INTERAGENCY AGREEMENT

NO. 99-221

BETWEEN

**THE UNITED STATES DEPARTMENT OF COMMERCE**

**NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION**

**(NOAA)**

**AND**

**THE UNITED STATES DEPARTMENT OF DEFENSE**

**PACIFIC NAVAL FACILITIES ENGINEERING COMMAND**

**(PACNAVFACENGCOM)**

1\. [General Information]{.underline}

In order to implement certain trustee responsibilities associated with
injured marine resources, the National Oceanic and Atmospheric
Administration (NOAA) has established the Damage Assessment and
Restoration Program (DARP). DARP is responsible for fulfilling the
Secretary's role as Federal trustee for natural resources, under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), the Clean Water Act, and the Oil Pollution Act (OPA). DARP
currently has more than seventy-five Natural Resource Damage Assessment
(NRDA) cases in the process of assessment and/or litigation. In part
because of its experience, DARP was responsible for developing damage
assessment regulations under OPA. These regulations were promulgated in
January 1996 and can be found at 15 CFR 990.

One of the themes of the NRDA regulations is planning and preparedness.
Section 990.15 (a) of 15 CFR 990 encourages trustees to be proactive in
planning for NRDA issues. The regulations state that:

> *"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 services at risk, identify
> area and regional response agencies and officials, identify available
> baseline information, establish data management systems, and identify
> assessment funding issues and options. Potentially responsible
> parties, as well as all other members of the public interested in and
> capable of participating in assessments, should be included in
> pre-incident planning to the fullest extent practicable."*

####### The Naval Facilities Engineering Command is the designated lead for environmental issues within the Navy, including oil spill contingency planning, and represents the US Department of Defense on the National Response Team. The Commander in Chief, Pacific Fleet (CINCPACFLT) is responsible for environmental compliance within the Pacific Region, including Hawaii and the Marianas. PACNAVFACENGCOM provides 

####### CINCPACFLT environmental technical expertise. The Navy operates widespread ship and shore-based facilities and manages extensive natural resources in the Pacific. As a result, the Navy is both a Potentially Responsible Party and a Natural Resource Trustee and may act as both for a single incident. The Navy recognizes the value of pre-incident planning and has requested assistance from NOAA in developing such a plan for Guam.

II\. [References and Authorities]{.underline}

The National Oceanic and Atmospheric Administration and the Pacific
Naval Facilities Engineering Command (hereafter referred to as "NOAA"
and "PACNAVFACENGCOM") enter into this agreement under authority of
Section 601 of the Economy Act of 1932, 31 U.S.C. §1535. Due to the
Navy\'s trustee responsibilities and NOAA's expertise in the area of
damage assessment, this agreement promotes the economy and efficiency of
government.

Other statutory and/or regulatory authorities related to the services
outlined herein are listed in the Statement of Work as attached hereto
and made a part hereof.

III\. [Purpose]{.underline}

This interagency agreement is established to develop a pre-incident
damage assessment plan for natural resources under the trusteeship of
the Navy in the Commonwealth of Guam. The services required are
specifically outlined in the attached Statement of Work entitled "Damage
Assessment Pre-Incident plan for Guam." (See Attachment 01 which is
attached herewith and made a part hereto). This Statement of Work (SOW)
includes the full range of activities necessary to: (1) review existing
Navy response plans for Guam, (2) collect information on natural
resources that may be at risk from incidents in or near Guam; (3)
develop a draft plan and (4) review and incorporate comments into a
final plan.

The services provided for herein will be sufficient to comply with the
suggested pre-incident planning requirements outlined under the NRDA
regulations implementing OPA \[15 CFR 990\].

IV. [Definitions]{.underline}

The terminology used herein is consistent with the definitions set forth
in OPA and the NRDA regulations found at 15 CFR 990.

