource and/or service injuries. Following
injury assessment, trustees determine the type and scale of restoration
to address the injuries. Restoration under the proposed rule includes
two components: (1) Primary restoration--actions taken to return the
injured resources and services to baseline, including the natural
recovery option, and (2) compensatory restoration--actions to make the
environment and public whole for resource services lost from the date
of the incident until recovery of the injured resources. The type and
scale of compensatory restoration are related to the type and scale of
primary restoration selected. Scaling of appropriate compensatory
restoration actions is accomplished on a service-to-service comparison
to services lost as a result of the incident, or through valuing the
loss of the services and gains from compensatory restoration projects
where service-based scaling is not feasible.
Trustees develop a Draft Restoration Plan, identifying and
evaluating a
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reasonable range of alternatives for restoring the injuries, including
a no-action alternative, and describing the trustees' tentative
preferred alternatives. The Draft Restoration Plan is subject to public
review and comment, after which a Final Restoration Plan is developed.
The Final Restoration Plan is then implemented during the Restoration
Implementation Phase, either through an agreement by the parties
responsible for the incident (responsible parties) to implement
restoration with trustee oversight, through immediate payment of the
demand for restoration costs by the responsible parties, or through
litigation to collect restoration costs.
The timing and degree of public involvement in the assessment
process, and the type of documents produced at various stages of the
process, will be tailored to the scope and scale of the incident. For
instance, for small incidents assessed with a model or compensation
formula, it may be appropriate to compress the Notice and draft
restoration documents into a single document that reports the inputs
used and results of the model application, along with the alternate and
preferred restoration actions. In contrast, larger incidents that
require in-depth site-specific studies to identify and evaluate
appropriate restoration may require a series of plans that would
benefit from public notice and/or comment. In addition, when trustees
propose to implement part of a regional restoration plan for a given
incident and that plan has previously been available for public review
and comment, trustees may choose only to notify the public of the
decision to link a given incident to the regional plan.
III. Issues of Interest
A. Evaluating a Reasonable Range of Restoration Alternatives
Restoration actions under this proposed rule are defined to include
activities designed to make the environment and public whole for
natural resources and/or services injured as a result of an incident.
Restoration is defined to include primary restoration actions that
return injured natural resources and services to the conditions that
would have existed in the absence of the incident, and compensatory
restoration actions that make the public and the environment whole for
interim service losses. Thus, throughout this proposed rule,
``restoration'' refers to any appropriate combination of primary and
compensatory restoration actions designed to address natural resource
and service injuries.
NOAA proposes that trustees identify a reasonable range of
restoration alternatives and then evaluate those alternatives based on
such factors as: (1) Extent to which each alternative can return the
injured natural resources and services to baseline and make the
environment and public whole for the interim service losses; (2) extent
to which each alternative improves the rate of recovery; (3) extent to
which each alternative will avoid additional injury; (4) level of
uncertainty in the success of each alternative; (5) extent to which
each alternative benefits more than one natural resource and/or
service; (6) cost of each alternative; (7) effects of each alternative
on public health and safety, and the environment; and (8) whether any
alternative violates any laws or regulations.
Like NEPA, this proposed rule only requires that a reasonable range
of restoration alternatives be considered. Under OPA, trustees are
directed to return injured natural resources and services to the
condition that would have existed in the absence of the incident. Thus,
trustees must evaluate possible restoration actions in light of their
effectiveness in returning natural resources and services to baseline.
The lowest cost restoration alternative may not always represent the
preferred alternative. Instead, the costs of restoration alternatives
should be evaluated by comparing the costs of alternative actions to
the relative effectiveness of each in returning injured natural
resources and services to baseline taking interim service losses into
account. Also like NEPA, trustees following this proposed rule are
required to consider a no-action alternative.
B. Regional Restoration Planning
Regional restoration planning is encouraged under this proposed
rule as a mechanism to plan and implement restoration for small
incidents resulting in natural resource and/or service injury, where
incident-specific restoration is impractical. The regional restoration
planning process can pull together proposed or desired projects from
numerous public entities, where such projects would be expected to
restore the types of natural resource and service injuries anticipated
from incidents in particular geographic areas. Regional restoration
plans will shorten the assessment schedule and reduce overall costs,
especially for small incidents. NOAA proposes the NEPA programmatic
environmental impact analysis as a model for evaluating regional
restoration plans.
C. Technical Adequacy of Assessment Procedures
Under this proposed rule, the type and scale of technical and
scientific analyses should be focused on information requirements for
determining restoration given the circumstances of a particular
incident. In making the determination of technical adequacy, trustees
should be guided by current understanding of best scientific practices.
However, when choosing among assessment procedures and methods that
could provide greater levels of certainty or precision in assessment
variables, trustees should evaluate the costs and time requirements of
more in-depth procedures, expected increase in precision, and
likelihood that greater precision will result, relative to the expected
total damages for the injury being evaluated. Thus, for a given set of
circumstances, use of a model or extrapolation from the scientific
literature may be more appropriate for determining restoration than
generating site-specific field data. This analysis of increased costs
associated with expected increases in amount and quality of assessment
information provided by different methods will ensure that assessment
procedures and methods chosen are reasonable.
D. Public Participation
OPA section 1006(c)(5) requires that the restoration process be
open to the public before final decisions are made and actions taken.
The restoration planning process should provide an adequate opportunity
for public participation and addressing public concerns.
In light of this requirement, NOAA is proposing an open planning
process. To prevent delays in the restoration process at the time of an
incident, trustees should afford the public an opportunity to be
involved in planning activities prior to an incident (i.e., pre-
incident planning and regional restoration plan development). If pre-
incident public planning is not possible, the public must, at a
minimum, be invited to participate in the development of draft and
final incident-specific restoration plans. The nature of public
participation will depend on the issues and actions being considered;
however, common elements include: (1) Notice of the decision to proceed
with restoration planning; (2) notice and comment on a Draft
Restoration Plan; and (3) notice of a Final Restoration Plan. Public
meetings may be appropriate in certain circumstances.
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In regard to the development of a restoration plan, NOAA believes
that effective public participation enhances the probability that
appropriate restoration actions will be implemented. Solicitation of
comments from members of the scientific community, including natural
resource injury, restoration, and economic experts, as part of a public
participation program may supplement expert peer review of trustee
strategies, plans, and tentative decisions. This type of public
participation would also satisfy NEPA's requirement that the public be
involved in assessing the environmental consequences of major federal
actions. NOAA also believes that Restoration Plans developed under this
proposed rule serve as Environmental Impact Statements (EIS) for
purposes of NEPA. Examples of restoration plans that follow the NEPA
EIS format are listed in the bibliography at the end of this preamble.
Cooperative participation by responsible parties in the restoration
planning process is consistent with the goals of an open process. Thus,
NOAA believes that responsible parties should be invited to participate
in the NRDA process, where such participation will not impede
fulfilling the trustees' mandate to restore expeditiously injured
natural resources and services.
DISCUSSION
Subpart A--Introduction
I. Purpose
The purpose of this proposed rule is to promote expeditious
restoration of natural resources and services injured as a result of an
incident. To fulfill this purpose, this proposed rule provides an
administrative process for involving interested parties, a range of
assessment procedures for identifying and evaluating injuries to
natural resources and/or services, and a process for selecting
appropriate restoration actions from a range of alternatives.
II. Scope
This proposed rule is available for use by designated federal,
state, Indian tribal, and foreign natural resource trustees to
determine appropriate actions to restore natural resources and services
injured by a discharge, or substantial threat of a discharge, of oil
into or upon navigable waters or adjoining shorelines or the Exclusive
Economic Zone.
The Secretaries of the Interior, Commerce, Agriculture, Defense,
and Energy are the primary federal natural resources trustees. The
roles and responsibilities of the various federal departments regarding
NRDA vary according to their resource management responsibilities and
the susceptibility of these natural resources and/or services to
injury. Designation of federal trustees and broad guidelines describing
trustee functions are addressed in subpart G of the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part
300.600. For state trustees, most governors have delegated trustee
responsibilities to specific state agencies, as provided under OPA.
III. Effect of Using These Regulations
Assessments performed by federal, state, or Indian tribal trustees
in accordance with these regulations receive the evidentiary status of
a rebuttable presumption provided by OPA section 1006(e)(2). In brief,
this presumption means that the responsible parties have the burden of
proving that the trustees' claim and determinations are incorrect. This
presumption applies to all assessment procedures developed under this
proposed rule. However, where trustees use procedures that are
determined not to be in accordance with this proposed rule, trustees
will not obtain a rebuttable presumption for that portion of the
assessment. Assessments performed by foreign trustees in accordance
with these regulations are not entitled to a rebuttable presumption.
IV. Coordination
A. General
Coordination among all parties affected by an incident is crucial
to an efficient and effective assessment. Coordination, from pre-
incident planning through joint and cooperative assessment, restoration
planning and implementation, can assist in decreasing the time until
restoration is implemented, preventing double recovery of damages, and
ensuring that assessment costs are reasonable. More detailed discussion
of some aspects of coordination appears in Appendix B at the end of
this preamble.
B. Coordination Among Trustees
This proposed rule encourages trustees with shared or overlapping
natural resource management and protection jurisdiction to coordinate
their NRDA activities, including coordination in pre-incident planning.
Coordination among trustees will avoid duplicative claims for damages,
address shared trust resource concerns, and result in more effective
funding of assessment work. Trustees must designate a Lead
Administrative Trustee for each joint assessment under this proposed
rule and the NCP. This rule encourages trustees to consider cooperation
agreements such as memoranda of understanding, to structure both non-
incident and incident-specific activities. Trustees may act
independently when there is a reasonable basis for dividing NRDA
responsibilities, so long as there is no double recovery of damages for
the same incident and natural resource. However, independent
assessments may not be in the best interests of the trustees, the
responsible party, or in achieving prompt restoration of injured
resources.
C. Coordination With Response Agencies
Coordination among trustees and response agencies can result in
reducing or eliminating natural resource and/or service injuries
residual to the cleanup. ``Response'' or ``cleanup'' refers to those
actions taken under the NCP to protect public health and welfare or the
environment when there is a discharge or a substantial threat of a
discharge of oil, including actions to contain or remove discharged oil
from water and shorelines.
D. Coordination With Responsible Parties
Active and early involvement of responsible parties may eliminate
some of the problems trustees have encountered immediately following an
incident, such as lack of funding, personnel and equipment. In
addition, a joint trustee-responsible party assessment may be more
cost-effective and avoid duplicate studies. Therefore, the proposed
rule requires the trustees to invite the responsible parties to
participate in the NRDA process.
The proposed rule leaves determination of the timing and extent of
responsible party participation to the judgment of the trustees on an
incident-specific basis. While active responsible party involvement is
the preferred method of conducting assessments, it may not be
appropriate for trustees to delay assessment activities while
negotiating the terms of responsible party involvement.
In making a determination to allow responsible party participation
in the assessment, trustees should consider factors including, but not
limited to: (1) Whether responsible parties have been identified; (2)
the willingness of responsible parties to participate in the
assessment; (3) the willingness of responsible parties to fund
assessment costs of the trustees; and (4) the willingness and ability
of responsible parties to conduct assessment activities in a
technically sound and timely manner.
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E. Coordination With the Public
A major goal of OPA is to involve the public in the restoration
planning process. The proposed rule requires trustees to provide public
notice of their intent to conduct restoration planning, and allow for
public review and comment on the Draft Restoration Plan. Depending on
the nature of the incident and expected assessment activities, comment
may be solicited at additional stages to ensure the best information
base is available to trustee decisionmakers.
In highly complex incidents, or those incidents that are expected
to involve multi-year efforts, trustees may have an opportunity to set
up one or a series of public meetings to ensure opportunity for public
input. Attendance should be encouraged by all parties that are
involved, participating, or interested in the incident.
Trustees may also conduct public outreach on non-incident-specific
restoration issues. Trustees are responsible for representing the
public's interests in natural resources and/or services affected by
incidents. Trustees can better fulfill this trust responsibility by
informing the public about NRDA provisions in statutes and the
processes trustees undergo in assessing injury and determining
restoration actions.
To the fullest extent practicable, trustees should implement public
outreach, which will:
(1) Encourage a broad understanding of restoration and build trust,
thus allowing for quicker recognition and support of the restoration
process overall;
(2) Provide opportunities for joint fact-finding, improving the
collection of quality data; and
(3) Incorporate public concern, providing for more effective
restoration planning.
V. Considerations for Facilitating Restoration
A. General
Pre-incident planning and regional restoration plan development are
tools trustees should consider as means to enhance successful
restoration planning and implementation. More extensive discussion on
these topics is included in Appendix B at the end of this preamble.
B. Pre-Incident Planning
NOAA believes that commitment of time, funding, and personnel to
planning prior to an incident will help ensure that the assessment
process results in technically sound and cost-effective plans. Pre-
incident plans may: identify natural resource damage assessment teams;
establish trustee notification systems; identify support services;
identify natural resources and/or services at risk; identify regional
and area response agencies and officials; identify available baseline
information; establish data management systems; and identify assessment
funding issues and options. Potentially responsible parties should be
included in the pre-incident planning process to the fullest extent
practicable.
C. Regional Restoration Planning
OPA emphasizes making the environment and public whole for natural
resource and/or service injuries. Where practicable, incident-specific
restoration is the preferred alternative to accomplish this goal.
However, for many incidents, including smaller incidents, such
incident-specific action may be impractical. Yet, the impact of small
incidents may still represent a significant concern for trustees. Thus,
to achieve OPA's mandate to restore injured natural resources and
services regardless of the type and scale of those injuries, trustees
are encouraged to use or modify existing regional restoration plans, or
develop new regional restoration plans. Planning in a regional (e.g.,
ecosystem or watershed) context is appropriate so long as natural
resources and/or services comparable to those expected to be injured by
an incident are addressed in the plans.
VI. Review of the Regulations
Although OPA does not contain a specific provision for the update
of these regulations, NOAA believes that they should be reviewed on a
regular basis to keep the procedures current with new developments.
Thus, NOAA is proposing that these regulations be reviewed and revised,
as appropriate, at least every five years.
Subpart B--Authorities
I. Relationship to Other NRDA Regulations
A. CERCLA Regulations
The Department of the Interior (DOI) has developed regulations for
assessing natural resource damages resulting from hazardous substance
releases under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA) (42 U.S.C. 9601 et seq.), and the
Clean Water Act (33 U.S.C. 1321 et seq.). The CERCLA regulations are
codified at 43 CFR part 11. The CERCLA regulations originally applied
to natural resource damages resulting from oil discharges as well as
hazardous substance releases. This proposed rule will supersede 43 CFR
part 11 with regard to discharges of oil and substantial threats of a
discharge of oil, when final. Assessments commenced under the CERCLA
regulations before the effective date of the final OPA rule may be
completed in compliance with the CERCLA regulations, and will be deemed
conducted in accordance with the OPA regulations.
If natural resources and/or services are injured by a discharge or
release of a mixture of oil and hazardous substances, trustees must use
43 CFR part 11 in order to obtain a rebuttable presumption.
B. State, local, and Indian tribal NRDA Procedures
Many states have developed their own NRDA statutes and regulations.
When state, local, or Indian tribal NRDA procedures are determined to
be in accordance with this proposed rule, use of these procedures will
afford the trustees the evidentiary benefit of the rebuttable
presumption. Under the proposed rule, state, local, or Indian tribal
NRDA procedures are in accordance with the OPA regulations when the
procedures:
(1) Require all recovered damages to be spent on restoration,
subject to a plan made available for public review and comment, except
for those damages recovered to reimburse trustees for past assessment
and emergency restoration costs;
(2) Determine compensation based on injury and/or restoration;
(3) Are consistent with the standards for the technical procedures
and methods outlined in Sec. 990.51 of this part;
(4) Were developed through a public rulemaking process; and
(5) Do not conflict with OPA or this proposed rule.
II. Relationship to the NCP
The proposed rule would supplement the procedures established under
the NCP for the response to an incident, and provide procedures by
which trustees may determine appropriate restoration of injured natural
resources and services that are not fully addressed by response actions
conducted pursuant to the NCP.
III. Prohibition on Double Recovery
The proposed rule requires trustees to consider the actions of
other trustees with respect to the same incident and natural resources
and the effect of the prohibition on double recovery of damages in OPA
section 1006(d)(3).
[[Page 39809]]
IV. Compliance With Other Applicable Laws and Regulations
NEPA applies to restoration planning by federal trustees, unless a
categorical exclusion applies. NEPA is triggered when federal trustees
issue a Notice of Intent to Conduct Restoration Planning, under
Sec. 990.43 of the proposed rule. NOAA believes that compliance with
the procedures in the proposed rule would fulfill the requirements of
NEPA.
When taking actions under this proposed rule, trustees must comply
with all worker health and safety considerations specified in the NCP
for response actions.
Where an incident implicates trustees' statutory or regulatory
requirements in addition to those in OPA and this proposed rule,
trustees should comply with those requirements. Compliance with all
applicable laws and regulations will help to minimize duplicative and
conflicting efforts. When following procedural requirements other than
those specified by OPA and this proposed rule, trustees should identify
those requirements in the restoration plan. Applicable requirements
that may need to be considered include, but are not limited to the:
Endangered Species Act; Coastal Zone Management Act; Migratory Bird
Treaty Act; National Marine Sanctuaries Act; National Historic
Preservation Act; Marine Mammal Protection Act; worker health and
safety-related acts; and NCP. To the extent that federal trustees can
legally comply with state, local, or Indian tribal procedural
requirements, they should do so.
V. Settlement Authority
Trustees may settle claims for natural resource damages at any
time, provided that the settlement is adequate in the judgment of the
trustees to make the environment and public whole for the injury,
destruction, loss of, or loss of use of natural resources and/or
services that have or are likely to have occurred; with particular
consideration of the adequacy of the compensation to provide for the
restoration of such resources. Sums recovered in settlement of such
claims may only be expended in accordance with a restoration plan that
is made available for public review.
VI. Emergency Restoration
Emergency restoration actions should be considered in situations
where immediate action is necessary to minimize continuing or prevent
additional injury. Although emergency restoration actions may be
considered and implemented by trustees at any time throughout the NRDA
process if the above conditions are met, typically trustees begin
evaluating the need for emergency restoration during response. If
emergency restoration actions have the potential to interfere with the
response, trustees must consult and/or coordinate with response
agencies prior to implementing emergency restoration. Where emergency
restoration actions are not expected to interfere with response
activities, trustees must notify response agencies prior to
implementation of emergency restoration to inform the latter of the
trustees' intended actions and reasoning for believing that no
interference with the response will result.
Trustees must provide notice to the responsible parties of any
emergency restoration actions and invite their participation in the
conduct of those actions within a reasonable timeframe.
Emergency restoration is an exception to the OPA section 1006(c)(5)
requirement that actions be subject to prior public review and comment.
Because of this exception, this proposed rule allows trustees to take
emergency restoration action only if such action is feasible, likely to
achieve the goal of minimizing or preventing injury, and is conducted
at a cost that is not unreasonable. Notifying the public of the
justification for, the nature and extent of, and the results of
emergency restoration actions within a reasonable time following the
actions is consistent with emergency action guidance under NEPA as
well.