V.  [Responsibilities]{.underline}

    A. [Support Services and Supplies]{.underline}:

NOAA shall provide the services of qualified professionals capable of
effectively and efficiently performing the duties and obligations set
forth in the attached Statement of Work. These services may be provided
in the form of contractor support services (e.g., services contracted
for by NOAA to a commercial enterprise.)

In obtaining these services, NOAA shall be responsible for abiding by
all applicable laws and regulations including the Federal Acquisition
Regulation. NOAA shall ensure that the contractor complies with all
applicable procurement laws, regulations, policies and procedures.

NOAA shall facilitate clear communication with the contractor including
executing timely modification(s) to its agreement with the contractor.
No work may be performed that is outside the scope of this agreement
without the express, written approval of the officials authorized by
NOAA and PACNAVFACENGCOM to sign this agreement.

NOAA shall ensure that all invoices and subsequent funding requests
submitted to PACNAVFACENGCOM are accurate and complete. NOAA shall
further ensure that costs incurred are both reasonable and realistic and
in the best interest of the Government. Finally, NOAA shall be
responsible for providing billing documentation and ensuring that costs
do not exceed the amount set forth herein. The type and extent of
billing documentation shall be provided as set forth herein or as
otherwise established by NOAA.

PACNAVFACENGCOM shall provide on-site accommodations for NOAA or
contractor personnel requiring access to COMNAVMARIANAS facilities.
Further, PACNAVFACENGCOM shall provide necessary documentation and
assistance to NOAA or NOAA's support contractor(s). Capitalized
equipment will NOT be purchased under this agreement.

B. [Reimbursement for Support Services and Supplies]{.underline}

In consideration for the services actually provided and performed in
accordance with the attached Statement of Work, PACNAVFACENGCOM will
reimburse the actual, allowable and allocable costs identified by NOAA
up to, but not exceeding the budget set forth in Section VI below and
subject to the availability of funds. Reimbursement shall be based on
actual costs incurred. Costs incurred are measured by the hourly labor
rates (both direct salary plus proportionate overhead and indirect
costs) of NOAA personnel working in direct support of this effort, as
well as the actual cost of contractor support services,
materials/supplies/travel or other direct costs.

VI. [Programming, Budgeting, Funding, and Reimbursement
    Arrangements]{.underline}

> Within the terms of this agreement, budgeting, funding, and
> reimbursements will be accomplished by the respective agencies
> entering into this agreement in accordance with the fiscal
> responsibilities indicated herein.
>
> The total amount estimated/budgeted for accomplishing the provisions
> of this agreement is as follows:
>
> NOAA Costs: \$ 12,998

#####  Contractor Costs: [\$ 25,036]{.underline}

#####  TOTAL ESTIMATED COST: \$ 38,934

The amount set forth above represents the TOTAL obligation of the
parties and is subject to the availability of funds. This amount may not
be exceeded without the express, written authorization of
PACNAVFACENGCOM.

> All charges associated with this agreement shall be billed to the
> Navy's accounting/appropriation code as follows: AA 1791804 70FA 000
> 00070 P 045924. CINCPACFLT will provide the NOAA Funds Manager
> complete funding detail and authorization on a separate funding
> document. CINCPACFLT agency location code is N00070.

NOAA shall submit electronic requests for payment via the Online Payment
and Collection System (OPAC). Complete funding equal to the above
budgeted amount is obligated and made available to NOAA in advance of
the services being provided. This advanced funding is subject to the
following fiscal-year limitations:

> Electronic payment requests may be made periodically (monthly,
> quarterly) as needed. Copies of the invoices supporting each
> electronic payment request shall be forwarded to CINCPACFLT within a
> reasonable time after the expenses have been incurred.

Points of Contact for each party to this agreement are as follows:

Program Manager, PACNAVFACENGCOM:

> Karen Sumida
>
> Environmental Compliance Division (Code 1811)
>
> 258 Makalapa Dr. STE 100
>
> Pearl Harbor Hawaii 96860-3134
>
> Tel: 474-7042
>
> Fax: 471-4519
>
> Project Manager, NOAA:
>
> Mr. Doug Helton
>
> NOAA Damage Assessment Center

7600. Sand Point Way, NE

Seattle, WA. 98103

Tel: 206-526-4563

Fax: 206-526-6665

> PACNAVFAC Financial Manager:
>
> Mr. Darren Uchima
>
> Project Manager Code 5014C
>
> 258 Makalapa Dr. STE 100
>
> Pearl Harbor Hawaii 96860-3134
>
> Tel: 471-8463
>
> Fax: 471-8464
>
> NOAA Funds Manager:

Ms. Michele McQuillan

National Oceanic & Atmospheric Administration

Damage Assessment Center

> N/ORCAx1, SSMC4, Rm. 10218
>
> 1305 East West Highway
>
> Silver Spring, MD 20910
>
> Telephone: (301) 713-3038 x177
>
> Fax: (301) 713-4387

VII\. [Procedures for Inspection/Quality Assurance]{.underline}

To the extent that contractor support services are acquired, NOAA shall
be responsible for ensuring contractor compliance with all terms and
conditions of its contract.

PACNAVFACENGCOM shall be responsible for reviewing and accepting work
products as provided by NOAA.

VIII. [Publication]{.underline}

Unless restrictions are specifically identified on the work product(s),
any and all information prepared or presented as a result of this
agreement may be used or released without restriction and at the
discretion of NOAA or PACNAVFACENGCOM.

IX\. [Public Affairs/Press Liaison]{.underline}

PACNAVFACENGCOM shall be the lead agency regarding the reporting of work
products to the public as outlined herein.

####  {#section .unnumbered}

#### X. [Data Rights]{.underline} {#x.-data-rights .unnumbered}

The Government shall retain all rights to data and special works
(multi-media presentations, etc) developed under the terms of this
agreement.

XI\. [Subsidiary Agreements]{.underline}

None

XII\. [Third Party Liability]{.underline}

Each party agrees that it will be responsible for its own acts, the acts
of its contractors and the results thereof and shall not be responsible
for the acts of the other party and the results thereof. The parties'
liability will be governed by the Federal Tort Claims Act (28 U.S.C.
2761 et seq.).

NOAA shall ensure that its contractors, subcontractors or consultants
maintain minimum insurance liability coverage as prescribed by the
Federal Acquisition Regulation.

XIII. [Other Provisions]{.underline}

      Nothing herein is intended to conflict with current NOAA or
      PACNAVFACENGCOM directives. If the terms of this agreement are
      inconsistent with existing directives of either of the agencies
      entering into this agreement, then those portions of this
      agreement which are determined to be inconsistent shall be
      invalid; but the remaining terms and conditions of this agreement
      not affected by inconsistency shall remain in full force and
      effect. At the first opportunity for review of the agreement, such
      changes as are deemed necessary will be accomplished by either an
      amendment to this agreement or by entering into a new agreement,
      whichever is deemed expedient to the interest of both parties.

      Should disagreement arise as to the interpretation of the
      provision of this agreement, or amendments and/or revisions
      thereto, that cannot be resolved at the operating level, the
      area(s) of disagreement shall be reduced to writing by each party
      and presented to the other party for consideration at least 30
      days prior to forwarding to respective higher quarters for
      appropriate resolution.

Nothing in this agreement shall be construed as obligating NOAA,
PACNAVFACENGCOM, or the United States Government to the expenditure of
funds or for the future payment of money in excess of that authorized by
law.

Officials Not to Benefit. No member of or delegate to Congress, or
resident Commissioner, shall be admitted to any share or part of this
Agreement or to any benefit that may arise therefrom, but this provision
shall not be construed to extend to this Agreement if made with a
corporation for its general benefit.