The costs associated with evaluating, planning, and implementing
emergency restoration may be claimed as part of the damages claim.
Subpart C--Definitions
There are a number of fundamental terms and concepts that are not
explicitly defined or described in OPA. Interpretation of these terms
and concepts plays a critical role in the NRDA process under OPA.
Relevant definitions in OPA, CERCLA, the Clean Water Act, or other
related laws, and associated regulations, are repeated in this proposed
rule as a matter of reference. Other terms and concepts found in this
proposed rule were developed to be consistent with current usage.
This section concentrates on some of the terms and concepts that
are foundational to the NRDA process under this proposed rule, such as
``injury,'' or terms that do not possess a common meaning.
Baseline
As defined in this proposed rule, the term baseline refers to the
condition of natural resources and/or services that would have existed
had the incident not occurred. Although injury quantification requires
comparison to a baseline condition, site-specific baseline information
may not be required. In many cases, injuries can be quantified in terms
of incremental changes, rather than in terms of absolute changes
relative to a known baseline. For example, Type A models do not require
site-specific baseline information to quantify injury. Rather, the
injury is quantified in terms of incremental adverse changes resulting
from the incident. Similarly, counts of oiled bird carcasses can be
used as a basis for quantifying incremental bird mortality resulting
from an incident.
This proposed rule does not distinguish between baseline,
historical, reference or control data in terms of value and utility in
determining the degree and spatial/temporal extent of natural resource
and/or service injuries. To the extent that baseline data, historical
data, reference data or control data can provide valid information on
which to base a determination of the projected conditions of the
natural resource and/or service in the absence of the incident, these
forms of data may effectively serve as baseline information. Trustees
are encouraged to collect information from the field, laboratory,
literature, models, or any combination thereof.
Types of information that may be useful in determining baseline
include:
(1) Information collected on a regular basis and for a period of
time;
(2) Information identifying historical patterns or trends;
(3) Information from areas unaffected by the incident, that are
judged sufficiently similar to the area of the incident with respect to
the variable being measured; or
(4) Information from the area of the incident after the particular
variable, e.g., interim lost use, has been judged to have recovered.
Exposure
Exposure documentation is required to determine injury under this
proposed rule except when natural resource and/or service injuries are
the result of response activities or the substantial threat of a
discharge of oil. Exposure can be expressed broadly as direct or
indirect contact with the discharged oil. Exposure may be determined,
alone or in combination, through: field investigations; laboratory
exposure studies; transport and fate modeling; or the literature.
[[Page 39810]]
Incident
An incident is any occurrence or series of occurrences 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 into or upon navigable waters or adjoining
shorelines or the Exclusive Economic Zone. When a discharge of oil
occurs, natural resources and/or services may be injured by the actual
discharge of oil or response activities related to the discharge. When
there is a substantial threat of a discharge of oil, natural resources
and/or services may also be injured.
Injury
OPA authorizes trustees to recover damages for ``injury to,
destruction of, loss of, or loss of use of'' natural resources (sec.
1002(b)(2)(A)). Trustees must establish that injury has resulted from
an incident. Under this proposed rule, injury is defined as an
observable or measurable adverse change in a natural resource or
impairment of a natural resource service. Measurable adverse changes
may be projected through use of models or extrapolation techniques.
There are two general bases for determining injury under this
proposed rule. Trustees must either determine that: (1) The natural
resource was exposed, there is a pathway connecting the incident with
the resource, and an adverse change to the natural resource and/or
service has occurred; or (2) for injuries resulting from response
actions or incidents involving a substantial threat of a discharge, an
injury to a natural resource or an impairment of use of a natural
resource service has occurred as a result of the incident. Thus, under
this proposed rule, injury may result from direct or indirect exposure
to oil, as well as from response-related activities, and loss of
services is explicitly included in the definition of injury.
Oil
Under OPA section 1001(23), ``oil'' includes:
Oil of any kind or in any form, including, but not limited to,
petroleum, fuel oil, sludge, oil refuse, and 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 [CERCLA] and which is subject to the
provisions of that Act.
If a component of a mixed spill is a hazardous substance under
CERCLA, CERCLA and the CERCLA NRDA regulations apply. The definition of
``oil'' under OPA does not cover all petroleum-related products. For
instance, substances whose properties or behavior are substantially
different from oil (e.g., natural gas condensates) are excluded under
OPA. However, substances that are relatively similar (e.g., non-
petroleum oils such as vegetable oils and animal fats) are covered by
OPA. Although the U.S. EPA and U.S. Coast Guard have recognized that
animal fats and vegetable oils are substantially less harmful to the
environment than petroleum-based oils, the preamble to the recent
revisions to the NCP states that ``oil of any kind or in any form''
clearly suggests the inclusion of non-petroleum oils. 59 FR 47386
(Sept. 15, 1994). This conclusion is also consistent with U.S.
Department of Transportation guidance, which states that ``oil''
includes ``petroleum, fuel oil, vegetable oil, animal oil, sludge, oil
refuse, and oil mixed with wastes other than dredged spoil, but does
not include natural gas condensate.'' 49 CFR 194.5. While the mechanism
of injuries by non-petroleum oils may be different than that of
petroleum oils, it is evident, based on current literature, the nature
of such injuries are similar (i.e., death) for both types of oils.
According to EPA guidance, ``oil'' covered by OPA includes: (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. (U.S.
EPA Memorandum on the Petroleum Exclusion Under the Comprehensive
Environmental Response, Compensation, and Liability Act, July 31, 1987;
BNA, 1988) 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.
Pathway
Pathways include the medium, mechanism, or route by which the
incident has resulted in an injury. For discharges of oil, a pathway is
the sequence of events by which: (1) The oil travelled through various
components of an ecosystem and contacted the natural resource of
concern; or (2) exposure to oil in one part of an ecosystem was
transmitted to the natural resource of concern, without the oil
directly contacting the natural resource.
Reasonable Assessment Costs
To evaluate the reasonableness of assessment costs, the incremental
increase in assessment information must be reasonably related to the
action's incremental cost. The scale of assessment efforts must be
appropriate in the judgment of the trustees relative to the need for
increased information, which is a highly incident-specific
determination. The costs of an assessment or assessment actions that
are focused on providing information required to determine restoration
requirements must also be judged relative to the extent of injury and
expected restoration costs for the incident. Reasonable assessment
costs also include the administrative, legal, and enforcement costs
necessary to carry out this part. Trustees may recover the reasonable
assessment costs they incur under this proposed rule even if they
ultimately determine not to pursue restoration, provided they establish
jurisdiction under OPA during the Preassessment Phase.
Recovery
Recovery is defined in the proposed rule as the return of injured
natural resources and services to baseline. This concept encompasses
the inherent tendency for natural resource and/or service attributes to
vary over space and time.
Projecting recovery involves determining the likelihood and rate at
which natural resources and/or services will return to baseline. The
availability and quality of baseline information can influence recovery
projections. Trustees should use the best available information that
can be gathered through field or laboratory studies, models, the
literature, and other sources appropriate to the incident or injury to
project recovery.
Restoration
Under this proposed rule, restoration is broadly defined as any
action or combination of alternatives or actions to restore,
rehabilitate, replace, or acquire the equivalent of injured natural
resources and services.
This proposed rule includes the concepts of primary and
compensatory restoration. Primary restoration is human intervention or
natural recovery that returns injured natural resources
[[Page 39811]]
and services to baseline. Compensatory restoration is action taken to
make the environment and the public whole for service losses that occur
from the date of the incident until recovery of the injured natural
resource.
Services
Natural resources are valued in terms of the services or functions
they provide to other natural resources or the public. Thus, under this
proposed rule, services refer to the ecological functions performed by
natural resources or the public benefits derived therefrom. Such
services can be classified as follows:
(1) Ecological services--the physical, chemical, and biological
functions that one natural resource provides for another. Examples
include provision of food, protection from predation, nesting habitat,
and biodiversity, among others; and
(2) Public services--the functions that natural resources provide
for the public. Examples include fishing, hunting, nature photography,
education, and access, among others.
Value
An individual's value of a good is represented by the amount of
other items that the individual is willing to give up to obtain or is
willing to accept to forgo the good. The total value of a natural
resource or service includes direct use values (e.g., values
individuals derive from consuming or viewing a natural resource) and
passive use values (values not linked to direct use, e.g., the value
individuals derive from knowing a natural resource exists). In many
contexts, particularly in markets, value is represented in terms of
units of currency, the commonly accepted form of exchange. However,
value can be measured using a variety of possible measures, including
units of a resource service. In this proposed rule, value can be
measured either in terms of units of resource services or dollar
amounts.
Subpart D--Preassessment Phase
I. Purpose
During the Preassessment Phase, trustees make several critical
determinations that shape the remainder of the assessment. Trustees
must initially determine whether actions under OPA are justified, then
proceed to make early estimates about the types of injury assessment
and restoration actions that may be warranted, based on the
circumstances of a given incident.
II. Determinations
A. Determination of Jurisdiction
In order for trustees to proceed with restoration planning under
OPA, certain conditions must be met:
(1) An ``incident'' under OPA has actually occurred (i.e., there
has been a discharge or substantial threat of a discharge of oil);
(2) The incident does not fall within exclusionary conditions set
forth in section 1002(c) of OPA (e.g., the discharge was not allowed by
federal permit); and
(3) Natural resources under the trusteeship of the trustees have or
may be affected as a result of the incident.
Frequently, the first two conditions are determined by the response
agency; USCG or EPA may have already made these determinations that OPA
applies to the incident before notifying trustees. The third condition,
however, is necessarily determined by each trustee. If any of these
conditions is not met, the trustees may not take additional action
under this proposed rule.
A determination that OPA applies and that a trustee has
jurisdiction to act under OPA may trigger initiation of the NRDA
process.
B. Determination to Conduct Restoration Planning
1. General
The key determination to be made by trustees in the Preassessment
Phase is whether it appears likely that restoration actions should be
pursued by the trustees. This determination depends on the following
conditions:
(a) Injuries likely have resulted or will result from the incident;
(b) Response actions may not adequately address the potential
injuries; and
(c) Feasible restoration actions exist to address the potential
injuries.
If any of the above conditions is not met, trustees may not take
additional action under this part. However, trustees may recover all
reasonable assessment costs incurred up to the point when they
determined that the conditions were not met. If all of the above
conditions are met, the trustees must issue a ``Notice of Intent to
Conduct Restoration Planning'' (Notice). The form and content of this
Notice will vary depending on the circumstances of individual
incidents, and is discussed below.
Other factors to consider during the Preassessment Phase include:
funding, data collection, and opening the administrative record.
Trustees may also need to consider the applicability of the defenses to
liability provided in OPA section 1003 and the monetary caps on
liability provided in OPA section 1004.
2. Identifying Natural Resources and/or Services at Risk
Determining whether natural resources and/or services are, or are
likely to be, injured requires that trustees consider the:
(a) Circumstances of the incident. Factors to consider may include
geographic location, source, type, time and duration, and volume of the
discharge;
(b) Characteristics of the discharge or threatened discharge.
Factors to consider may include physical parameters of the oil;
(c) Characteristics of the natural resources. Factors to consider
may include the natural resources in the area of the incident, the
services they provide, habitat and species types, seasonal implications
on sensitive life stages, and unique ecological components; and
(d) Potential for injury. Factors to consider may include potential
for exposure, plausible pathways, causal mechanisms, and availability
of assessment procedures and data to analyze these factors.
3. Effectiveness of Response Actions in Eliminating Injury
Once trustees ascertain that trust resources and/or services are,
or may be expected to be, injured as a result of the incident, trustees
can make the determination whether these concerns are likely to be
adequately addressed through response actions. If response actions will
not alleviate residual natural resource and/or service injuries,
trustees must determine whether there is a need and potential for
restoration actions to address residual impacts, and begin identifying
these actions, to facilitate the Restoration Planning Phase of the NRDA
process.
4. Early Identification of Potential Restoration Actions
Whenever practicable, potential restoration actions need to be
identified as early in the NRDA process as possible. Such
identification is needed to help justify the decision to proceed with
an assessment that will lead to restoration actions, and provide focus
for designing injury assessment studies that will produce useful
information on the type and scale of restoration needed for injured
natural resources and services. Some considerations important to the
early identification of restoration actions include:
[[Page 39812]]
(a) Potential nature, degree, and spatial/temporal extent of
injury, with or without restoration;
(b) Need and potential for restoration;
(c) Potential scope and scale of restoration;
(d) Extent to which relevant information is known, or the time and
money required to obtain such information; and
(e) Requirements imposed by other laws and regulations that would
affect restoration.
If trustees determine that restoration actions are appropriate to
the incident, the trustees should proceed to the Restoration Planning
Phase.
III. Notice of Intent to Conduct Restoration Planning
If the trustees determine that there is a reasonable likelihood
that injury has occurred as a result of the incident and restoration
actions that would address these injuries should be pursued, the
trustees may proceed with injury assessment. At this point, the trustee
must prepare the Notice of Intent to Conduct Restoration Planning
documenting the trustees' preassessment activities and the basis for
the decision to proceed. Depending on information available at this
early stage of the assessment process, the Notice may also include a
description of the trustees' proposed strategy to assess injury and
determine the scope and scale of restoration. The contents of a Notice
may vary, but will typically discuss:
(a) The facts of the incident;
(b) Trustee authority to proceed with assessment;
(c) Natural resources and/or services that are, or are likely to
be, injured as a result of the incident;
(d) Potential restoration actions relevant to the expected
injuries; and
(e) If determined at the time, potential procedures to assess
injuries, and determine the appropriate scope and scale of restoration
for the affected natural resources and services.
The Notice must be made publicly available. The means by which it
is made publicly available and whether public comments are solicited on
the Notice will depend on the scope and scale of the incident, and the
need to conduct further investigation to identify likely injury
assessment and restoration actions, among other things. Trustees must
also provide a copy of the Notice to the known responsible parties and
invite their participation in the conduct of restoration planning.
IV. Administrative Record
The administrative record facilitates the restoration process by
providing a central repository for all materials relied upon by
trustees in making final determinations about restoration actions
appropriate for an incident. The administrative record should be opened
after trustees determine the need to conduct restoration planning. The
Notice will identify a trustee representative to contact with questions
regarding the administrative record.
The administrative record must contain sufficient information to
support the public's review of the trustees' decisionmaking process.
The administrative record must contain documents and other factual
information considered by trustees in selecting assessment actions,
including documents that support options the trustees ultimately
rejected. Pertinent documents submitted in a timely manner by the
responsible parties and public, including public comments, must be
included in the administrative record.
The administrative record should be limited to final documents when
possible. Where no final document is available at the time of selection
of restoration actions, the draft may be included in the administrative
record if the document contains information not found in other
documents in the record, but which is considered by the trustees in
selecting a restoration action. Pre-decisional, deliberative internal
agency memoranda should be treated like draft documents, i.e., excluded
from the record, unless relied upon in choosing restoration actions.
Ordinarily, the administrative record should include: the Notice,
draft and final restoration plans, and public comments. Any relevant
data, investigation reports, scientific studies, work plans, quality
assurance plans, decision documents, and literature may be included in
the administrative record. Any agreements among the participating
trustees or with the responsible parties should also be included in the
administrative record.
Although this proposed rule is silent on the standard of review for
NRDA, NOAA expects that assessments and restoration selection based on
an open administrative record will be afforded review on the record by
the courts.
V. Data Collection During Preassessment
This proposed rule allows trustees to conduct limited data
collection and analysis throughout the Preassessment Phase. The purpose
of data collection at this stage is to facilitate the determination of
whether natural resources and/or services have been injured by the
incident and require some form of restoration. Ephemeral information
(i.e., information that may be lost if not collected immediately) may
also be collected during the Preassessment Phase if the information is
necessary for any stage of the restoration planning process. In
addition, information needed to design and implement anticipated
assessment procedures may be collected during this phase. Data
collection during this phase must be coordinated with response actions
such that the collection does not interfere with or hinder the response
actions.
Subpart E--Restoration Planning Phase
I. Purpose
The purpose of the Restoration Planning Phase is to evaluate
information on potential injuries to natural resources and/or services
(injury assessment), and use that information to determine the need for
and scale of restoration actions (restoration selection). The NRDA
process is essentially a restoration scoping exercise, and the various
studies and analyses conducted during this phase should be viewed from
the restoration perspective.
During the Restoration Planning Phase, trustees should focus on
determining which natural resources and services need to be restored,
and how to design and scale that restoration. Potential NRDA activities
should be scrutinized closely to ensure that the results will be useful
and relevant to restoration.
The Restoration Planning Phase integrates and provides the linkage
between injury and restoration, through the injury assessment and
restoration selection components of the phase. Development of a
conceptual linkage between injury and restoration early in the NRDA
process (i.e., in the Preassessment Phase) should both expedite the
assessment process and minimize costs by assisting the trustees in:
focusing on the most relevant injuries to be included in the
assessment; designing studies that are relevant to restoration; and
designing appropriate restoration projects.
II. General Criteria for Acceptable Procedures
In order to be in accordance with this proposed rule, any
procedures for assessing injury and scaling restoration actions must be
consistent with the following criteria:
(a) If available, injury determination and quantification
procedures that provide information of use in determining the
appropriate type and
[[Page 39813]]
level of restoration appropriate for a particular injury or loss shall
be used;
(b) If a range of procedures providing the same type and quality of
assessment information are available, the most cost-effective procedure
will be used;
(c) The incremental cost of more complex studies must be reasonably
related to the expected increase in relevant assessment information
provided by the more complex study; and
(d) Procedures selected must be reliable and valid for the
particular context.
III. Injury Assessment
A. Purpose
The goal of injury assessment, which includes determination and
quantification of injury, is to determine the nature, degree, and
spatial/temporal extent of injuries to natural resources and/or
services, thus providing a technical basis for evaluating the need for
and scale of restoration. While the basic steps discussed below are
applicable to all assessments, selection of approaches for
demonstrating exposure, pathway, and injury will be incident-specific.
Thus, this proposed rule provides a range of possible procedures and
methods for injury determination and quantification, including
simplified (e.g., models, literature extrapolation) and more detailed
procedures (e.g., generation of original data). Trustees are encouraged
to use simplified procedures, when appropriate.
Under OPA, trustees must determine whether injuries ``resulted
from'' the incident. Establishing that a specific injury has resulted
from a particular incident may be accomplished through a number of
procedures, alone or in combination. These include field
investigations, laboratory studies, models, and the literature.
To determine injury under this proposed rule, trustees must
determine if:
(1) The definition of ``injury'' is met; and
(2) The injured natural resource has been exposed to the discharged
oil and a pathway links the incident and the injured natural resource
and/or service, or,
for injuries resulting from response actions or incidents involving a
substantial threat of a discharge, an injury or an impairment of use of
a natural resource service has occurred as a result of the incident.
If any of the above conditions for determining injury provided in
this section is not met, trustees may not take additional action under
this part. However, trustees may recover all reasonable assessment
costs incurred up to the point when they determined that the conditions
were not met. If all the conditions are met, trustees may proceed with
the assessment. These steps and concepts are described in more detail
below.
B. Injury Determination
1. Definition of Injury
Under this proposed rule, trustees must determine if the definition
of ``injury'' has been met. ``Injury'' is defined as an observable or
measurable adverse change in a natural resource or impairment of a
service.
Injury includes adverse changes in the chemical or physical quality
or viability of a natural resource. The simplest example is death of an
organism, but indirect, delayed, or sublethal effects may also be
considered. Other potential categories of injuries include adverse
changes in: survival, growth, and reproduction; health, physiology and
biological condition; behavior; community composition; ecological
processes and functions; physical and chemical habitat quality or
structure; and services to the public.
Although injury often is thought of in terms of adverse changes in
biota, the definition of injury under this rule is broader. Injuries to
non-living resources (e.g., removal of oiled sand on a beach) as well
as injuries to resource services (e.g., lost use associated with a
fisheries closure to prevent harvest of tainted fish, even though the
fish themselves may not be injured) may be considered.
This list of potential adverse changes is not intended to be
inclusive of all injuries that trustees may evaluate.
2. Exposure
The purpose of the exposure portion of an injury assessment is to
determine whether natural resources came into contact with the oil from
the incident. Early consideration of exposure (i.e., ideally during the
Preassessment Phase) should help to focus the assessment on those
natural resources and/or services that are most likely to be affected
by an incident.
Trustees must determine whether the natural resource came into
contact, either directly or indirectly with the oil discharged from the
incident. Under this proposed rule, exposure is broadly defined to
include not only direct physical exposure to oil, but also indirect
exposure (e.g., injury to a organism as a result of a food web
disruption). Documenting exposure is a prerequisite to determining
injury, except for response-related injuries and injuries from
substantial threats of discharges. However, evidence of exposure alone
may not be sufficient to conclude that injury to a natural resource has
occurred (e.g., the presence of petroleum hydrocarbons in oyster
tissues may not, in itself, constitute an injury).
Exposure can be demonstrated with either quantitative or
qualitative methods. As with other elements of the NRDA process,
selection of approaches for demonstrating oil exposure will depend on
the type and volume of discharged oil, natural resources at risk, and
nature of the receiving environment. For example, chemical analysis of
oil in sediments, alone, may not be adequate to conclude that a benthic
organism was otherwise exposed to the oil. Likewise, the presence of
petroleum in fish tissue, alone, may not be adequate to link the
exposure to the discharge because metabolism of the oil may blur the
chemical characterization. The combination of the two approaches may,
however, demonstrate exposure.
Typically, procedures for exposure analysis include: (a) Field
observations or measurements; (b) laboratory exposure studies; (c)
transport and fate modeling; and (d) the literature. This proposed rule
emphasizes that these procedures may be used alone, or in combination,
depending on the specific nature of the incident. Trustees must
determine the most appropriate approach to evaluating exposure on an
incident-specific basis. For example, for some types of incidents,
visual observation in the field and/or modeling may be sufficient to
evaluate exposure. For other incidents, more involved site-specific
sampling, including chemical analysis and biological data collection,
may be more appropriate.
3. Pathways
To determine whether an injury resulted from a specific incident, a
plausible pathway linking the incident to the injury must be
identified. As with exposure, demonstrating a pathway is a prerequisite
to determining injury, but evidence of a pathway, alone, is not
sufficient to conclude that injury has occurred (e.g., demonstrating
that prey species are oiled can be used to document that a plausible
pathway to a predator species exists. However, such data do not, in
themselves, demonstrate that the predator species is injured).
Pathway determination can include evaluation of either:
(a) The sequence of events by which the discharged oil was
transported from the incident and came into direct
[[Page 39814]]
physical contact with the exposed natural resource (e.g., oil
transported from an incident by ocean currents, wind, and wave action
to directly oil shellfish); or
(b) The sequence of events by which the discharged oil was
transported from the incident and caused an indirect impact on a
natural resource and/or service (e.g., oil transported from an incident
by ocean currents, wind, and wave action cause reduced populations of
bait fish, which in turn results in starvation of a fish-eating bird;
or, oil transported from an incident by currents, wind, and wave action
causes the closure of a fishery to prevent potentially tainted fish
from being marketed).
Pathway determination does not require that injured natural
resources and/or services be directly exposed to oil. In the example
provided above, fish-eating birds are injured as a result of decreases
in food availability. However, trustees must always determine the
existence of a plausible pathway relating the incident to the injured
natural resource and/or service, even if the injury is not caused by
direct exposure to oil.
Pathways can include, but are not limited to, movement/exposure
through the: water surface; water column; sediments, including bottom,
bank, beach, floodplain sediments; groundwater; soil; air; direct
accumulation; and food-chain uptake.
As with exposure determination, procedures for pathway analysis
include field investigations, laboratory studies, modeling, and the
literature. As noted above, this proposed rule emphasizes that these
procedures may be used alone, or in combination, depending on the
specific nature of the incident. Trustees must determine the most
appropriate approach to determine whether a plausible pathway exists on
an incident-specific basis.
Understanding the potential pathways will also help to narrow the
scope of the NRDA investigation, and may be important in deciding which
assessment procedures to use. For example, the Type A model does not
address injuries that occur via air or terrestrial pathways, thus it
would not be appropriate in such cases.
4. Selection of Injuries to Include in the Assessment
During the Preassessment Phase, trustees may collect information on
a wide range of potential injuries. As a result, a long inventory of
potential injuries resulting from the incident is often developed.
Because the collection of information on injury must be directly
related to the incident and consistent with restoration planning,
developing scientific knowledge for its own sake is not appropriate
under this rule.
To compile the inventory of potential injuries, trustees should
determine the extent to which the following information is known or can
be obtained for each injury:
(a) The natural resource/service of concern;
(b) The adverse change that constitutes injury;
(c) The potential degree, and spatial/temporal extent of the
injury;
(d) The evidence indicating injury;
(e) The mechanism by which injury occurred;
(f) The evidence indicating exposure;
(g) The pathway from the incident to the natural resource/service
of concern;
(h) The potential natural recovery period;
(i) The kinds of primary and/or compensatory restoration actions
that are feasible; and
(j) The kinds of procedures available to evaluate the injury, and
the time and money requirements.
The result of the above analysis will be a list of injuries to be
evaluated in the assessment.
C. Injury Quantification
Injury quantification is the process by which trustees determine
the degree and spatial/temporal extent of injuries. Thus, injury
quantification is the means by which appropriate restoration is
determined.
1. Conceptual Approaches to Quantification
Trustees may pursue one or more of several different conceptual
approaches to injury quantification. Under these approaches, injury may
be quantified in terms of: (a) The degree and spatial/temporal extent
of injury to a natural resource; (b) the degree and spatial/temporal
extent of injury to a natural resource with subsequent translation of
that change to a reduction in services provided by the natural
resource; or (c) the amount of services lost as a result of the
incident. Examples of the first approach include quantifying the number
of seabird mortalities caused by a discharge of oil, or measurement of
the area of a river in which hydrocarbon concentrations exceed water
quality standards. Examples of the second approach include quantifying
reductions in fish populations with subsequent estimation of the number
of recreational fishing days lost as a result of this injury, or
quantifying the amount of lost spawning habitat as a result of oiling
with subsequent estimation of the number of fish that would have been
produced by that habitat. An example of the third approach includes
direct measurement of the number of beach user days lost as a result of
a beach closure. Trustees are encouraged to use whichever approach, or
combination of approaches, is most appropriate to the circumstances of
the incident.
For reasons indicated in subpart C under the definition of baseline
in the preamble, site-specific baseline information may not be
required.
2. Injury Quantification Information Needs
Because the purpose of injury quantification is to design and scale
restoration actions, a large number of quantification measures may be
adopted by trustees. In general, injury quantification should be
designed to evaluate injury by addressing the following:
(a) Degree of the injury. Degree may be expressed in terms of
percent mortality, proportion of a population, species, community, or
habitat affected, extent of oiling, and availability of substitute
services.
(b) Spatial extent of the injury. Spatial extent may include
quantification of the total area or volume of injury.
(c) Temporal extent of the injury. Duration of injury may be
expressed as the amount of time that the natural resource and/or
service will be injured until natural recovery occurs, including past
and interim injury periods.
In order to scale restoration actions, trustees may find it useful
to develop an estimate of the total quantity of injury that integrates
severity, and spatial and temporal extent of injury. For example,
quantification of the total losses of wetland habitat injured by oil
could be obtained by estimating the: (a) Total number of acres of
severely oiled wetland in which vegetation is totally killed; (b)
natural recovery time for severely oiled wetland; (c) total number of
acres of moderately oiled wetland in which vegetation is not completely
killed but the wetland has lower levels of productivity; and (d)
natural recovery time for moderately oiled wetland. This information
could be combined to quantify the total number of ``acre-years'' of
wetland injury to scale restoration actions.
D. Analysis of Natural Recovery
Trustees must estimate the time for natural recovery without
restoration, but including any response actions. Recovery is defined as
a return of injured natural resources and services to baseline.
Analysis of recovery times
[[Page 39815]]
may include evaluation of factors such as: (a) Degree and spatial/
temporal extent of injury; (b) sensitivity of the injured natural
resource and/or service; (c) reproductive potential; (d) stability and
resilience of the affected environment; (e) natural variability; and
(f) physical/chemical processes of the affected environment. Approaches
to estimating recovery times include literature reviews of recovery at
similar sites or for similar species, computer models, and professional
judgement.
E. Injury Assessment Procedures and Methods
1. General
Whenever practicable, procedures should be chosen that provide
information of use in determining the restoration appropriate for that
injury. This proposed rule provides a range of assessment approaches,
from simplified to more detailed. The technical and scientific adequacy
of approaches will be judged based on the circumstances of the incident
and injuries, and the information needed to determine restoration
actions. Trustees should, however, first determine whether simplified
assessment procedures are appropriate for a given incident. In general,
more detailed assessment procedures may include, alone or in any
combination, (a) field investigations; (b) laboratory methods; (c)
model-based methods; and (d) literature-based methods.
2. Selection of Procedures
Trustees must base their selection of assessment procedures on an
evaluation of the following factors:
(a) Potential nature, degree, and spatial/temporal extent of the
injury;
(b) Potential restoration actions for the injury;
(c) Range of assessment procedures available, including the
applicability of simplified assessment procedures;
(d) Time and cost necessary to implement the assessment procedures;
and
(e) Relationship between the information generated by the
assessment procedures and the information needed for restoration
planning.
When trustees have made a determination that a simplified
assessment procedure is the most appropriate procedure for a given
incident or injury, the responsible parties may request that trustees
use incident-specific assessment procedures instead of a simplified
assessment procedure if the responsible parties, in a timeframe
acceptable to the trustees:
(a) Identify the incident-specific assessment procedures to be used
and the reasons supporting the technical appropriateness of such
procedures for the incident or injury;
(b) Advance the costs of using such incident-specific assessment
procedures; and
(c) Agree not to challenge the reasonableness of the costs of using
such incident-specific assessment procedures.
3. Simplified procedures
a. Type A procedures. Trustees may use the Type A procedures
identified in 43 CFR part 11, subpart D, that address oil discharges
provided that conditions are sufficiently similar to those listed in 43
CFR 11.33 regarding use of the procedures. For further discussion, see
Appendix C to this preamble.
b. Compensation Formulas. In the January 1994 proposed rule, NOAA
proposed compensation formulas for use for small incidents in estuarine
and marine environments and inland waters. NOAA is now considering
temporarily reserving those formulas. For further discussion, see
Appendix C to this preamble.
4. Incident-specific procedures
Trustees may also use incident-specific assessment procedures,
provided they are cost-effective and relevant to determining the scope
and scale of restoration appropriate for that injury. Incident-specific
assessment procedures include, alone or in any combination:
(i) Field methods;
(ii) Laboratory methods;
(iii) Model-based methods; and
(iv) Literature-based methods.
IV. Restoration Selection
A. Purpose
Once injury assessment is completed, trustees must develop a plan
for restoring the injured natural resources and services. Under the
proposed rule, trustees must identify a reasonable range of restoration
alternatives, evaluate those alternatives, select an alternative,
develop a Draft Restoration Plan for public review, and produce a Final
Restoration Plan that addresses public concerns.
B. Development of a Reasonable Range of Alternatives
1. General
Trustees must identify a reasonable range of alternative
restoration actions for consideration, except as provided in
Sec. 990.58 regarding the use of a Regional Restoration Plan.
Generally, trustees will identify a package of actions and/or services.
However, if there is a reasonable basis for separately evaluating
actions to restore separate natural resources and/or services, then
trustees may do so. Acceptable restoration actions include any of the
actions authorized under OPA (i.e. restoration, rehabilitation,
replacement, or acquisition of the equivalent), any combination of
those actions, and natural recovery.
Restoration alternatives may have two components: (a) Primary
restoration, which is human intervention or natural recovery that
returns injured natural resources and services to baseline; and (b)
compensatory restoration, which is action taken to make the environment
and the public whole for service losses that occur from the date of the
incident until recovery of the injured natural resources.
What constitutes a reasonable range of alternatives will vary from
case to case but must always include a no-action alternative. A no-
action alternative is not the same as a natural recovery alternative.
Under the no-action alternative, no human intervention would be taken
for primary or compensatory restoration. In contrast, under a natural
recovery alternative, human intervention could be taken for
compensatory restoration action. A natural recovery alternative could
also include minimal primary restoration actions by trustees to prevent
interference with natural recovery (e.g., closing an area to human
traffic).
2. Primary Restoration
Alternative primary restoration actions can range from natural
recovery with no human intervention, to actions that prevent
interference with natural recovery, to more intensive actions expected
to return injured natural resources to baseline faster or with greater
certainty than natural recovery.
When developing the primary restoration components of the
restoration alternatives, trustees must define the desired outcome to
be accomplished, and the criteria by which successful recovery will be
judged. The goals and objectives should be clear and site-specific. The
trustees should define the minimal acceptable criteria for recovery.
When identifying primary restoration alternatives to be considered,
trustees should first consider whether activities exist that would
limit the effectiveness of restoration actions (e.g., residual sources
of contamination). Trustees should also consider whether any primary
restoration actions are necessary or feasible to return the physical,
chemical, and biological conditions necessary to allow recovery
[[Page 39816]]
or restoration of the injured resources (e.g., replacement of sand or
vegetation). Trustees should consider whether restoration actions
focusing on certain key species or habitats would be an effective
approach to achieving baseline conditions.
3. Compensatory Restoration
In addition to primary restoration, trustees have the discretion to
include a compensatory restoration action in some or all of the
restoration alternatives. The service loss that must be addressed by a
particular compensatory restoration action will vary depending on the
nature of the primary restoration component of the overall restoration
alternative.
a. Developing Types of Alternatives
When identifying the compensatory restoration components of the
restoration alternatives, trustees must first consider compensatory
restoration actions that provide services of the same type and quality
as those lost. This is the preferred approach to identifying
compensatory restoration actions. If, however, such actions are
infeasible, or too few in number to provide a reasonable range of
alternatives, trustees may then include other compensatory restoration
actions among the alternatives, so long as the actions will provide
services of at least comparable type and quality as those lost, in the
judgment of the trustees.
b. Scaling Compensatory Restoration Actions
To ensure that a compensatory restoration action will appropriately
compensate for the service loss, trustees must scale the action. The
approaches that may be used to assess the appropriate scale of a
compensatory restoration action include the service-to-service approach
and the valuation approach.
i. Service-to-Service Approach
Under the service-to-service approach to scaling, the appropriate
quantity of replacement services is determined by obtaining equivalency
between lost and replacement services after discounting appropriately.
Trustees must use the service-to-service approach for alternatives that
provide services that are of the same type and quality, and are subject
to comparable resource scarcity and demand conditions as those lost.
The third criterion is being proposed to address situations where the
public will no longer have the same level of need for services of the
same type and quality as those lost by the time the compensatory
restoration alternative could be implemented. In such situations, a
strict equivalency between quantities of lost and replacement services
may not adequately compensate the public. NOAA solicits comment on the
proposed criteria for use of the service-to-service approach.
Under the service-to-service approach, NOAA recommends use of
habitat equivalency analysis when lost resource services are primarily
of indirect human use, for example, species habitat or biological
resources. (See Appendix D at the end of this preamble for a
description of habitat equivalency analysis.) If lost services are
human uses, for example recreational services, then a behavioral model
of human use may be used to determine the scale of project necessary to
attract the appropriate level of human uses. For example, if the
interim lost services are lost recreational beach days, then the
restoration alternative may be designed to provide the requisite number
of recreational beach days by, perhaps, improving access to existing
public beaches.
NOAA is interested in receiving comments on these suggested methods
as well as any additional methods that might be appropriate for use
with the service-to-service approach.
ii. Valuation Approach
In situations where trustees must consider alternatives that
provide services that are of a different type or quality, or are
subject to non-comparable resource scarcity or demand conditions than
those services lost, trustees may use the valuation approach to
scaling.
The valuation approach requires that trustees determine the amount
of services that must be provided to produce the same value lost to the
public. The approach relies on the idea that lost value can be
determined using one of a variety of possible units of exchange,
including units of resource services or dollars. The valuation approach
requires that the value of lost services be measured explicitly and
that the compensatory restoration alternative provide services of
equivalent value to the public. To properly scale the compensatory
restoration alternative, the trustee might have to measure the values
of varying sizes of the compensatory restoration alternative to
determine the size of a project that will replace the value of lost
services. For proper comparison, all values lost or provided over time
should be converted into present value terms by discounting.
Measuring the value of lost services in terms of units of
replacement services rather than dollars may be the most direct
approach to scaling the compensatory restoration alternative. Although
such procedures are currently not well-defined in the literature, it is
likely that the method would use a form of conjoint analysis. Other
valuation methods include the travel cost method, factor income
approach, hedonic price models, models of market supply and demand, and
contingent valuation. (See Appendix D at the end of this preamble for
descriptions of these methods.) Trustees are not limited to these
methods, and may use any reliable method suitable for calculating
interim lost value. Where the circumstances are such that a site-
specific application of one of these valuation methods does not meet
the reasonable cost criterion, the trustees may consider estimating
interim lost value using benefits transfer. The choice of approaches in
a particular context will depend upon the types of injuries and the
type of services provided by the compensatory restoration alternative.
Trustees should consider using similar methods for measuring the
value of the lost services and the value of the services provided by
the compensatory restoration alternatives. If different valuation
methods are used, then trustees should take steps to ensure that the
variation in methods does not introduce bias. NOAA seeks comment on
possible approaches for assessing and adjusting for biases that may
occur in this situation.
If valuation of the services provided by an alternative could not,
in the judgment of the trustees, be performed consistent with the
definition of reasonable assessment costs, the trustees may calculate
the value of the lost services and then select the scale of a
restoration alternative that has a cost equivalent to the lost value.
The responsible parties will have the option of requesting that the
trustees value the alternative, if the responsible parties, within a
timeframe acceptable to the trustees, advance the costs of doing so and
agree not to challenge the reasonableness of the costs of performing
such valuation.