XIV\. [Termination and Amendment Clauses]{.underline}

The terms of this agreement will remain in effect until terminated by
(1) mutual agreement of the parties; (2) 30 day advanced written notice
by either party; or (3) the operation/terms of this agreement; whichever
shall first occur. Termination of this Agreement will not affect the
completion of any projects or activities that are ongoing at the time
one party provides written notice to the other party of their intent to
terminate. Any funds not expended or obligated to an ongoing project at
the time notice of termination is made shall be returned to
PACNAVFACENGCOM. All direct and indirect phasing out costs shall be paid
by the agency requesting the termination. Termination costs claimed
shall not exceed the actual costs incurred as a result of the
termination of the project.

This Agreement may be amended at any time by mutual consent of both
parties. Amendments shall be executed in writing and signed by both
parties. This agreement will be reviewed periodically, but not less than
annually. It may be subject to reconsideration at such other times as
may be required and as agreed to by the parties entering into the
agreement.

XV\. [Term of Agreement]{.underline}

This Agreement will become effective upon the date of the last signature
set forth below and remain in force and affect until the services are
completed or September 30, 2000, whichever is later. This agreement may
be extended upon written concurrence of both parties.

APPROVED:

For the U.S. Department of Defense

####### Pacific Naval Facilities Engineering Command

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

By Melvin Waki Date

Director

Environmental Division

For the National Oceanic and Atmospheric Administration:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

By David Kennedy Date

Director,

Office of Response and Restoration

## ATTACHMENT 01

## 

## TO THE

## INTERAGENCY AGREEMENT

**NO. 99-221**

## BETWEEN

> THE UNITED STATES DEPARTMENT OF COMMERCE
>
> **NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION**

### AND 

**THE UNITED STATES DEPARTMENT OF DEFENSE**

**PACIFIC NAVAL FACILITIES ENGINEERING COMMAND**

### 

**STATEMENT OF WORK**

**ENTITLED**

**"DEVELOPING A PRE-INCIDENT DAMAGE ASSESSMENT PLAN FOR NAVY TRUST
NATURAL RESOURCES IN GUAM."**

**STATEMENT OF WORK**

**"DEVELOPING A PRE-INCIDENT DAMAGE ASSESSMENT PLAN FOR NAVY TRUST
NATURAL RESOURCES IN GUAM."**

*July 2, 1999*

######## [Background:]{.underline} Naval land holdings on Guam contain substantial natural resources, many of which are both vulnerable and sensitive to spilled oil and hazardous substances (e.g. marine bird nesting sites, coral reefs, and productive intertidal flora and fauna). Naval operations on these islands involve the transportation and storage of bulk quantities of oil and hazardous substances, presenting the possibility of exposure of vulnerable natural resources to these materials in the event of a spill. Following a spill that impacts natural resources, a preassessment may be conducted to determine the need for a natural resource damage assessment. This requires that perishable data (e.g., oil, water, sediment and biological tissue samples,) and information such as photographs and videotape, be collected in a timely manner. The information collected soon after the spill is critical to designing assessment studies, initiating restoration planning, and may be used later as evidence in support of a damage claim. However, collecting appropriate, timely, and litigation-quality data following a spill requires an investment in pre-spill planning to insure that the information collected will be usable in a natural resource damage context. 

**[Proposal:]{.underline}** To address the need for pre-spill NRDA
planning, the NOAA Damage Assessment Center (DAC), along with its prime
NRDA contractor, Industrial Economics, Incorporated (IEc), proposes to
develop a pre-spill NRDA plan for US Navy facilities in Guam. This plan
will assist the Navy in fulfilling their trustee role by helping to 1)
evaluate oil, chemical, and grounding incidents from a NRDA perspective,
2) determine the need for initiating an NRDA preassessment in the event
of an incident; and 2) design and implement appropriate preassessment
activities. The plan will be concise (approximately twenty pages in
length plus appendices) and will include, for example, information on
the following topics:

1.  Relevant legal framework;

2.  Trustee roles and responsibilities (Navy, other federal or
    territorial government);

3.  Early decision making (whether or not to initiate a preassessment);

4.  Legal and evidentiary requirements;

5.  General purpose and summary of NRDA process;

6.  Natural resources at risk in and around Naval facilities on Guam;

7.  Early sampling strategies, methods, and techniques;

8.  Analytical considerations;

9.  Logistical, equipment, and training needs;

10. Funding; and

11. Relevant contacts (within Navy, among co-Trustees and experts).

NOAA proposes that a site visit to each facility be conducted by Doug
Helton from NOAA and Tim Reilly and Jon Grant from IEc to collect
information on the particular needs of each facility and local natural
resources. Deliverables for this activity will include draft and final
versions of the pre-spill NRDA plan. Additional IEc staff members and
NOAA experts will participate in developing and reviewing the plans.
Finally, NOAA proposes that PCCI staff (including a Project and Chief
Engineer) review the final plans to ensure consistency with existing
Navy response and NRDA plans.

The level of effort for the project team is detailed in Exhibit 2 of
this work plan. Travel costs are detailed in Exhibit 3. The total
proposed budget is summarized in Exhibit 4.

**[Optional Training:]{.underline}** At the Navy\'s option, NOAA
proposes to conduct a one-day natural resource damage assessment
training course to Navy personnel. The course will provide an overview
of regulatory and technical considerations associated with the planning
and implementation of NRDAs. The NOSC plan entitled, \"COMNAVMARIANAS
Oil and Hazardous Substances (OHS) Pollution Contingency Plan\" (May
1998), which was prepared by the Pacific Division Naval Facilities
Engineering Command recommends NRDA training to Naval personnel as a
preparedness measure for effectively implementing natural resource
damage assessments. This training course would constitute a measure to
address this recommendation. Course training materials will be provided
during the training course. The level of effort for the project team is
detailed in Exhibit 2 of this work plan. Other direct costs and travel
costs for this optional activity are detailed in the budget accompanying
this work plan.

######### Delivery Schedule

NOAA proposes to submit deliverables on the date identified in Exhibit 1
(next page). This delivery schedule is based on the Navy providing NOAA
with 1) a fully executed Interagency Agreement (i.e. notice to proceed)
and 2) adequate funds are certified as available no later than July 1,
1999. Receipt of these documents/assurances later than this date will
result in project deliverable date delays that correspond to the delayed
notice to proceed (i.e. a notice to proceed issued on August 1, 1999
will result in a one-month delay in the deliverable date of each work
product). These are proposed dates and the deliverable dates can be
adjusted to better fit the Navy's needs and schedule.

**[Deliverable Formats:]{.underline}**

NOAA proposes that draft documents be delivered in unbound format. Final
documents will be delivered bound with a camera-ready original. Both
draft and final reports will also be delivered electronically in Word
for Windows, Version 7.0. These are proposed formats and the formats can
be adjusted to better fit the Navy's needs.

+-------------------------+---------------+--------+--------+---------+
| **Exhibit 1**           |               |        |        |         |
|                         |               |        |        |         |
| **Proposed Delivery     |               |        |        |         |
| Schedule for Navy       |               |        |        |         |
| Pre-spill Planning**    |               |        |        |         |
+-------------------------+---------------+--------+--------+---------+
| **Deliverable**         | **Due Date**  | **Unb  | **B    | **Elect |
|                         |               | ound** | ound** | ronic** |
+-------------------------+---------------+--------+--------+---------+
| **Conduct On-Site       | 30 September  | N/A    | N/A    | N/A     |
| Visits to Guam,**       | 1999          |        |        |         |
+-------------------------+---------------+--------+--------+---------+
| **Conduct Training      | 30 September  | 1      | 15     | 1       |
| Courses at Guam         | 1999          |        |        |         |
| (Optional)**            |               |        |        |         |
+-------------------------+---------------+--------+--------+---------+
| **Draft Pre-Spill NRDA  | 19 November   | 1      | 5      | 1       |
| Plan for Guam**         | 1999          |        |        |         |
+-------------------------+---------------+--------+--------+---------+
| **Final Pre-Spill NRDA  | 18 February   | 1      | 5      | 1       |
| Plan for Guam**         | 2000          |        |        |         |
+-------------------------+---------------+--------+--------+---------+