Because the reformulated unified restoration approach envisions a
fundamentally different role for valuation methods from what was
contained in the January 1994 proposed rule, NOAA has not included
standards for utilization of such methods in today's proposed rule.
However, NOAA is still considering, and seeks comment on, whether
standards for the use of valuation methods, including contingent
valuation, should be included in the final rule (or in accompanying
guidance documents),
[[Page 39817]]
and, if so, what level of guidance would be appropriate.
c. Treatment of Uncertainty and Discounting
When scaling a compensatory restoration action, trustees should
address the uncertainties associated with the predicted consequences of
restoration projects and must discount to the present the interim lost
services, or the value of interim lost services due to the injury as
well as the gain in services or the gain in service value from the
restoration project. The reference date for the discounting calculation
is the date at which the demand is presented.
The choice of an appropriate discount rate is linked to the
treatment of uncertainties associated with the losses due to the injury
and the gains from the compensatory restoration alternative.
NOAA recommends that, where feasible, the trustees should use risk-
adjusted measures of losses and gains, in conjunction with a riskless
rate of discount serving as a proxy for the consumer rate of time
preference. Alternatively, if the streams of losses and gains cannot be
adequately adjusted for risks, then NOAA recommends use of a discount
rate that incorporates a suitable risk adjustment to the riskless rate.
The periods of losses due to injury and, particularly, the period
of gains from compensatory restoration projects potentially extend far
into the future. Because the rates of return on financial instruments
vary substantially through time and future rates can be predicted
imperfectly, NOAA recommends use of a long-term average of the rates of
return from the selected instrument. The analysis will be conducted
either in nominal terms (i.e., in dollars of the year in which the
losses or gains are incurred) or in real terms (e.g., in units of
services, or in dollars of a specified base year). The nominal U.S.
Treasury rate shall be used if the components of the claim are
denominated in nominal terms. Otherwise, if components of the claim are
denominated in real terms (of the discounting reference year), then
real U. S. Treasury rates are to be used. To calculate the real rates,
trustees should use an appropriate price index to remove expected
inflation from the appropriate nominal U.S. Treasury rate.
NOAA seeks comment on various issues related to discounting the
streams of consumer losses and gains. For what uncertainties is it most
important for trustees to develop adjustments? What procedures are
suitable for adjusting the streams of losses and gains for uncertainty?
What is the appropriate price index to employ to adjust nominal
discount rates for inflation (e.g., Gross Domestic Product deflator, or
Consumer Price Index)? Should the discount rate be an after-tax rate,
rather than a pre-tax rate? Is a long-term average of the rates of the
selected instrument the best predictor of future rates? If so, over
what period should the average be calculated?
U.S. Treasury bill and 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 and
the Consumer 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 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).
C. Restoration Alternatives for Simplified Assessment Procedures
Simplified assessment procedures, described in Sec. 990.54(d) of
the proposed rule, provide different types of results or output that
can be used in designing and scaling incident-specific restoration
actions. For example, when using the Type A model, trustees have
several alternative approaches: (1) A restoration plan may be developed
to address the injuries predicted by the model; (2) the restoration
actions predicted by the Type A model may be implemented; or (3) the
lost values resulting from a model run may be used to identify the
scale of a project. As discussed below, the proposed rule also allows
trustees to consider using a Regional Restoration Plan instead of
developing an incident-specific restoration plan when they have used
simplified assessment procedures.
D. Evaluation of Restoration Alternatives
1. General
Once trustees have developed the restoration alternatives, they
must evaluate those alternatives. This evaluation is based on the:
(a) Extent to which each alternative can return the injured natural
resources and services to baseline and make the environment and public
whole for interim service losses;
(b) Extent to which each alternative improves the rate of recovery;
(c) Extent to which each alternative will avoid additional injury;
(d) Level of uncertainty in the success of each alternative;
(e) Extent to which each alternative benefits more than one natural
resource and/or service;
(f) Cost of each alternative;
(g) Effects of each alternative on public health and safety, and
the environment; and
(h) Whether any alternative violates any laws or regulations.
Based on evaluation of the listed factors, trustees select a preferred
restoration alternative. If there are two or more preferred
alternatives, trustees must select the most cost-effective alternative.
2. Other Considerations
a. Pilot Restoration Studies
If the range of restoration alternatives under consideration is
limited or poorly developed, trustees may implement pilot studies.
b. Cost Benefit Analysis
When selecting a restoration alternative, trustees should consider
the relationship between costs and benefits. However, reducing the
selection process to a strict comparison of restoration costs to
monetized natural resource values is not required and may not be
appropriate. Instead, the proposed rule would require trustees to
evaluate each alternative according to a number of factors, identify a
preferred alternative, select the most cost-effective alternative if
there is more than one preferred alternative, and provide the public
and responsible parties with an opportunity to review and comment on
the trustees' selection. NOAA believes this approach provides adequate
protection against selection of an inappropriately costly alternative.
NOAA seeks comment on alternative approaches to the restoration
selection process.
E. Draft Restoration Plan
1. Purpose
After selecting a restoration alternative, trustees must prepare a
Draft Restoration Plan. Development of a Draft Restoration Plan
provides a vehicle for: (a) Informing the affected and interested
public of the results of the trustees' analyses and decisions, and
encouraging public comments; and (b) performing expert peer review,
when comments are solicited from various professional communities or
other knowledgeable persons.
2. Contents
A Draft Restoration Plan should reflect the restoration planning
process
[[Page 39818]]
as provided above and must, at a minimum, contain: (a) A summary of
injury assessment procedures and methods used; (b) a description of the
nature, degree, and spatial/temporal extent of injuries to natural
resources and/or services resulting from the incident; (c) the goals
and objectives of restoration; (d) the range of restoration
alternatives considered and a discussion of how such alternatives were
identified and developed; (e) a discussion of the trustees' evaluation
of the restoration alternatives; (f) a description of a monitoring plan
for documenting restoration effectiveness and the need for corrective
action and performance criteria for judging the success and completion
of restoration and the need for corrective action; and (g) a
description of the involvement of the responsible parties in the
assessment process, and proposed involvement in the restoration
process.
The types of parameters that should be addressed in the monitoring
plan may include: (1) Duration; (2) frequency of monitoring needed to
gauge progress and success; (3) the level of sampling needed to detect
success or the need for corrective action; and (4) whether monitoring
of a control or reference site is needed to determine progress and
success.
Performance criteria include structural, functional, temporal, and
other demonstrable goals that the trustees should determine with
respect to all restoration actions. For example, an agreement to create
new intertidal marsh habitat as compensation for marsh impacted by oil
could be described by performance criteria including the number of
acres to be created, the location, the elevation of new habitat, the
species to be planted and details for planting such as density, and the
timeframe in which identifiable stages of the project should be
completed.
3. Public Review and Comment
The information provided in the Draft Restoration Plan must be
adequate to allow the public to objectively assess the injuries
resulting from the incident and restoration actions being considered to
remedy those injuries. The Draft Restoration Plan must be made
available for at least a thirty (30) calendar day public review and
comment period.
The type of notice, review, and comment procedures may vary
depending on the nature and scale of restoration actions proposed. For
instance, notice may be accomplished through the Federal Register,
local newspapers, state press releases, etc., and review and comment
may be facilitated through written responses, advisory committees,
public meetings, etc.
F. Final Restoration Plan
After reviewing public comments on the Draft Restoration Plan,
trustees must develop a Final Restoration Plan. As part of the Final
Restoration Plan, trustees must consider and respond to all comments on
the Draft Restoration Plan. In response to the comments, the trustees
may need to: (1) Modify the restoration alternatives being considered;
(2) develop and evaluate alternatives that have not been given serious
consideration by the trustees; (3) supplement, improve, or modify the
analyses; (4) make factual corrections; or (5) explain why the comments
do not warrant further trustee response, citing the reasons to support
the trustee position, and possibly indicate the circumstances that
would trigger reappraisal or further response. In the Final Restoration
Plan, trustees indicate the restoration alternatives that will be
implemented and include the information in the Draft Restoration Plan.
The format of the Final Restoration Plan, which essentially follows
that of the Draft Restoration Plan, must clearly indicate any changes
to the Draft Restoration Plan.
If trustees plan to make significant changes to the Draft
Restoration Plan in response to comments, revisions will be documented
for public notice along with issuance of the Final Restoration Plan.
G. Use of Regional Restoration Plans
If trustees used a simplified assessment procedure, the proposed
rule allows them to consider using a Regional Restoration Plan instead
of developing an incident-specific restoration plan. Under the proposed
rule, trustees may use an existing Regional Restoration Plan provided
that the Plan:
(i) Was developed subject to public review and comment; and
(ii) Addresses and is currently relevant to the same or comparable
natural resources and/or services as those identified during injury
assessment as having been injured.
If these conditions are met, trustees may present the responsible
parties with a demand for the damages calculated by the simplified
assessment procedure and use the recovered sums to implement the
Regional Restoration Plan.
If there is not an existing Regional Restoration Plan that meets
these conditions and the information provided by the simplified
assessment procedure does not support development of an incident-
specific restoration plan, trustees may present the responsible parties
with a demand for the damages calculated by the simplified assessment
procedure and place the recovered funds into an account with other
similar recoveries, until such time that sufficient funds to develop
plan and implement a new Regional Restoration Plan are collected.
Recoveries may only be commingled in this manner where natural resource
and/or service injuries were similar for the incidents represented by
pooled funds, and where the incidents were within the same region (i.e.
ecosystem or watershed). New Regional Restoration Plans would then be
developed subject to public review and comment.
Trustees should develop criteria and procedures governing pooling
of funds and obligating portions of damages from simplified procedures
to planning costs. Such criteria should address: (1) The length of time
money should be maintained in an account before developing and
implementing Regional Restoration Plans; and (2) suggested maximum
percentages of recoveries that may be used for developing Regional
Restoration Plans.
NOAA requests comments on the concepts and specific guidelines for
pooling recoveries from simplified assessments and use of those monies.
If trustees use a Regional Restoration Plan, they must prepare a
Notice of Intent to Use a Regional Restoration Plan. The Notice must
include:
(1) A description of the nature, degree, and spatial/temporal
extent of injuries to natural resources and/or services resulting from
the incident;
(2) A description of the existing Regional Restoration Plan and an
explanation of how the conditions for use of a Regional Restoration
Plan are met; or a description of the anticipated process for
developing a new Regional Restoration Plan and an explanation of why
the information provided by the simplified assessment procedure does
not support development of an incident-specific restoration plan; and
(3) Identification of the damage amount sought and the calculation
of that amount.
Trustees must make a copy of the Notice publicly available.
Subpart F--Restoration Implementation Phase
I. Introduction
At the completion of the Restoration Planning Phase, the trustees
must: (a) Close the administrative record that
[[Page 39819]]
incorporates the Restoration Planning Phase and open a new
administrative record for the Restoration Implementation Phase; (b)
present a demand for restoration costs or implementation to the
responsible parties; (c) establish an account to receive any payments
of sums to be received from the responsible parties; and (d) implement
restoration. Additional actions that could occur during the Restoration
Implementation Phase include litigating a claim for damages where the
responsible parties refuse to pay for or implement restoration on
receipt of the trustees' demand, or presenting a claim for damages to
the Oil Spill Liability Trust Fund, so that restoration can be
implemented.
II. Administrative Record
Once a Final Restoration Plan or Notice of Intent to Use a Regional
Restoration Plan has been issued, the administrative record of the
Restoration Planning Phase must be closed. Except as noted below, no
additional documents will be placed in the record. The closed record
will constitute the body of information supporting the trustees'
decisions through restoration planning.
Once the record is closed, trustees may only add documents that:
(a) Are offered by an interested party that did not receive actual
or constructive notice of the Draft Restoration Plan and the
opportunity to comment on the Plan;
(b) Do not duplicate information already contained in the
administrative record; and
(c) Raise significant issues regarding the Final Restoration Plan.
For practical reasons, it is likely that trustees will need to open
and maintain an additional administrative record to document
implementation of restoration. This record should document all
Restoration Implementation Phase decisions, actions, and expenditures,
including any modifications made to the Final Restoration Plan. This
record is necessary to keep the public informed and potentially for use
in any enforcement actions, such as seeking additional work from the
responsible parties to comply with the restoration plan and
implementing agreements.
The administrative record for restoration implementation should
follow the same guidance for opening and maintaining the previous
record, and for its availability.
III. Presenting a Demand for Damages to the Responsible Parties
If the trustees and responsible parties have successfully
implemented a cooperative restoration planning process, the responsible
parties will have thorough knowledge of the trustees' preferred
restoration actions and associated costs. In the best circumstances,
the responsible parties will already have entered into an enforceable
agreement to either pay the costs associated with implementing the
Final Restoration Plan, or to implement the Plan according to trustee
performance criteria and with trustee oversight. Any such agreements
with the responsible parties will have been described in the Draft and
Final Restoration Plans reviewed by the public.
However, where a cooperative relationship with responsible parties
has not been achieved, the trustees must follow some specific statutory
requirements to recover natural resource damages, as described below.
After development of a Final Restoration Plan or a Notice of Intent
to Use a Regional Restoration Plan, the trustees must present a demand
in writing asking the responsible parties either to:
(a) Implement the Final Restoration Plan or portion of a Regional
Restoration Plan subject to trustee oversight and reimburse the
trustees for their assessment and oversight costs; or
(b) Advance to the trustees a specified sum representing all direct
and indirect costs associated with developing and implementing the
Final Restoration Plan or some portion of a Regional Restoration Plan.
The demand must also include: (a) Identification of the incident
from which the claim arises; (b) identification of the trustees
asserting the claim; (c) a brief description of the injuries for which
the claim is being brought; (d) the index to the record; (e) the Final
Restoration Plan or Notice of Intent to Use a Regional Restoration
Plan; and (f) a request for reimbursement of:
(i) Reasonable assessment costs;
(ii) The cost, if any, of conducting emergency restoration; and
(iii) Interest on the amounts recoverable under OPA section 1005,
which provides for prejudgment and post-judgment interest to be paid at
a commercial paper rate, starting from 30 calendar days from the date a
demand is presented until the date the claim is paid.
IV. Discounting and Compounding the Components of the Claim
A. General
Discounting and compounding are necessary for the trustees to be
able to present a claim for a ``sum certain.'' The reference date for
the discounting and compounding calculations is the date at which the
demand is presented. Trustees must discount, or compound, the two
components of the claim: (1) Future restoration costs; and (2) damage
assessment and emergency restoration costs already incurred.
NOAA recommends that trustees use the U.S. Treasury borrowing rate
on marketable securities of comparable maturity to the period of
analysis for both calculations, with some qualifications noted below.
Alternatively, for state or Indian tribal claims for past damage
assessment and restoration costs, the state or Indian tribe may use the
state or Indian tribal borrowing rate on marketable securities. The
analysis should be conducted either in terms of nominal values
(denominated in dollars of the year in which the losses or gains are
incurred) or in constant dollars of a specified base year. For
compounding forward past emergency restoration and assessment costs, it
seems more straightforward to employ the nominal Treasury rate as the
discount rate and to represent the costs in nominal terms, since the
nominal interest is observed and past costs are likely to be
denominated in nominal terms. Future restoration costs can be adjusted
for inflation using an appropriate inflation index for the major
categories of costs.
B. Estimated Future Restoration Costs
Most restoration projects will be carried out over a period of
years. If funds are insufficient to cover the full costs of
restoration, including post-construction maintenance and monitoring
operations, natural resource recovery will be incomplete, and the
public will be deprived of full compensation for the injuries. NOAA
recommends that trustees use the nominal U.S. Treasury rate for
marketable securities of comparable maturity to the period of analysis,
when this rate of return is available to the trustees for investment of
settlement monies. To denominate the future restoration costs in
nominal terms, the trustees should employ the indices of projected
inflation appropriate to the major components of the restoration costs
(e.g., construction price indices for construction costs; the federal
employee wage index for trustee monitoring costs).
[[Page 39820]]
If legal and/or institutional constraints prevent investment of
settlement monies yielding the U.S. Treasury rate for marketable
securities of comparable maturity to the period of analysis, then it is
incumbent upon the trustees to structure the 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.
If the settlement is structured so that the responsible party
carries out the restoration projects, the trustee restoration costs to
be discounted will be substantially reduced, but not eliminated because
trustee monitoring costs will still be included in the claim.
C. Past Assessment and Emergency Restoration Costs
Damage assessment and emergency restoration costs may have been
accruing from the time of the incident. To calculate the present value
of these costs at the time the demand is presented to the responsible
parties, the trustees will compound forward the costs already incurred.
Because the rate of interest employed as the discount rate for past
costs incurred should reflect the opportunity cost of the money spent,
NOAA suggests that the trustees use the actual U.S. Treasury rate for
marketable securities of comparable maturity to the period of analysis
for compounding this component of the claim. NOAA acknowledges that, at
the discretion of the trustees, a state or Indian tribal borrowing rate
may be used to compound the state or Indian tribal component of past
costs. Where the costs are denominated in dollars of the year in which
they were incurred (i.e., in nominal terms), the nominal interest rate
should be employed.
D. Sources of Data
U.S. Treasury bill and 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 and
the Consumer 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 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).
V. Uncompensated Claims
If the responsible parties deny all liability for the claim or fail
to settle the claim embodied in the demand within ninety (90) calendar
days after they are presented with the demand, trustees may elect to
commence an action in court against the responsible parties or
guarantors, or to present the uncompensated claim to the Oil Spill
Liability Trust Fund. Thus, delivery of the demand should be made in a
manner that establishes the date of receipt by the responsible parties.
Judicial actions and claims must be filed within three years after
the Final Restoration Plan or Notice of Intent to Use a Regional
Restoration Plan is made publicly available, as provided in the statute
of limitations for natural resource damages under OPA (33 U.S.C.
2717(f)(1)(B) and 2712(h)(2)).
VI. Accounts
OPA section 1006(f) requires that damages recovered by trustees be
retained, without further appropriation, in a revolving trust account.
Sums recovered for past assessment costs and emergency restoration
costs may be used to reimburse the trustees. All other sums must be
used to implement the Final Restoration Plan, implement an existing
Regional Restoration Plan, or develop and implement a new Regional
Restoration Plan.
Where multiple trustees are involved in a recovery, trustees may
wish to establish a joint account. One acceptable mechanism would be an
account under the registry of the applicable federal court when there
is a joint recovery involving federal and non-federal trustees. The
joint account should be managed by the trustees through an enforceable
written agreement that specifies the parties authorized to endorse
expenditures out of the account, and the agreed-upon procedures and
criteria for such expenditures.
Although a joint trustee account may be the preferred approach,
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 incident-specific or funds that allow deposit of natural
resource damages and expenditure in accordance with the limitations set
forth in OPA.
Trustees may establish escrow accounts or any other investment
accounts unless specifically prohibited by law. Funds in such accounts
must only be used as specified in OPA section 1006(f).
Trustees must maintain appropriate accounting and reporting methods
to keep track of the use of sums recovered. Brief reports on the status
of the sums recovered and expenditures for particular incidents should
be reported in the record for the Restoration Implementation Phase.
Any sums remaining in an account established under this section
that are not used either to reimburse trustees for past assessment and
emergency restoration costs or to implement restoration must be
deposited in the Oil Spill Liability Trust Fund.
VII. Implementation of the Restoration Plan
A. General
As discussed throughout this proposed rule, the Final Restoration
Plan may be implemented by the trustees, or by the responsible parties
with trustee oversight. In either case, several common steps will
characterize the Restoration Implementation Phase, including: (1)
establishment of a trustee committee and/or MOU; (2) development of
more detailed workplans for the conduct of restoration actions; (3)
monitoring and oversight; and (4) evaluation of restoration success or
need for corrective actions.
B. Trustee Committee and/or MOU
In many instances, it is likely that a trustee committee and/or MOU
will have governed trustee involvement through the Restoration Planning
Phase. However, it is critical that these agreements extend through the
Restoration Implementation Phase, or that new agreements or committees
are formed for the restoration implementation. At a minimum,
representatives of each participating trustee agency should be
appointed to an oversight committee. Functions of such a committee may
include: (1) Authorizing expenditures from a joint account; (2)
participating in monitoring of restoration actions; (3) evaluating
performance criteria for restoration actions; and (4) making the
determination that the goals and objectives of the Final Restoration
Plan have been achieved or that corrective actions need to be pursued.
[[Page 39821]]
C. Detailed Workplans
Depending on the incident, detailed workplans for accomplishing
restoration goals and objectives may or may not have been developed
during the Restoration Planning Phase. Clearly, as many details to
outline the restoration expectations, performance criteria, timelines,
criteria for success, etc., should be included in the Final Restoration
Plan and in agreements with the responsible parties as are practicable
to determine prior to restoration implementation. Performance criteria
are essential for meaningful trustee monitoring and oversight of
restoration projects.
D. Monitoring and Oversight
Reasonable monitoring costs are included in recoverable damages. A
well-designed and executed monitoring plan is required to assess
progress toward the stated goals and objectives of a restoration plan.
Reasonable monitoring costs cover those activities necessary to gauge
the progress, performance, and success of the restoration actions, and
not to generate purely scientific information.
E. Restoration Success and Corrective Actions
Restoration plans, particularly those including agreements for
responsible parties to implement restoration, must identify criteria
against which success and completion of restoration actions will be
judged. Thus, trustees should, at a minimum, determine: (a) What
criteria will constitute success, such that responsible parties are
relieved of responsibility for further restoration actions; and (b)
what criteria will necessitate corrective actions in order to comply
with the terms of a restoration or settlement agreement. For example,
in the intertidal marsh creation example used above, success may be
defined as survival of planted marsh grass at a rate of 80% vegetative
cover two years after completion of planting.
In some cases, pilot studies will lessen the need for corrective
measures. In other cases, settlement agreements can include reopeners
to deal with specific points of uncertainty, for instance, for
significant injuries that could not be determined and/or quantified at
the time of a settlement. Another possibility is for the responsible
parties to deposit an agreed-upon amount of money in an escrow account
to cover future corrective actions that could not be fully anticipated
at the time of the settlement. These funds would then be used for
future actions once defined, or revert to the responsible parties if
not needed. In most cases, trustees should consider including a
mechanism to deliberate the need for and type of corrective actions in
a settlement agreement where the types of contingencies that suggest
the need for corrective actions cannot be completely foreseen.
In all cases, the scope and scale of corrective actions must be
determined relative to the restoration goals and objectives set out in
the Final Restoration Plan. In addition, trustees must recognize that
circumstances well beyond the control of any of the parties may not be
the basis of requiring corrective actions, such as natural occurrences
that would meet an ``Act of God'' standard.
General Summary of and Response to Comments on the January 1994
Proposed Rule
NOAA received numerous comments on the January 1994 proposed rule.
NOAA appreciates the time and effort expended by the commenters.
Commenters raised many thought-provoking points that have led NOAA to
reconsider the overall approach of the rule. The bulk of the comments
fell into eight general categories.
First, NOAA received many comments about the need to keep natural
resource damage assessments focused on the ultimate goal of expeditious
restoration rather than the abstract study of injuries, calculation of
monetary damage figures, or time-consuming and expensive litigation.
Today's proposed rule is designed to place even greater emphasis on
early restoration planning.
Second, many commenters addressed the standards for calculating
compensable value in the January 1994 proposed rule. Today's proposed
rule eliminates the need for the determination of compensable values as
a separate component of a damage claim. The proposed rule does not
render the value of natural resources irrelevant; however, it does
fundamentally change the role of valuation in assessments. Valuation is
now used to determine the scale of appropriate restoration actions
rather than a monetary damage figure.
Third, commenters raised concerns about coordination among trustees
and with responsible parties and the level of trustee discretion
afforded under the proposed January 1994 rule. Today's proposed rule
provides for a public planning process designed to ensure that all
interested parties have an opportunity for involvement and that the
trustees' decisionmaking process is subject to public scrutiny. The
proposed rule also redefines ``reasonable assessment costs'' to provide
greater clarification of when trustees' assessment activities are
appropriate.
Fourth, NOAA received voluminous comments on the various assessment
procedures. In regard to the compensation formulas, as discussed in
Appendix C to this preamble, NOAA has decided to reserve the
compensation formulas for now. Some commenters expressed confusion over
the distinction between expedited and comprehensive damage assessments.
The proposed rule no longer categorizes assessments as expedited or
comprehensive and instead authorizes trustees to determine appropriate
assessment methods on an incident-specific basis from a range of
procedures including simplified methods to complex field studies.
Fifth, other commenters raised concerns about use of Regional
Restoration Plans. The proposed rule provides additional guidance on
when and how Regional Restoration Plans may be used.
Sixth, NOAA received many comments on the standards for determining
injury. Under today's proposed rule, the definition of ``injury'' has
been modified to require demonstration of a measurable or observable
adverse change. The proposed rule also provides new guidance on
determining injury, including guidance on selecting injury studies that
provide information that is relevant for restoration planning.
Seventh, NOAA received mixed comments on the provisions in the
January 1994 proposed rule concerning administrative record review.
This proposed rule continues to require development of an open
administrative record containing documents relied upon by trustees in
assessing and selecting restoration actions appropriate for particular
incidents, including relevant comments and submissions received from
responsible parties and other interested persons. Although this
proposed rule is silent on the standard of review, NOAA continues to
expect that courts will perform review on the administrative record.
Finally, many commenters expressed concern about the volume of
guidance on preassessment activities contained in the January 1994
proposed rule. Today's proposed rule includes a streamlined
Preassessment Phase.
Due to the extent of the changes in today's proposed rule, many of
which render earlier comments inapplicable, NOAA is not providing a
detailed treatment of all comments received. Instead, the proposed rule
and preamble embody the response to the comments
[[Page 39822]]
received. After reviewing today's proposed rule, commenters should
resubmit any comments that they think are still applicable, as well as
provide any new comments.
Bibliography
EIS-Compatible Restoration Plans
Entrix, Inc., Pacific Estuarine Research Laboratory (PERL), and
Philip Williams and Associates, Ltd. (PWA). 1991. Tijuana Estuary
Tidal Restoration Program. Draft Environmental Impact Report/
Environmental Impact Statement.
California Coastal Conservancy (SCC) and U.S. Fish and Wildlife
Service, Lead Agencies. SCC, Oakland. Vol I-III]; The Klamath River
Basin Fisheries Task Force (1991) [The Klamath River Basin Fisheries
Task Force. 1991. Long Range Plan for the Klamath River Basin
Conservation Area Fishery Restoration Program. U.S. Fish and
Wildlife Service, Klamath River Fishery Resource Office, Yureka,
CA].
Exxon Valdez Oil Spill Trustee Council (1994 a&b) [Exxon Valdez
Oil Spill Trustee Council. 1994 (a) (June). Draft Environmental
Impact Statement for the Exxon Valdez Oil Spill Restoration Plan.
Exxon Valdez Oil Spill Trustee Council, Anchorage, AK Exxon Valdez
Oil Spill Trustee Council. 1994 (b) (September). Final Environmental
Impact Statement for the Exxon Valdez Oil Spill Restoration Plan.
Exxon Valdez Oil Spill Trustee Council, Anchorage, AK]; Final
Environmental Impact Statement for the Management Plan of Habitat
for Late-Successional and Old-Growth Forest Related Species Within
the Range of the Northern Spotted Owl (1994).
Regional Restoration Plans
The National Estuary Program (NEP), established by Congress in
1987, has developed Comprehensive Conservation and Management Plans
(CCMP) to protect and restore ``nationally significant'' estuaries
(U.S. EPA. 1992. The National Estuary Program after Four Years, A
Report to Congress. U.S. Environmental Protection Agency, Office of
Water. EPA 503/9-92/007).
The State of Florida enacted the Surface Water Improvement and
Management (SWIM) Act to develop plans that will address restoration
of significant watersheds within its borders (SWIM Plan. 1993. Lower
St. Johns River Basin. St. Johns River Water Management District,
Palatka, FL; SWIM Plan. 1993. Lake Apopka. St. Johns River Water
Management District, Palatka, FL; SWIM Plan. 1991. SWIM Plan for the
Upper Oklawaha River Basin. St. Johns River Water Management
District, Palatka, FL; Adamus, C. 1991. SWIM Priority Ranking. St.
Johns River Water Management District, Palatka, FL). Numerous other
federal, state, tribal, and community restoration and conservation
programs and plans exist as well.
Gosselink and Lee (1987) and Omernik (1987) outline some
geographically-based approaches for regional restoration plans
(Gosselink, J.G. and L.E. Lee. 1989. Cumulative Impact Assessment in
Bottomland Hardwood Forests. Wetlands 9: 83-174.
Omernik, J.M. 1987. Ecoregions of the Coterminous United States.
Ann. Assoc. Am. Geogr. 77:118-125)
Guidance Documents
DOI. 1987. Measuring Damages to Coastal and Marine Natural
Resources: Concepts and Data Relevant to CERCLA Type A Damage
Assessments (NRDAM/CME technical document). U.S. Department of the
Interior, Office of Environmental Policy and Compliance, Washington,
D.C., DOI-14-01-0001-85-C-20, Vol I-II.
DOI. 1993. The CERCLA Type A Natural Resource Damage Assessment
Model for the Great Lakes Environments (NRDAM/GLE). U.S. Department
of the Interior, Office of Environmental Policy and Compliance,
Washington, D.C., Vol I-III.
DOI. 1994. The CERCLA Type A Natural Resource Damage Assessment
Model for Coastal and Marine Environments (NRDAM/CME). U.S.
Department of the Interior, Office of Environmental Policy and
Compliance, Washington, D.C., Vol I-VI.
Michel, J. and E. Reinharz. 1994. Preassessment Phase Guidance
Document. National Oceanic and Atmospheric Administration, Office of
General Counsel Natural Resources, Damage Assessment Regulations
Team, Silver Spring, MD.
NOAA. 1993. Restoration Guidance Document for Natural Resource
Injury Resulting from a Discharge of Oil. National Oceanic and
Atmospheric Administration, Office of General Counsel Natural
Resources, Damage Assessment Regulations Team, Silver Spring, MD.
NOAA. 1995. Specifications for Use of the NRDAM/CME Version 2.2
to Generate: Compensation Formula for Natural Resource Damage
Assessments under OPA. National Oceanic and Atmospheric
Administration, Office of General Counsel Natural Resources, Damage
Assessment Regulations Team, Silver Spring, MD.
NOAA. 1995. Injury Guidance Document for Natural Resources and
Services under the Oil Pollution Act of 1990. National Oceanic and
Atmospheric Administration, Damage Assessment and Restoration
Program, Silver Spring, MD.
NOAA. 1995. NEPA Compliance in NRDA Guidance Document. National
Oceanic and Atmospheric Administration, Damage Assessment and
Restoration Program, Silver Spring, MD.
Appendix A--Comparison of Relevant OPA/NRDA and NEPA Components
----------------------------------------------------------------------------------------------------------------
OPA/NRDA process NEPA parallels
----------------------------------------------------------------------------------------------------------------
Facilitating Restoration
Facilitating the NEPA Process
Pre-incident planning
Regional restoration planning Programmatic EIS.
Cooperation and coordination Interagency cooperation.
Public participation
Public involvement.
Preassessment Phase Environmental Assessment
Procedural Components Procedural Components.
--Determine trustee jurisdiction
--Determine need for restoration planning --Need/purpose for restoration.
--Publish ``Notice of Intent to Conduct Restoration Planning'' --``Notice of Intent'' for NEPA scoping.
--Open administrative record --Open Analysis File/Planning Record.
Limited data collection
Emergency restoration actions --Emergency actions.
Restoration Planning Phase NEPA Process
Procedural Components Procedural Parallels.
--Injury Assessment Component (Injury Determination/ --NEPA scoping process begins.
Quantification)
--Restoration Planning Component
--Develop Draft Restoration Plan --Draft EIS.
--Public Review/Comment --Public Review/Comment.
--Develop Final Restoration Plan --Final EIS.
Range of injury assessment procedures (simplified to more --Affected Environment (before
detailed) restoration).
Range of restoration alternatives (primary/compensatory --Range of restoration alternatives
restoration; natural recovery/no action) (including proposed/no action) and
Environmental Consequences.
Evaluation of restoration alternatives
--Cost-benefit analysis.
[[Page 39823]]
Restoration Implementation Phase NEPA Process
Procedural Components Procedural Parallels.
Close Administrative Record for Restoration Planning Phase --Close original Analysis File/Planning
Record.
Opening administrative record for Restoration --Open second Analysis File.
Implementation Phase
Present Demand --``Record of Decision''.
Establish account for recoveries
Implement Final Restoration Plan (includes monitoring/ --Implement Final EIS.
corrective actions)
----------------------------------------------------------------------------------------------------------------
EIS = Environmental Impact Statement.
Appendix B--Considerations to Facilitate the Restoration Process
I. Pre-incident Planning
General
NOAA believes that commitment of time, funding, and personnel to
up-front planning prior to an incident will help ensure that the
NRDA process results in appropriate restoration plans. Thus,
trustees are encouraged to develop pre-incident plans.
Pre-incident Plan Contents
NOAA suggests that pre-incident plans:
(a) Identify natural resource assessment teams. The restoration
process needs a systematic, interdisciplinary approach to insure the
integrated use of science, economics, and law required in planning
and implementing restoration. Trustees are encouraged to identify
appropriately experienced personnel needed for natural resource
assessment teams at the area and regional levels.
Personnel required for natural resource assessment teams should
be appropriate to the scope and scale of the incident and natural
resources and/or services affected. For instance, for incidents with
complicated or long-term ecological impacts, the core team could
include a natural resource trustee coordinator, restoration expert,
resource biologist, environmental (petroleum) chemist, resource
economist, quality assurance specialist, data manager/sample
custodian, statistician, resource attorney, and administrative
support specialist. If at all possible, the team should not be ad
hoc; members should be knowledgeable about relevant statutes and
regulations, and be able to establish a working relationship with
the various parties likely to be involved in incidents.
(b) Establish trustee notification systems. Prompt notification
is essential for efficient and effective initiation of the
restoration process. Response personnel are required under the NCP
to notify trustees whenever natural resources under their
jurisdiction or management have been, or are likely to be, injured
or lost as a result of an incident involving oil.
Thus, each trustee should establish emergency notification
protocols so that the process can be initiated on a 24-hour basis.
Notification could be coordinated to minimize the number of calls
response personnel must make to the trustees. Notification protocols
are also needed within the trustee agencies so that appropriate
regional and local personnel can be informed of an incident. Area
and Regional Contingency Plans should include contact information
for each trustee and clear, unambiguous criteria for trustee
notification (e.g., all spills, spills over a certain size,
location, etc.).
(c) Identify likely support services. In many circumstances, the
trustees may require specialized contractor support. For example,
research vessels may be necessary for sample collection, or outside
experts may be necessary to design and conduct studies. If, as part
of pre-incident planning, the trustees can identify appropriate
support services and pursue contracting procedures that will
expedite incident-specific hiring of contractors, potentially
detrimental delays in the assessment process can be avoided during
actual incidents.
The types of support and expertise expected, as well as
potential contractor and expert names, should be identified as part
of pre-incident planning. Contracts should be established to allow
rapid acquisition of contractor services. Identified contractors may
even be called on to participate in pre-incident planning so that
all parties are familiar with the specific needs of the restoration
process.
Backup services should also be identified since the needs of
both response and natural resource activities can exceed even
regional capabilities.
(d) Identify natural resources and/or services at risk. In the
NCP, regional and area planning committees are responsible for the
identification of natural resources under their jurisdiction that
are potentially vulnerable to oil spill incidents for given
geographic areas. The plans may, for example, identify wetland
habitats near oil terminals or bird rookeries near shipping routes.
If there is an incident, the response teams will focus their efforts
on protection of these natural resources and/or services considered
most vulnerable.
Trustees should actively participate in such planning committees
to identify natural resources and/or services at risk. Further,
trustees should identify and evaluate possible assessment procedures
for these natural resources and/or services. In addition to
participating actively in regional and area planning activities,
trustees should develop a working relationship with response
agencies and officials.
(e) Identify available baseline and other relevant information.
Trustees should identify and catalogue sources of baseline
information as part of pre-incident planning, including seeking
input on sources of information. Types of information that may be
important include: (1) Petroleum hydrocarbon contamination in
indicator organisms; (2) species census and inventory; (3) baseline
data on species populations; (4) recreational use statistics; (5)
values for selected natural resources and/or services; and (6)
restoration measures applicable to injured natural resources and
services. Familiarity with the types of baseline information and
identification of data gaps and needs will allow the trustees to
formulate better study designs and restoration approaches;
(f) Establish data management systems. Data management and
record keeping are critical throughout the restoration process. Data
management systems may best be designed during pre-incident planning
to minimize the possibility of losing critical information during an
incident. For small incidents, this may be a relatively simple
filing system, but for large incidents, a centralized computer-based
system may be essential.
Trustees may decide to develop consistent data management
formats, such as field, laboratory and quality assurance forms, to
facilitate data management. At a minimum, data management should
address the: (1) Type and volume of data; (2) uses and users of the
data; (3) availability of existing data management structures; (4)
quality assurance needs; (5) reporting requirements; and (6) access
to the data. Data management should also include provisions for
distribution of updates for the trustees and others on a timely
basis; and
(g) Identify assessment funding issues and options. Funding of
trustee activities should be addressed during pre-incident planning
because of the need to initiate actions expeditiously after an
incident. Trustees may have several sources of potential funding,
the: (1) Responsible parties; (b) Oil Spill Liability Trust Fund;
and (c) agency funding. Trustees should consult the most up-to-date
guidance available from the U.S. Coast Guard for access to the Fund
and incorporate these procedures into pre-incident planning.
II. Regional Restoration Planning
General
OPA emphasizes making the public whole for injuries to natural
resource and/or services. Where practicable, incident-specific
restoration is the preferred alternative to compensate the public
for their losses. However, for many incidents, such incident-
[[Page 39824]]
specific planning may be impractical because, for instance, injuries
are not extensive or are short-term. For small incidents, incident-
specific planning costs may be high compared to the estimated
damages.