+-------------------------+-----------+-----------+--------+---------+
| **Exhibit 2**           |           |           |        |         |
|                         |           |           |        |         |
| **Proposed Level of     |           |           |        |         |
| Effort (hours) for Navy |           |           |        |         |
| Pre-spill Planning**    |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+
| **Deliverable**         | **NOAA**  | **IEc**   | **     | **      |
|                         |           |           | PCCI** | Total** |
+-------------------------+-----------+-----------+--------+---------+
| **Develop Pre-spill     | 35        | 206.5     | 10.5   | 252     |
| Plans for US Navy       |           |           |        |         |
| facilities in Guam**    |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+
| **Conduct Training      | 14        | 78        | 0      | 92      |
| Course and prepare      |           |           |        |         |
| Training Materials      |           |           |        |         |
| (Optional)**            |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+
| **Total**               | 49        | 284.5     | 10.5   | 344     |
+-------------------------+-----------+-----------+--------+---------+
|                         |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+

+-------------------------+-----------+-----------+--------+---------+
| **Exhibit 3**           |           |           |        |         |
|                         |           |           |        |         |
| **Proposed Travel for   |           |           |        |         |
| Navy Pre-spill          |           |           |        |         |
| Planning**              |           |           |        |         |
|                         |           |           |        |         |
| **(assumes that travel  |           |           |        |         |
| is combined with        |           |           |        |         |
| project in Hawaii)**    |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+
| **Activity**            | **IEc**   | **NOAA**  | **     | **      |
|                         |           |           | PCCI** | Total** |
+-------------------------+-----------+-----------+--------+---------+
| **Develop Pre-spill     | \$3,795   | \$1,890   | 0      | \$5,685 |
| Plans for US Navy       |           |           |        |         |
| facilities in Guam**    |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+
| **Conduct Training      | \$500     | \$308     | 0      | \$808   |
| Courses and prepare     |           |           |        |         |
| Training Materials      |           |           |        |         |
| (Optional)**            |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+
| **Total**               | \$4,295   | \$2,198   |        | \$6,493 |
+-------------------------+-----------+-----------+--------+---------+
|                         |           |           |        |         |
+-------------------------+-----------+-----------+--------+---------+

+-------------------------+----------------+-----------+--------------+
| **Exhibit 4**           |                |           |              |
|                         |                |           |              |
| **Proposed Budget for   |                |           |              |
| Navy Pre-spill          |                |           |              |
| Planning**              |                |           |              |
+-------------------------+----------------+-----------+--------------+
| **Activity**            | **Contracts**  | **NOAA**  | **Total**    |
|                         |                |           |              |
|                         | **(IEc and     |           |              |
|                         | PCCI)**        |           |              |
+-------------------------+----------------+-----------+--------------+
| **Develop Pre-spill     | \$20,055       | \$9,604   | \$29,659     |
| Plans for US Navy       |                |           |              |
| facilities in Guam**    |                |           |              |
+-------------------------+----------------+-----------+--------------+
| **Conduct Training      | \$5,881        | \$3,394   | \$9,275      |
| Courses and prepare     |                |           |              |
| Training Materials      |                |           |              |
| (Optional)**            |                |           |              |
+-------------------------+----------------+-----------+--------------+
| **Total**               | \$25,936       | \$12,998  | \$38,934     |
+-------------------------+----------------+-----------+--------------+
|                         |                |           |              |
+-------------------------+----------------+-----------+--------------+