Thus, to achieve OPA's mandate to restore injured natural
resources and services regardless of the scope and scale of those
injuries, trustees are strongly encouraged to use or modify existing
restoration plans, or develop new regional restoration plans. Such
regional planning is appropriate so long as natural resources and/or
services comparable to those expected to be affected by an incident
are addressed in the plans.
Availability of Regional Restoration Plans
Trustees may rely on or adjust existing regional restoration
plans, so long as they have followed or can be modified to meet the
planning requirements under this proposed rule. Lacking existing
regional plans, trustees should seek to develop such plans. The
trustees may organize these plans based on such factors as geography
(e.g., ecosystems or watersheds), injuries anticipated from
incidents, or restoration alternatives.
Regional restoration plans must be developed or annotated in
such a way that trustees are able to justify linking the injuries
from a particular incident or set of incidents with a specific
restoration project or set of projects within the plan. This may be
facilitated by describing the types of injuries anticipated from oil
incidents to specific resources within a region, and describing
these injuries in terms of the types and importance of functions and
services, ecological and human use.
III. Coordination
General
Trustee coordination is crucial to an efficient and effective
assessment and restoration planning process because of the need to
address shared trustee interests in natural resources and/or
services affected by incidents. OPA prohibits double recovery of
damages, which strongly suggests that, where multiple trustees are
involved in an incident, they actively coordinate their activities
from as early in the process as possible, as well as through pre-
incident planning activities.
Incentives for Coordination
Incentives for cooperation include:
(a) Access to funding--requests for reimbursement of the costs
of initiating natural resource damage assessment from the Fund
require that trustees attempt to coordinate their assessments and
their funding requests;
(b) Conflict resolution--lack of coordination among the trustees
or with the responsible parties will likely produce an adversarial,
litigation-charged atmosphere. A joint trustee-responsible party
effort will help resolve legal, administrative and technical
conflicts; and
(c) Pooling limited resources--a joint trustee-responsible party
effort will allow the pooling of financial and human resources for
more efficient and effective restoration planning and
implementation.
Trustees will benefit greatly if coordination procedures can be
established well before an incident occurs. It must be emphasized
that all cooperative arrangements are subject to trustee oversight
because of their fiduciary responsibility to the public.
Agreements
Trustees should consider Memoranda of Understanding (MOU) to
formalize their cotrustee relationships. The MOU or similar
agreements may be prepared either in anticipation of an incident or
shortly after an incident. It is important that trustee agreements
address, at a minimum: the purpose of the agreement; trustee
participants; trustee organization; trustee responsibilities; and a
decisionmaking process.
Trustee agreements may serve as the foundation for building pre-
incident plans for natural resource activities as discussed above.
Of special importance is the selection of a Lead Administrative
Trustee (LAT).
Lead Administrative Trustee (LAT)
When conducting joint assessments under this rule, trustees must
designate a Lead Administrative Trustee (LAT). The LAT serves as the
contact for trustee interaction with response agencies, responsible
parties and the public, and provides general administrative support
to the restoration process.
This proposed rule also does not require that a LAT be a federal
agency. However, when more than one federal trustee(s) is involved,
the federal trustees must select a federal LAT (FLAT) if the
trustees wish to access the Fund to initiate natural resource
activities. In such cases, the FLAT will coordinate federal efforts
with the selected LAT. In addition, if a federal agency is
participating in the NRDA, NEPA is applicable, and a federal trustee
must serve as the lead agency for NEPA planning purposes. Where
appropriate, the trustees may designate co-LATs, consisting of a
federal LAT and the state, tribal, or foreign trustees.
A LAT should be selected by mutual agreement of the trustees. In
designating a LAT, trustees may want to consider such factors as:
Jurisdictional oversight; capability and willingness to address
trust resources; and sequence and duration of involvement in the
incident or similar incidents. Selection of a LAT should be made as
soon as practicable after notification of an incident.
Cotrustee Responsibilities
Cotrustees should be prepared to participate fully in the
restoration process by: Participating in or conducting those studies
or analyses for which they have special expertise or management
authority; make staff available to participate in other NRDA
activities, in particular, to represent the trustee in decisions
requiring cotrustee unanimity; and committing financial resources.
Each trustee may limit this participation based on the extent of
injury to its natural resources as well as legal and financial
constraints.
Coordination With Response Agencies
To the fullest extent practicable without interfering with
response activities, natural resource concerns should be integrated
with response activities before pursuing a NRDA; liability for
natural resource damages is limited to damages for injuries or
losses residual to the response phase, plus any injuries related to
the response. NOAA strongly encourages trustees to coordinate
natural resource injury assessment activities, such as gathering
ephemeral data related to an oil spill incident, with response
actions. Mechanisms to coordinate response and trustee data
gathering needs and processes may also be addressed in pre-incident
planning.
Coordination With the Responsible Parties
Under OPA, trustees have the responsibility to determine
appropriate actions to restore injured natural resources and
services. However, NOAA strongly encourages trustees to include the
responsible parties as full or partial participants in the
restoration process, whenever it can be achieved without compromise
of the trustees' statutory obligations to act on behalf of the
public trust. In determining whether, when and how to invite the
responsible parties to participate, trustees may consider factors
including, but not be limited to, the: willingness of the
responsible parties to participate; capability of the responsible
parties to participate (e.g., knowledge, expertise, and personnel);
and (c) willingness of the responsible parties to pay for the
restoration process.
Enforceable Agreements
Trustees are encouraged to enter into enforceable agreements
with cooperative responsible parties. Enforceable agreements may
have several benefits, including keeping trustees and responsible
parties dealing openly with each other, and reducing transaction
costs associated with separate assessment studies. Enforceable
agreements may address any or all parts of the restoration process,
but should contain, at a minimum, provisions for: the type and level
of participation, joint or independent; deliverables; funding;
public review; and termination.
NOAA encourages the trustees and responsible parties to conduct
joint assessment activities. For joint activities, enforceable
agreements should stipulate that the trustees and responsible
parties are: obligated to use jointly-collected data; barred from
collecting new or different data that challenges jointly-collected
data; obligated to document such jointly-collected data; barred from
challenging the scientific or technical adequacy of methods agreed
upon under the agreement; and encouraged to develop binding
stipulations regarding the interpretation and use of joint study
results.
Negotiations with the responsible parties should not prevent the
trustees from proceeding with their obligations to develop the
restoration plan in a timely fashion.
Coordination Among the Responsible Parties
While it is obviously not as easy to identify the mix of
potential responsible parties that will participate in a given
incident, there are issues that can be addressed in general terms by
the potential responsible parties in advance, that will enable them
to enter the cooperative restoration process more
[[Page 39825]]
efficiently and effectively. In an incident with a single well-
identified responsible party, the ability to assess the situation,
identify the appropriate course of action and most effectively
implement a cooperative response will be improved by pre-incident
planning. In an incident with multiple potential responsible
parties, the need for pre-incident planning is more apparent. In
this latter situation, the potential responsible parties need to
consider the efficacy of a cooperative restoration process, and the
terms under which they would consider entering into such a process.
Appendix C--Simplified Injury Assessment Procedures
I. Type A Models
The Department of the Interior (DOI) is responsible for
developing simplified ``Type A'' NRDA procedures under CERCLA. These
procedures were originally intended to cover both hazardous
substance releases as well as oil discharges. This proposed rule
would allow trustees to use any final Type A procedure incorporated
into DOI's regulations that addresses oil discharges, so long as the
conditions of an incident under OPA are sufficiently similar to the
conditions set forth at 43 CFR 11.33 for use of the Type A
procedures.
Only one final Type A procedure has been incorporated into DOI's
regulations. That procedure is a computer model applicable to minor
discharges in coastal and marine environments, known as the Natural
Resource Damage Assessment Model for Coastal and Marine Environments
(NRDAM/CME) Version 1.2.
The NRDAM/CME Version 1.2 is composed of three submodels that
predict the physical fate of the spilled substance, the biological
effects, and the economic damages caused by the incident. The
physical fates submodel database predicts the dispersion,
concentration, and eventual fate of the discharged oil. The model
accounts for mechanical removal of oil from the environment and the
normal weathering, degradation, and evaporation process. The
biological effects submodel uses the output from the physical fates
submodel, user-supplied information on habitat type and fishing
closures, and a regionally and seasonally specific database of
marine and estuarine fish, invertebrates, and birds to predict
biological injury. The economic damages submodel determines the
monetary compensation necessary for the lost use of the injured
resources. The economic database includes values for commercially
and recreationally harvested species, beach use, and bird watching.
DOI has issued a proposed rule to revise the NRDAM/CME Version
1.2 to comply with the decision in Colorado v. U.S. Department of
the Interior, 880 F.2d 481 (D.C. Cir. 1989) and as part of the
statutorily-mandated review and update of DOI's NRDA regulations. 59
FR 63300 (Dec. 8, 1994). The updated version of the model (Version
2.2) includes significantly more detailed data and more
sophisticated computer technology. The revised model also includes a
fourth submodel focusing on restoration costs. Interior has also
proposed a Type A procedure for minor discharges in the Great Lakes,
known as the Natural Resource Damage Assessment Model for Great
Lakes Environments (NRDAM/GLE) Version 1.31. 59 FR 40319 (August 8,
1994). When final, trustees may use the revised NRDAM/CME and the
NRDAM/GLE for assessments under OPA.
II. Compensation Formulas
As part of the proposed regulations, NOAA proposed a
compensation formula that could be used for small incidents in both
the estuarine and marine environments and the Great Lakes (and other
inland waters). The purpose of the formula is to readily estimate
impacts based on the amount of oil discharged and several simple
data inputs.
To maintain consistency with existing procedures and facilitate
public review of the estuarine and marine formula, the NRDAM/CME
Version 1.2 was used to estimate damages in a representative range
of hypothetical spill scenarios. Those results were the basis of the
estuarine and marine compensation formula. The basic algorithms of
the physical fates and biological submodels within the NRDAM/CME
Version 1.2 were deemed appropriate for this approach. However, to
use more recently-developed information, revised databases were
substituted for both the current biological and economic databases
in the NRDAM/CME Version 1.2. A restoration submodel was also added
to allow the use of average restoration costs to the extent
possible.
The inland waters compensation formula was proposed before DOI
published a proposed rule incorporating the NRDAM/GLE Version 1.31.
Therefore, NOAA used an earlier draft of the NRDAM/GLE to develop
the formula and provided that earlier version for public review with
the January 1994 proposed rule.
DOI is currently scheduled to issue the final revised NRDAM/CME
and the final NRDAM/GLE in early 1996. One option NOAA has
considered is to wait until those models are final and reissue the
compensation formulas. However, to repeat the formula development
after the models are final would require an additional three to five
months, thereby delaying interested parties' use of the formulas
until late 1996. Trustees need some simple method available for at
least an order of magnitude estimate of impacts that, ``on
average,'' are likely to result from relatively small discharges of
oil. Thus, a guidance document has been developed to provide an
interim tool for such a purpose.
The compensation formula guidance document is intended to
provide instructions on how, using the proposed NRDAM/CME Version
2.2 to recreate the spill scenarios used to develop the 1994
proposed estuarine/marine compensation formulas. This guidance will
allow interested parties to recreate the scenarios with the proposed
models, which are significantly different in some ways from the
draft models used to develop the proposed formulas. This approach
also will allow reviewers to comment on the possibility of NOAA
recreating the formulas once the NRDAM/CME and the NRDAM/GLE are
promulgated as final rules. This approach should allow an evaluation
of how the compensation formulas might change from that proposed in
January 1994 and provide approximate estimates of damages for
hypothetical spills based on the formula if it is developed using
the versions of the NRDAM/CME and NRDAM/GLE that are promulgated as
final rules in the future.
Using the data in the guidance document, trustees will have a
simplified, cost-effective tool to use in estimating expected
impacts of most discharges of oil. This information may prove to be
useful in early decisionmaking in a NRDA or in settlement
discussions. In order to use this guidance, trustees must have the
proposed computer models developed by DOI. Computer diskettes
containing the NRDAM/CME Version 2.2 and the NRDAM/GLE Version 1.31
can be obtained from the Office of Environmental Policy and
Compliance, Room 2340, Department of the Interior, 1849 C Street,
NW, Washington, DC 20240, telephone: (202) 208-3301.
Appendix D--Compensatory Restoration Scaling Methods
The following is a list of methods that are mentioned in this
preamble as potential approaches to scaling compensatory restoration
alternatives. The trustees are not limited to these methods and may
use any method that are deemed to be appropriate to the particular
situation.
A. Habitat Equivalency Analysis
This method may be used to scale restoration projects that
replace entire habitats that support multiple species or that
replace individual species that provide a variety of resource
services. To ensure that the scale of the compensatory restoration
project does not over- or under-compensate the public for injuries
incurred, the trustees must establish an equivalency between the
present value of the quantity of lost services and the present value
of the quantity of services provided by the compensatory restoration
project(s) over time.
B. 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
(thereby incurring higher travel costs) in order to recreate at more
highly valued sites. It is important to take into account the
availability and quality of substitute recreation sites. Multiple-
site models of recreational demand, such as the random utility
model, focus 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 has affected
quality at multiple sites. For this reason, multiple-site models of
recreational demand are preferred to single-site models, unless it
is feasible to include in the single-site model price and quality
information
[[Page 39826]]
about the relevant substitute sites (or there are no substitute sites).
If a single-site model is employed without full accounting for
substitutes, an appropriate adjustment should be made to the
estimate of trip value.
In cases where the change in resource services to be analyzed is
out of the range of data on actual travel behavior, trustees may
choose to collect contingent behavior data. Contingent behavior
refers to the behavior of users or potential users of a resource
service under hypothetical conditions presented to them in the
travel cost survey.
C. Factor Income Approach
This approach relies upon the production function model that
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). A
discharge may decrease the quality and/or quantity of a resource and
thereby effectively increase the cost of acquiring the natural
resource input. 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.
D. 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 local property owners. This measure of the reduction in
value of coastline resources will not capture any loss in value of
the resources that may accrue to members of the public who own no
property in the area.
E. 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 plus the economic
rent component of producer surplus, if any, for the injuries
associated with the discharge.
F. Contingent Valuation
The contingent valuation (CV) method determines the value of
goods and services based on the results of carefully designed
surveys. The CV methodology obtains an estimate of the total value,
including both direct and passive use values of a good or service by
using a questionnaire designed to objectively collect information
about the respondent's willingness to pay for the good or service. A
CV survey contains three basic elements: (1) A description of the
good/service to be valued and the context in which it will be
provided, including the method of payment; (2) questions regarding
the respondent's willingness to pay for the good or service; and (3)
questions concerning demographics or other characteristics of the
respondent to interpret and validate survey responses.
G. Conjoint Analysis
A conjoint analysis is a survey technique that is used to derive
the values of particular attributes of goods or services.
Information is collected about individuals' choices between
different goods that vary in terms of their attributes or service
levels. With this information, it is possible to derive values for
each particular attribute or service. If price is included as an
attribute in the choice scenarios, values can be derived in terms of
dollars which can be used with the valuation approach.
Alternatively, it is possible to value attributes in terms of
units of replacement services. Survey respondents would be presented
with choices between two or more options that may represent resource
projects with varying levels of services. The goal is to obtain the
value of the injured services in terms of alternative resource
services so that restoration projects can be scaled directly using
the service-to-service approach.
H. Benefits Transfer Approach
Benefits (or valuation) transfer involves the application of
existing value estimates or valuation functions and data that were
developed in one context to address a sufficiently similar resource
valuation question in a different context.
Where resource values have been developed through an
administrative or legislative process and are relevant and reliable
under the circumstances, the trustees may use these values, as
appropriate, in a benefits transfer context. NOAA solicits comment
on the type of administratively and legislatively established values
that would be appropriate for this purpose. 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
studies 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 studies being transferred.
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
Assistant General Counsel for Legislation and Regulation, 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 proposed rule is intended to make more specific, and
easier to apply, the standards set out in OPA and CERCLA for assessing
damages for injury to natural resources as a result of actual or
threatened discharges of oil. The rule is not intended to change the
balance of legal benefits and responsibilities among any parties or
groups, large or small. To the extent any are affected by the rule, it
is anticipated that all will benefit by increased ease of application
of law in this area.
It has been determined that this document is a significant 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.
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
[[Page 39827]]
resources, Water supply, Water transportation, Wetlands, Wildlife.
Dated: July 28, 1995.
Douglas K. Hall,
Assistant Secretary for Oceans and Atmosphere.
Under the authority of the Oil Pollution Act of 1990, 33 U.S.C.
2706(a), 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--Introduction
Sec.
990.10 Purpose.
990.11 Scope.
990.12 Overview.
990.13 Effect of using this part.
990.14 Coordination
990.15 Considerations to facilitate restoration.
990.16 Review and revision of this part.
Subpart B--Authorities
990.20 Relationship to other natural resource damage assessment
regulations.
990.21 Relationship to the NCP.
990.22 Prohibition on double recovery.
990.23 Compliance with other applicable laws and regulations.
990.24 Settlement.
990.25 Emergency restoration.
Subpart C--Definitions
990.30 Definitions.
Subpart D--Preassessment Phase
990.40 Purpose.
990.41 Determination of jurisdiction.
990.42 Determination to conduct restoration planning.
990.43 Notice of Intent to Conduct Restoration Planning.
990.44 Administrative record.
990.45 Data collection.
Subpart E--Restoration Planning Phase
990.50 Purpose.
990.51 Criteria for acceptable procedures.
990.52 Injury assessment--injury determination.
990.53 Injury assessment--quantification.
990.54 Injury assessment--selecting assessment procedures.
990.55 Restoration selection--development of a reasonable range of
alternatives.
990.56 Restoration selection--evaluation of alternatives.
990.57 Restoration selection--preparation of a Draft and Final
Restoration Plan.
990.58 Restoration selection--use of a Regional Restoration Plan.
Subpart F--Restoration Implementation Phase
990.60 Purpose.
990.61 Administrative record.
990.62 Presenting a demand.
990.63 Discounting and compounding.
990.64 Uncompensated claims.
990.65 Opening an account for recovered damages.
990.66 Additional considerations.
Subpart A--Introduction
Sec. 990.10 Purpose.
The purpose of this part is to promote expeditious restoration of
natural resources and services injured as a result of an incident
involving the discharge or substantial threat of a discharge of oil. To
fulfill this purpose, this part provides a natural resource damage
assessment process for developing a plan for the restoration of the
injured natural resources and services and pursuing implementation or
funding of the plan by responsible parties. This part provides an
administrative process for involving interested parties, a range of
assessment procedures for identifying and evaluating injuries to
natural resources and/or services, and a process for selecting
appropriate restoration actions from a range of alternatives.
Sec. 990.11 Scope.
The Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq.,
provides for the designation of federal, state, Indian tribal, and
foreign officials to act on behalf of the public as trustees for
natural resources. This part is available for use by these officials in
conducting natural resource damage assessments when natural resources
and/or services are injured as a result of an incident involving an
actual or substantial threat of a discharge of oil.
Sec. 990.12 Overview.
This part describes three phases of a natural resource damage
assessment. The Preassessment Phase, during which trustees determine
whether to pursue restoration, is described in subpart D of this part.
The Restoration Planning Phase, during which trustees evaluate
information on potential injuries and use that information to determine
the need for and type of restoration, is described in subpart E of this
part. The Restoration Implementation Phase, during which trustees
ensure implementation of restoration, is described in subpart F of this
part.
Sec. 990.13 Effect of using this part.
(a) Rebuttable presumption for claims. If federal, state, or Indian
tribal trustees act in accordance with this part and file a judicial or
administrative claim for natural resource damages, then the claim and
all determinations made by the trustees during the development of the
claim will be presumed correct unless the responsible parties present
evidence adequate to rebut the presumption.
(b) Use of other assessment procedures and methods. Trustees may
use other natural resource damage assessment procedures and methods in
lieu of or in addition to the process described in this part. However,
any component of a natural resource damage claim based on use of
another process will only be given a rebuttable presumption if such
process is in accordance with this part.
Sec. 990.14 Coordination.
(a) Other trustees. (1) If an incident affects the interests of
multiple trustees, the trustees may act jointly under this part.
Trustees must designate a lead administrative trustee to act as
coordinator and contact point for joint assessments.
(2) If there is a reasonable basis for dividing the natural
resource damage assessment, trustees may act independently under this
part, so long as there is no double recovery of damages for the same
incident and natural resource.
(3) Trustees may develop pre-incident or incident-specific
memoranda of understanding to coordinate their activities.
(b) Response agencies. Trustees must coordinate their activities
with response agencies consistent with the NCP and any pre-incident
plans developed under Sec. 990.15(a) of this part. Trustees may develop
pre-incident memoranda of understanding to coordinate their activities
with response agencies.
(c) Responsible parties. Trustees must invite the responsible
parties to participate in the NRDA process, including preassessment and
emergency restoration activities, where appropriate and such
participation will not interfere with trustees fulfilling their
responsibilities under these regulations and OPA.
(d) Public. Trustees may provide opportunities for public
involvement in addition to those specified in subparts D through F of
this part. Such opportunities may include solicitation of public
comment at additional stages of the process, public meetings on trustee
activities concerning specific incidents, and public outreach on non-
incident-specific restoration issues.
[[Page 39828]]
Sec. 990.15 Considerations to facilitate restoration.
In addition to the procedures provided in subparts D through F of
this part, trustees may take other actions to further the goal of
expeditious restoration of injured natural resources and services,
including:
(a) Pre-incident planning. Trustees may engage in pre-incident
planning activities. Pre-incident plans may: identify natural resource
damage assessment teams; establish trustee notification systems;
identify support services; identify natural resources and/or services
at risk; identify regional and area response agencies and officials;
identify available baseline information; establish data management
systems; and identify assessment funding issues and options.
(b) Regional Restoration Plans. Trustees may develop Regional
Restoration Plans. These plans may be used to support a claim as
provided in Sec. 990.58 of this part.
Sec. 990.16 Review and revision of this part.
This part will be reviewed and revised as appropriate as often as
necessary, but no less than once every five years.
Subpart B--Authorities
Sec. 990.20 Relationship to other natural resource damage assessment
regulations.
(a) CERCLA regulations--(1) General. The Department of the Interior
has developed regulations for assessing natural resource damages
resulting from hazardous substance releases and discharges of oil under
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. 9601 et seq., and the Clean Water
Act, 33 U.S.C. 1321 et seq. Those regulations are codified at 43 CFR
part 11. Those regulations originally applied to natural resource
damages resulting from oil discharges as well as hazardous substance
releases. This part supersedes 43 CFR part 11 with regard to oil
discharges under OPA.
(2) Assessments commenced before the effective date of this part.
If trustees commenced a natural resource damage assessment for an oil
discharge under 43 CFR part 11 prior to the effective date of this
part, they may complete the assessment in compliance with 43 CFR part
11 and obtain a rebuttable presumption, or they may elect to use this
part.
(3) Oil and hazardous substance mixtures. If natural resources are
injured by a discharge or release of a mixture of oil and hazardous
substances, trustees must use 43 CFR part 11 in order to obtain a
rebuttable presumption.
(b) State, local, or tribal procedures. Trustees may use state,
local, or tribal natural resource damage assessment procedures in lieu
of this part and obtain a rebuttable presumption provided that the
state, local, or tribal procedures are in accordance with this part.
State, local, or tribal procedures are in accordance with this part
when the procedures:
(1) Require all recovered damages to be spent on restoration,
subject to a plan made available for public review and comment, except
for those damages recovered to reimburse trustees for past assessment
and emergency restoration costs;
(2) Determine compensation based on injury and/or restoration;
(3) Are consistent with the standards for the technical methods
described in Sec. 990.51 of this part;
(4) Were developed through a public rulemaking process; and
(5) Do not conflict with OPA or this part.
Sec. 990.21 Relationship to the NCP.
This part supplements the procedures established under the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR
part 300, for the response to an incident. This part provides
procedures by which trustees may determine appropriate restoration of
injured natural resources and services that are not fully addressed by
response actions conducted pursuant to the NCP.
Sec. 990.22 Prohibition on double recovery.
When taking actions under this part, trustees must consider the
actions of other trustees with respect to the same incident and natural
resources and the effect of the prohibition on double recovery of
damages in 33 U.S.C 2706(d)(3).
Sec. 990.23 Compliance with other applicable laws and regulations.
(a) NEPA. The National Environmental Policy Act (NEPA), 42 U.S.C.
4321 et seq., applies to restoration planning by federal trustees,
unless a categorical exclusion applies. NEPA is triggered when federal
trustees issue a Notice of Intent to Conduct Restoration Planning under
Sec. 990.43 of this part. Compliance with the procedures set forth in
subparts E and F of this part fulfills the requirements of NEPA.
(b) Worker health and safety. When taking action under this part,
trustees must comply with all worker health and safety considerations
specified in the NCP for response actions.
(c) Resource protection. When acting under this part, trustees must
ensure compliance with any applicable federal consultation or review
requirements, including but not limited to: the Endangered Species Act
of 1973, 16 U.S.C. 1531 et seq.; the Coastal Zone Management Act of
1972, 16 U.S.C. 1451 et seq.; the Migratory Bird Treaty Act, 16 U.S.C.
703; the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; the
National Historic Preservation Act, 12 USC 470; and the Marine Mammal
Protection Act, 16 U.S.C. 1361 et seq.
(d) State, local, and tribal procedural requirements. To the extent
that federal trustees can legally comply with state, local, and tribal
procedural requirements they should do so.
Sec. 990.24 Settlement.
Trustees may settle claims for natural resource damages at any
time, provided that the settlement is adequate in the judgment of the
trustees to make the environment and public whole for the injury,
destruction, loss of, or loss of use of natural resources and/or
services that have or are likely to have occurred; with particular
consideration of the adequacy of the compensation to provide for the
restoration of such resources. Sums recovered in settlement of such
claims may only be expended in accordance with a restoration plan that
is made available for public review.
Sec. 990.25 Emergency restoration.
(a) Trustees may take emergency restoration action before
completing the process established under this part, provided that:
(1) The action is needed to minimize continuing injury or prevent
additional injury to natural resources and/or services;
(2) The action is feasible and likely to minimize continuing or
prevent additional injury; and
(3) The costs of the action are not unreasonable.
(b) If response actions are still underway and emergency
restoration actions have the potential to interfere with such response
actions, trustees must coordinate with the On-Scene Coordinator (OSC)
before taking any emergency restoration actions. Where emergency
restoration actions are not expected to interfere with ongoing response
actions, trustees must notify the OSC of the their intended actions
prior to implementation and explain their reasons for believing that no
interference with the response will result.
[[Page 39829]]
(c) Trustees must provide notice to the responsible parties of any
emergency restoration actions and invite their participation in the
conduct of those actions within a reasonable timeframe.
(d) Trustees must provide public notice of any emergency
restoration actions within a reasonable timeframe after completion of
such actions. The notice must include a description of the
justification for, the nature and extent of, and the results of
emergency restoration actions.
Subpart C--Definitions
Sec. 990.30 Definitions.
Baseline means the condition of the natural resource and/or service
that would have existed had the incident not occurred. Baseline data
include historical data, reference data, control data, and data on
incremental changes (e.g., number of dead animals).
Cost-effective means the least costly activity among two or more
activities that provide the same or comparable level of benefits.
Discharge means any emission (other than natural seepage),
intentional or unintentional, and includes, but is not limited to,
spilling, leaking, pumping, pouring, emitting, emptying, or dumping.
Exclusive Economic Zone means the zone established by Presidential
Proclamation Numbered 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.
Exposure means direct or indirect contact with the discharged oil.
Incident means any occurrence or series of occurrences 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 into or upon navigable waters or adjoining
shorelines or the Exclusive Economic Zone.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, but not including any Alaska Native
regional or village corporation, which is recognized as eligible for
the special programs and services provided by the United States to
Indians because of their status as Indians and has governmental
authority over lands belonging to or controlled by the tribe.
Injury means an observable or measurable adverse change in a
natural resource or impairment of a natural resource service. Injury
may occur directly or indirectly to a natural resource and/or service.
Injury incorporates ``destruction,'' ``loss,'' and ``loss of use'' as
provided in OPA.
National Contingency Plan (NCP) means the National Oil and
Hazardous Substances Pollution Contingency Plan codified at 40 CFR part
300, which addresses the identification, investigation, study, and
response to incidents.
Natural resources 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 or Indian
tribe, or any foreign government.
Navigable waters means the 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, and oil mixed with
wastes other than dredged spoil. However, the term does not include
petroleum, including crude oil or any fraction thereof, that is
specifically listed or designated as a hazardous substance under 42
U.S.C. 9601(14) (A) through (F).
Oil Spill Liability Trust Fund means the Oil Spill Liability Trust
Fund, established by section 9509 of the Internal Revenue Code of 1986
(26 U.S.C. 9509).
On-Scene Coordinator or OSC means the federal official
predesignated by the U.S. Environmental Protection Agency or the U.S.
Coast Guard to coordinate and direct response actions under the NCP, or
the government official designated by the lead response agency to
coordinate and direct removal actions under the NCP.
OPA means the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.
Pathway means a nexus between the incident and a natural resource
and/or service.
Person means an individual, corporation, partnership, association,
state, municipality, commission, or political subdivision of a state,
or any interstate body.
Public vessel means a vessel owned or bareboat chartered and
operated by the United States, or by a state or political subdivision
thereof, or by a foreign nation, except when the vessel is engaged in
commerce.
Reasonable assessment costs for assessments performed under this
part means those costs that:
(1) Are incurred by trustees in accordance with this part;
(2) Are proportionate to the restoration costs, except in cases
where assessment costs are incurred but trustees do not pursue
restoration, provided that trustees have determined they have
jurisdiction under Sec. 990.41 of this part; and
(3) Result from use of procedures for which the incremental cost is
reasonably related to the incremental increase in assessment
information.
Reasonable assessment costs also include the administrative, legal,
and enforcement costs necessary to carry out this part.
Recovery means the return of injured natural resources and/or
services to baseline.
Response means actions taken under the NCP to protect public health
and welfare, or the environment when there is a discharge or a
substantial threat of a discharge of oil, including actions to contain
or remove discharged oil from water and shorelines.
Responsible party means:
(1) Vessels. In the case of a vessel, any person owning, operating,
or demise chartering the vessel.
(2) Onshore facilities. In the case of an onshore facility (other
than a pipeline), any person owning or operating the facility, except a
federal agency, state, municipality, commission, or political
subdivision of a state, or any interstate body, that as the owner
transfers possession and right to use the property to another person by
lease, assignment, or permit.
(3) Offshore facilities. In the case of an offshore facility (other
than a pipeline or a deepwater port licensed under the Deepwater Port
Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the
area in which the facility is located or the holder of a right of use
and easement granted under applicable state law or the Outer
Continental Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which
the facility is located (if the holder is a different person than the
lessee or permittee), except a federal agency, state, municipality,
commission, or political subdivision of a state, or any interstate
body, that as owner transfers possession and right to use the property
to another person by lease, assignment, or permit.
(4) Deepwater ports. In the case of a deepwater port licensed under
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
(5) Pipelines. In the case of a pipeline, any person owning or
operating the pipeline.
(6) Abandonment. In the case of an abandoned vessel, onshore
facility,
[[Page 39830]]
deepwater port, pipeline, or offshore facility, the persons who would
have been responsible parties immediately prior to the abandonment of
the vessel or facility.
Restoration means any action, or combination of actions, to
restore, rehabilitate, replace, or acquire the equivalent of injured
natural resources and services. Restoration includes:
(1) Primary restoration, which is either human intervention or
natural recovery that returns injured natural resources and services to
baseline; and
(2) Compensatory restoration, which is action taken to make the
environment and the public whole for service losses that occur from the
date of the incident until recovery of the injured natural resource.
Services or natural resource services means the functions performed
by a natural resource for the benefit of another natural resource or
the public.
State means any of the states of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of the Northern
Marianas, or any other territory or possession of the United States.
Trustees or natural resource trustees means those officials of the
federal and state governments, of Indian tribes, and of foreign
governments, designated under 33 U.S.C. 2706(b).
Value means the amount of items an individual is willing to give up
to obtain a good or is willing to accept to forgo a good. Under this
part, value may be measured either in terms of units of natural
resource services or dollar amounts. The total value of a natural
resource or service is equal to the sum of all individuals' values.
Vessel means every type of watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water, other than a public vessel.
Subpart D--Preassessment Phase
Sec. 990.40 Purpose.
The purpose of this subpart is to provide a process by which
trustees determine if they have jurisdiction to pursue restoration
under OPA and, if so, whether it is appropriate to do so.
Sec. 990.41 Determination of jurisdiction.
(a) Upon learning of an incident, trustees must determine whether
there is jurisdiction to pursue restoration under OPA. To make this
determination, trustees must decide if:
(1) An incident as defined in Sec. 990.30 of this part has
occurred;
(2) The incident involves a discharge or a substantial threat of a
discharge that is neither:
(i) Permitted under a permit issued under federal, state, or local
law;
(ii) From a public vessel; nor
(iii) From an onshore facility subject to the Trans-Alaska Pipeline
Authority Act, 43 U.S.C. 1651, et seq.; and
(3) Natural resources under the trusteeship of the trustees have or
may be affected as a result of the incident.
(b) If any of the conditions listed in paragraph (a) of this
section are not met, trustees may not take additional action under this
part. If all of these conditions are met, trustees may proceed under
this part.
Sec. 990.42 Determination to conduct restoration planning.
(a) If trustees determine that there is jurisdiction to pursue
restoration under OPA, trustees must determine, based on readily
available information, if:
(1) Injuries likely have resulted or will result from the incident;
(2) Response actions may not adequately address the potential
injuries; and
(3) Feasible restoration actions exist to address the potential
injuries.
(b) If any of the conditions listed in paragraph (a) of this
section are not met, trustees may not take additional action under this
part. However, trustees may recover all reasonable assessment costs
incurred up to the point when they determined that the conditions were
not met. If all the conditions are met, trustees may proceed under this
part.
Sec. 990.43 Notice of Intent to Conduct Restoration Planning.
(a) If trustees determine that all the conditions in Sec. 990.42(a)
of this part are met, they must prepare a Notice of Intent to Conduct
Restoration Planning. The Notice will include a discussion of the
trustees' analysis under Secs. 990.41 and 990.42 of this part.
(b) Trustees must make a copy of the Notice publicly available.
(c) Trustees must send a copy of the Notice to the known
responsible parties and invite their participation in the conduct of
restoration planning.
Sec. 990.44 Administrative record.
If trustees make a determination to conduct restoration planning,
they must open a publicly available administrative record. Trustees
must include in the administrative record: the Notice of Intent to
Conduct Restoration Planning; documents and other factual information
considered by the trustees when assessing injury and selecting a
restoration action under subpart E of this part, including studies
performed by the trustees; and documents that are submitted in a timely
fashion by the responsible parties or other members of the public.
Sec. 990.45 Data collection.
Trustees may conduct limited data collection during the
Preassessment Phase. Data collection during the Preassessment Phase
must be coordinated with response actions such that the collection does
not interfere with or hinder the response actions. Trustees may collect
the following types of data during the Preassessment Phase:
(a) Data reasonably expected to be necessary to make a
determination of jurisdiction under Sec. 990.41 of this part or a
determination to conduct restoration planning under Sec. 990.42 of this
part;
(b) Ephemeral data; and
(c) Information needed to design or implement anticipated
assessment procedures under subpart E of this part.
Subpart E--Restoration Planning Phase
Sec. 990.50 Purpose.
The purpose of this subpart is to provide a process by which
trustees evaluate information on potential injuries to natural
resources and/or services (injury assessment), and use that information
to determine the need for and scale of restoration actions (restoration
selection).
Sec. 990.51 Criteria for acceptable procedures.
In order to be in accordance with this part, any procedures for
assessing injury under Secs. 990.52 and 990.53 of this part and scaling
compensatory restoration actions under Sec. 990.55(c)(3) of this part
must meet the following criteria:
(a) If available, injury determination and quantification
procedures that provide information of use in determining the type and
level of restoration appropriate for a particular injury must be used;
(b) If a range of procedures providing the same type and quality of
assessment information is available, the most cost-effective procedure
must be used;
(c) The incremental cost of a more complex study must be reasonably
related to the expected increase in relevant assessment information
provided by the more complex study; and
(d) The procedures used must be reliable and valid for the
particular context.
[[Page 39831]]
Sec. 990.52 Injury assessment--injury determination.
(a) General. After issuing a Notice of Intent to Conduct
Restoration Planning under Sec. 990.43 of this part, trustees must
determine if any injuries to natural resources and/or services have
resulted from the incident. To make this determination, trustees must
determine if:
(1) The definition of ``injury'' has been met; and
(2) Natural resources have been exposed to the discharged oil, and
a pathway links the injured natural resource and/or service to the
incident; or, for injuries resulting from response actions or incidents
involving a substantial threat of a discharge, an injury to a natural
resource or an impairment of use of a natural resource service has
occurred as a result of the incident.
(b) Injury. Trustees must determine whether an injury, as defined
in Sec. 990.30 of this part, has occurred and, if so, identify the
nature of the injury. Potential categories of injury include, but are
not limited to, adverse changes in: survival, growth, and reproduction;
health, physiology and biological condition; behavior; community
composition; ecological processes and functions; physical and chemical
habitat quality or structure; and public services.
(c) Exposure and pathway. Except for injuries resulting from
response actions or incidents involving a substantial threat of a
discharge of oil, trustees must determine whether natural resources
were exposed, either directly or indirectly, to the discharged oil from
the incident, and estimate the amount or concentration and spatial/
temporal extent of the exposure. Trustees must also determine whether
there is a plausible pathway linking the incident to the injuries.
Pathways include, but are not limited to: the sequence of events by
which the discharged oil was transported from the incident and came
into direct physical contact with a natural resource; or the sequence
of events by which the discharged oil was transported from the incident
and caused an indirect injury.
(d) Injuries resulting from response actions or incidents involving
a substantial threat of a discharge. For injuries resulting from
response actions or incidents involving a substantial threat of a
discharge of oil, trustees must determine whether an injury or an
impairment of use of a natural resource service has occurred as a
result of the incident.
(e) Selection of injuries to include in the assessment. When
selecting potential injuries to assess, trustees must consider:
(1) The natural resource/service of concern;
(2) The adverse change that constitutes injury;
(3) The potential degree, and spatial/temporal extent of the
injury;
(4) The evidence indicating injury;
(5) The mechanism by which injury occurred;
(6) The evidence indicating exposure;
(7) The pathway from the incident to the natural resource/service
of concern;
(8) The potential natural recovery period;
(9) The kinds of primary and/or compensatory restoration actions
that are feasible; and
(10) The kinds of procedures available to evaluate the injury, and
the time and money requirements.
(f) Procedures.
Trustees perform injury determination using the assessment
procedures described in Sec. 990.54 of this part.
(g) Proceeding with the assessment. If any of the conditions for
determining injury provided in paragraph (a) of this section is not
met, trustees may not take additional action under this part. However,
trustees may recover all reasonable assessment costs incurred up to the
point when they determined that the conditions were not met. If all the
conditions are met, trustees may proceed under this part.
Sec. 990.53 Injury assessment--quantification.
(a) General. In addition to determining whether injuries have
resulted from the incident, trustees must quantify the degree and
spatial/temporal extent of such injuries. Trustees perform injury
quantification using the assessment procedures described in Sec. 990.54
of this part.
(b) Trustees may quantify injuries in terms of:
(1) The degree and spatial/temporal extent of injury to a natural
resource;
(2) The degree and spatial/temporal extent of injury to a natural
resource relative to baseline with subsequent translation of that
change to a reduction in services provided by the natural resource; or
(3) The amount of services lost as a result of the incident.
(c) Trustees must estimate the time for natural recovery without
restoration, but including any response actions. Analysis of recovery
times may include evaluation of factors such as:
(1) Degree and spatial/temporal extent of injury;
(2) Sensitivity of the injured natural resource and/or service;
(3) Reproductive potential;
(4) Stability and resilience of the affected environment;
(5) Natural variability; and
(6) Physical/chemical processes of the affected environment.
Sec. 990.54 Injury assessment--selecting assessment procedures.
(a) General. When performing injury assessment, trustees must
select appropriate assessment procedures. Trustees may use simplified
or incident-specific assessment procedures as described in paragraphs
(d) and (e) of this section. Trustees may also use more than one
assessment procedure provided there is no double recovery.
(b) Selection of assessment procedures. When selecting assessment
procedures, trustees must consider:
(1) Potential nature, degree, and spatial/temporal extent of the
injury;
(2) Potential restoration actions for the injury;
(3) Range of assessment procedures available, including the
applicability of simplified assessment procedures;
(4) Time and cost necessary to implement the assessment procedures;
and
(5) Relevance between the information generated by the assessment
procedures and the information needed for restoration planning.
(c) Request for incident-specific assessment procedures. When
trustees have made a determination that a simplified assessment
procedure is the most appropriate procedure for a given incident or
injury, the responsible parties may request that trustees use incident-
specific assessment procedures instead of a simplified assessment
procedure if the responsible parties, in a timeframe acceptable to the
trustees:
(1) Identify the incident-specific assessment procedures to be used
and the reasons supporting the technical appropriateness of such
procedures for the incident or injury;
(2) Advance the costs of using such incident-specific assessment
procedures; and
(3) Agree not to challenge the reasonableness of the costs of using
such incident-specific assessment procedures.
(d) Simplified assessment procedures.
(1) Type A procedures. Trustees may use type A procedures
identified in 43 CFR part 11, subpart D, that address oil discharges
provided that conditions are sufficiently similar to those listed in 43
CFR 11.33 regarding use of the procedures.
(2) Compensation Formulas. [Reserved]
(e) Incident-specific assessment procedures. Trustees may use
incident-
[[Page 39832]]
specific assessment procedures including, alone or in any combination:
(1) Field methods;
(2) Laboratory methods;
(3) Model-based methods; and
(4) Literature-based methods.
Sec. 990.55 Restoration selection--development of a reasonable range
of alternatives.
(a) General. After trustees have determined and quantified injury
under Secs. 990.52 and 990.53 of this part, they must identify a
reasonable range of restoration alternatives for consideration, except
as provided in Sec. 990.58 of this part regarding use of a Regional
Restoration Plan. Each alternative may identify an overall package of
actions for addressing the injured natural resources and/or services of
concern, or actions to restore individual injured natural resources and
services, where there is reasonable basis for separately evaluating
actions to restore separate natural resources and/or services. The
range of alternatives must include a no-action alternative under which
no human intervention would be taken either for primary restoration or
for compensatory restoration.
(b) Primary restoration. (1) General. Each alternative must include
a primary restoration component.
(2) Types of alternatives. When identifying primary restoration
alternatives to be considered, trustees must consider whether:
(i) Conditions exist that would limit the effectiveness of primary
restoration actions (e.g., residual sources of contamination);
(ii) Primary restoration actions are necessary or feasible to
return the physical, chemical, and biological conditions necessary to
allow recovery or restoration of the injured resources (e.g.,
replacement of sand or vegetation); and
(iii) Primary restoration actions focusing on certain key species
or habitats would be an effective approach to achieving baseline
conditions.
(c) Compensatory restoration. (1) General. In addition to primary
restoration, trustees have the discretion to include a compensatory
restoration component in some or all of the restoration alternatives.
(2) Types of alternatives. When identifying the types of
compensatory restoration alternatives to be considered, trustees must
first identify compensatory restoration actions that, in the judgment
of the trustees, provide services of the same type and quality as those
injured. If such actions are infeasible or too few in number to provide
a reasonable range of alternatives, trustees may identify other actions
provided that those actions provide services of comparable type and
quality as those injured.
(3) Scaling compensatory restoration actions.
(i) General. After trustees have identified the types of
compensatory restoration alternatives that will be considered, they
must determine the scale of those alternatives that will make the
environment and the public whole.
(ii) Service-to-service scaling approach. When determining the
scale of a compensatory restoration alternative that provides services
that are of the same type and quality, and are subject to comparable
resource scarcity and demand conditions as those lost, trustees must
use the service-to-service scaling approach. Under the service-to-
service scaling approach, trustees determine the scale of the
compensatory restoration alternative that will produce services equal
in quantity to those lost.
(iii) Valuation scaling approach. (A) When determining the scale of
a compensatory restoration alternative that provides services that are
of a different type or quality, or are subject to non-comparable
resource scarcity or demand conditions as those lost, trustees may use
the valuation scaling approach. Under the valuation scaling approach,
trustees determine the amount of services that must be provided to
produce the same value lost to the public. Trustees must explicitly
measure the value of lost services and then determine which scale of
the compensatory restoration alternative will produce services of
equivalent value to the public.
(B) If valuation of the services provided by the compensatory
restoration alternative cannot, in the judgment of the trustees, be
performed at a reasonable assessment cost, as defined in Sec. 990.30 of
this part, the trustees may estimate the dollar value of the lost
services and select the scale of the alternative that has a cost
equivalent to the lost value. The responsible parties may request that
trustees value the services provided by the alternative if the
responsible parties, within a timeframe acceptable to the trustees,
advance the costs of doing so and agree not to challenge the
reasonableness of the costs of performing such valuation.
(iv) Discounting and uncertainty. When scaling a compensatory
restoration alternative, trustees must address the uncertainties
associated with the predicted consequences of the alternative and must
discount all service quantities and/or values to the date the demand is
presented. Where feasible, trustees should use risk-adjusted measures
of losses due to injury and gains from the compensatory restoration
alternative, in conjunction with a riskless rate of discount. If the
streams of losses and gains cannot be adequately adjusted for risks,
then trustees may use a discount rate that incorporates a suitable risk
adjustment to the riskless rate. When discounting future service
quantities or values, trustees may use the appropriate inflation index
to adjust nominal rates of discount into real terms.
(d) Restoration alternatives for simplified assessments. If
trustees used a simplified assessment procedure under Sec. 990.54(d) of
this part, they may develop a reasonable range of restoration
alternatives for addressing the injuries assessed by that simplified
assessment procedure based on consideration of any combination of:
(1) Injury predictions, if any, provided by the simplified
assessment procedure;
(2) Restoration recommendations, if any, provided by the simplified
assessment procedure; and
(3) Lost values, if any, calculated by the simplified assessment
procedure.
Sec. 990.56 Restoration selection--evaluation of alternatives.
(a) Once trustees have developed a reasonable range of restoration
alternatives under Sec. 990.55 of this part, they must evaluate the
alternatives based on:
(1) Extent to which each alternative can return the injured natural
resources and services to baseline and make the environment and the
public whole for interim service losses;
(2) Extent to which each alternative improves the rate of recovery;
(3) Extent to which each alternative will avoid additional injury;
(4) Level of uncertainty in the success of each alternative;
(5) Extent to which each alternative benefits more than one natural
resource and/or service;
(6) Cost of each alternative;
(7) Effects of each alternative on public health and safety, and
the environment; and
(8) Whether any alternative violates any laws or regulations.
(b) Based on the evaluation of the factors listed in paragraph (a)
of this section, trustees must select a preferred restoration
alternative. If there are two or more preferred alternatives, trustees
must select the most cost-effective alternative.
(c) Where additional information is needed to identify and evaluate
the restoration alternatives, trustees may implement pilot studies.
[[Page 39833]]
Sec. 990.57 Restoration selection--preparation of a Draft and Final
Restoration Plan.
(a) Draft Restoration Plan. After selecting a preferred restoration
alternative under Sec. 990.56 of this part, the trustees must prepare a
Draft Restoration Plan. The Draft Restoration Plan must include:
(1) A summary of injury assessment procedures and methods used;
(2) A description of the degree, nature, and spatial/temporal
extent of injuries to natural resources and/or services resulting from
the incident;
(3) The goals and objectives of restoration;
(4) The range of restoration alternatives considered and a
discussion of how such alternatives were identified and developed under
Sec. 990.55 of this part;
(5) A discussion of the trustees' evaluation of the restoration
alternatives under Sec. 990.56 of this part;
(6) A description of a monitoring plan for documenting restoration
effectiveness and the need for corrective action and performance
criteria for judging the success and completion of restoration and the
need for corrective action; and
(7) A description of the involvement of the responsible party in
the assessment process, and proposed involvement in the restoration
process.
(b) Public review and comment. The Draft Restoration Plan must be
made available for public review and comment for at least 30 calendar
days. The type of notice, review, and comment procedures used will
depend on the nature of the incident and the restoration actions being
proposed.
(c) Final Restoration Plan. After reviewing public comments on the
Draft Restoration Plan, trustees must develop a Final Restoration Plan.
The Final Restoration Plan must include: the information specified in
paragraph (a) of this section; a response to public comments; and an
indication of any changes made to the Draft Restoration Plan. Trustees
must make the Final Restoration Plan publicly available.
Sec. 990.58 Restoration selection--use of a Regional Restoration Plan.
(a) General. If trustees used a simplified assessment procedure
under Sec. 990.54(d) of this part, they may consider using a Regional
Restoration Plan instead of developing an incident-specific restoration
plan.
(b) Existing Regional Restoration Plan. (1) Trustees may use an
existing Regional Restoration Plan provided that the Plan:
(i) Was developed subject to public review and comment; and
(ii) Addresses and is currently relevant to the same or comparable
natural resources or services as those identified during injury
assessment as having been injured.
(2) If the conditions set forth in paragraph (b)(1) of this section
are met, trustees may present the responsible parties with a demand
under Sec. 990.62 of this part for the damages calculated by the
simplified assessment procedure and use the recovered sums to implement
the Regional Restoration Plan as provided in Sec. 990.65 of this part.
(c) New Regional Restoration Plan. (1) If there is not an existing
Regional Restoration Plan that meets the conditions of paragraph (b)(1)
of this section and the information provided by the simplified
assessment procedure does not support development of an incident-
specific restoration plan, trustees may present the responsible parties
with a demand under Sec. 990.62 of this part for the damages calculated
by the simplified assessment procedure and place the recovered funds
into an account with other similar recoveries under Sec. 990.65 of this
part, until such time that sufficient funds to develop and implement a
new Regional Restoration Plan are collected. Recoveries may only be
commingled in this manner where injuries to natural resources and/or
services were similar for the incidents represented by pooled funds,
and where the incidents were within the same region (i.e. ecosystem or
watershed).
(2) New Regional Restoration Plans must be developed subject to
public review and comment.
(d) Notice of Intent to Use a Regional Restoration Plan. If
trustees intend to use a Regional Restoration Plan instead of
developing an incident-specific restoration plan, they must prepare a
Notice of Intent to Use a Regional Restoration Plan. Trustees must make
a copy of the Notice publicly available. The Notice must include:
(1) A description of the nature, degree, and spatial/temporal
extent of injuries to natural resources and/or services resulting from
the incident;
(2) A description of the existing Regional Restoration Plan and an
explanation of how the conditions set forth in paragraph (b)(1) of this
section are met; or a description of the anticipated process for
developing a new Regional Restoration Plan and an explanation of why
the information provided by the simplified assessment procedure does
not support development of an incident-specific restoration plan; and
(3) Identification of the damage amount sought and the calculation
of that amount.
Subpart F--Restoration Implementation Phase
Sec. 990.60 Purpose.
The purpose of this subpart is to provide a process for
implementing restoration.
Sec. 990.61 Administrative record.
(a) Closing the administrative record for restoration planning.
After the trustees prepare the Final Restoration Plan or the Notice of
Intent to Use a Regional Restoration Plan, they must close the
administrative record. Trustees may not add documents to the record
once it is closed. However, trustees may add documents relating to a
Final Restoration Plan if such documents:
(1) Are offered by an interested party that did not receive actual
or constructive notice of the Draft Restoration Plan and the
opportunity to comment on the Plan;
(2) Do not duplicate information already contained in the
administrative record; and
(3) Raise significant issues regarding the Final Restoration Plan.
(b) Opening an administrative record for restoration
implementation. Trustees may open an administrative record for
implementation of restoration.
Sec. 990.62 Presenting a demand.
(a) General. After closing the administrative record for
restoration planning, trustees must present a written demand to the
responsible parties. Delivery of the demand should be made in a manner
that establishes the date of receipt by the responsible party.
(b) When a Final Restoration Plan has been developed. Except as
provided in paragraph (c) of this section, the demand must ask the
responsible parties to either:
(1) Implement the Final Restoration Plan subject to trustee
oversight and reimburse the trustees for their oversight costs; or
(2) Advance to the trustees a specified sum representing all costs
associated with implementing the Final Restoration Plan, discounted as
provided in Sec. 990.63(a) of this part.
(c) When a Regional Restoration Plan is used. If the trustees
intend to use a Regional Restoration Plan under Sec. 990.58 of this
part, the demand must ask the responsible parties to pay damages in the
amount calculated by the simplified assessment procedure under
Sec. 990.54(d) of this part. Depending on the circumstances, it may
[[Page 39834]]
also be feasible for the responsible parties to implement selected
portions of the Regional Restoration Plan.
(d) Additional contents of demand. The demand must also include:
(1) Identification of the incident from which the claim arises;
(2) Identification of the trustees asserting the claim;
(3) A brief description of the injuries for which the claim is
being brought;
(4) The index to the administrative record;
(5) The Final Restoration Plan or Notice of Intent to Use a
Regional Restoration Plan; and
(6) A request for reimbursement of:
(i) Reasonable assessment costs, as defined in Sec. 990.30 of this
part, compounded as provided in Sec. 990.63(b) of this part;
(ii) The cost, if any, of conducting emergency restoration under
Sec. 990.25 of this part, compounded as provided in Sec. 990.63(b) of
this part; and
(iii) Interest on the amounts recoverable under 33 U.S.C. 2705,
which provides for prejudgment and post-judgment interest to be paid at
a commercial paper rate, starting from 30 calendar days from the date a
demand is presented until the date the claim is paid.
Sec. 990.63 Discounting and compounding.
(a) Estimated future restoration costs. When determining estimated
future costs of implementing a Final Restoration Plan, trustees must
discount such future costs back to the date the demand is presented.
Trustees may use a discount rate that represents the yield on
recoveries available to trustees. The price indices used to project
future inflation must reflect the major components of the restoration
costs.
(b) Past assessment and emergency restoration costs. When
calculating the present value of assessment and emergency restoration
costs already incurred by trustees, trustees must compound the past
costs forward to the date the demand is presented. To perform the
compounding, trustees may use the actual U.S. Treasury borrowing rate
on marketable securities of comparable maturity to the period of
analysis. For costs incurred by state or tribal trustees, trustees may
compound using parallel state or tribal borrowing rates.
(c) Trustees are referred to Appendices B and 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 Appendix C, which is regularly updated, and of the Circular
are available from the OMB Publications Office (202-395-7332).
Sec. 990.64 Uncompensated claims.
(a) If the responsible parties do not agree to the demand within 90
calendar days after trustees present the demand, the trustees may
either file a judicial action for damages or file a claim for
uncompensated damages with the Oil Spill Liability Trust Fund.
(b) Judicial actions and claims must be filed within three years
after the Final Restoration Plan or Notice of Intent to Use a Regional
Restoration Plan is made publicly available, as provided in 33 U.S.C.
2717(f)(1)(B) and 2712(h)(2).
Sec. 990.65 Opening an account for recovered damages.
(a) General. Sums recovered by trustees in satisfaction of a
natural resource damage claim must be placed in a revolving trust
account. Sums recovered for past assessment costs and emergency
restoration costs may be used to reimburse the trustees. All other sums
must be used to implement the Final Restoration Plan, implement an
existing Regional Restoration Plan, or develop and implement a new
Regional Restoration Plan.
(b) Joint trustee recoveries. (1) General. Trustees may establish a
joint account for damages recovered pursuant to joint assessment
activities, such as an account under the registry of the applicable
federal court.
(2) Management. Trustees may develop enforceable agreements to
govern management of joint accounts, including agreed-upon procedures
and criteria and personnel for authorizing expenditures out of such
joint accounts.
(c) Interest-bearing accounts. Trustees may place recoveries in
interest-bearing revolving trustee accounts.
(d) Escrow accounts. Trustees may establish escrow accounts or
other investment accounts unless specifically prohibited by law.
(e) Records. Trustees must maintain appropriate accounting and
reporting methods to document expenditures from accounts established
under this section.
(f) Oil Spill Liability Trust Fund. Any sums remaining in an
account established under this section that are not used either to
reimburse trustees for past assessment and emergency restoration costs
or to implement restoration must be deposited in the Oil Spill
Liability Trust Fund.
Sec. 990.66 Additional considerations.
Upon settlement of a claim, trustees should consider the following
actions to facilitate implementation of restoration:
(a) Establishment of a trustee committee or memorandum of
understanding to coordinate among affected trustees;
(b) Development of more detailed workplans to implement
restoration;
(c) Monitoring and oversight of restoration; and
(d) Evaluation of restoration success and the need for corrective
action.
[FR Doc. 95-19128 Filed 8-2-95; 8:45 am]
BILLING CODE 3510-12-P
