U.S. Department 

of Homeland Security

United States 

Coast Guard 

Director 

United States Coast Guard 

National Pollution Funds Center 

Natural Resource Damage (NRD) 

Claims Division 

 U.S. Coast Guard Stop 7100 

4200 Wilson Blvd, Suite 1000 

Arlington, VA 20598-1804 

Staff Symbol: (CN) 

Phone: 

E-mail: @uscg.mil

16480 

January 16, 2013 

Tony Penn 

NOAA Office of Response and Restoration 

SMC4, RM. 10317 

1305 East West Highway 

Silver Spring, MD 20910

Re: Claim Number N10036-OC15 - Deepwater Horizon Oil Spill 2013/14 Lost Use 

Assessment 

Dear Mr. Penn: 

The National Pollution Funds Center (NPFC) has reviewed the National Oceanic 

Atmospheric Administration’s (NOAA) claim for 2013/14 costs to assess lost human use 

of natural resources resulting from the Deepwater Horizon oil spill (claim number 

N10036-OC15). We have determined that the claimed amount of $20,074,000 is 

compensable under the Oil Pollution Act (OPA, 33 U.S.C. 2701 et seq.) and the OPA 

regulations (33 C.F.R. Part 136 and 15 C.F.R. 990 et seq.). The basis of our decision 

follows. 

 

Summary of the Incident 

On April 20, 2010, the Deepwater Horizon mobile offshore drilling unit exploded and 

sank, discharging an estimated 134.41 to 210.02 million gallons of oil into the Gulf of 

Mexico, until the well was capped on July 15, 2012. Responders to the discharge 

dispensed approximately 1.84 million gallons of dispersants3

 at the discharge site in an 

attempt to keep the oil or delay the oil from reaching the shoreline and complex and 

sensitive ecosystems of the Gulf Coast. The U.S. Coast Guard designated the source of 

the spill as an offshore facility located on an area leased by BP Exploration & Production, 

Inc. (BP). BP accepted the designation and advertised its OPA claims process. 

 

1

 http://www.bp.com/sectiongenericarticle800.do?categoryId=903674&contentId=7067698 2

 "Deepwater Horizon Oil Spill Early Restoration Plan." Gulf Spill Restoration Publications. National 

Oceanic Atmospheric Administration, December 1, 2011. Web. March 13, 2012. 

<http://www.gulfspillrestoration.noaa.gov/wp-content/uploads/2011/12/Final-ERP-121311-print-versionupdate.pdf>. 

Claim Number: N10036-OC15 

1 of 14 

3

 1.07 million on the surface and 771,000 sub-sea. Deepwater Horizon Incident Joint Information Center. 

2010. The Ongoing Administration-Wide Response to the Deepwater BP Oil Spill. 

http://www.restorethegulf.gov/release/2010/08/06/ongoing-administrationwide-response-deepwater-bpoil-spill.
Following the spill, NOAA, along with the Department of the Interior and five Gulf 

Coast states4, acting as natural resource trustees designated under OPA and appropriate 

state laws, initiated an assessment of natural resource damages resulting from the 

discharges and response to discharges of oil. By the August-September 2010 period, the 

trustees observed over 950 miles of oiled shoreline habitat, 400 oiled sea turtles, and over 

1,500 oiled birds5. The trustees identified 13 resource/habitat injury categories, one of 

which is lost human use. Each resource/habitat is interconnected with one or more of the 

others, with adverse impacts to one resource/habitat likely to reverberate throughout the 

larger Gulf of Mexico ecosystem. For the human use component, the interconnected 

resource/habitat categories are related to, and supportive of, direct lost human use and 

passive use6,7. 

History of Human Lost Use Assessment 

Human use losses include disruptions in recreational boating, fishing, beach activities, 

and bird watching. For instance, both residents and non-residents of Gulf States make 

more than 150 million recreational trips to the Gulf of Mexico each year and in 2009 

approximately 23 million of these recreational trips were individual fishing trips7,8

. The 

Deepwater Horizon Oil Spill caused beach and fishery closures to protect the 

environment and public health. On September 9, 2010, the Unified Command reported 

39,885 square miles of Gulf of Mexico federal waters remained closed to fishing9; and 

NOAA identified lost human use opportunities associated with these closures, including 

fishing, swimming, beach-going, and viewing of birds and wildlife10. The trustees began 

working together to develop and implement a total value assessment11 to determine the 

nature and extent of the losses to both direct and passive use in 2010. Based on current 

data residents and non-residents of Gulf States continue to be negatively impacted by the 

spill. Therefore, a need for continued data collection to fully account for the losses 

exists. 

 

4

 Louisiana, Mississippi, Alabama, Florida, and Texas 

5

 Federal Register, Vol. 75, No. 190, Pgs. 60800-60802, October 1, 2010: 

http://edocket.access.gpo.gov/2010/pdf/2010-24706.pdf 6

 Passive or non use losses are the value that people place on injured natural resources that do not have a 

direct use. 7

 Natural Resource Damage Assessment, April 2012 Status Update for the Deepwater Horizon Oil Spill

(http://www.gulfspillrestoration.noaa.gov/wpcontent/uploads/FINAL_NRDA_StatusUpdate_April2012.pdf) 8

 NOAA National Marine Fisheries Service. 2010. Fisheries of the United States 2009. 

http://www.st.nmfs.noaa.gov/st1/fus/fus09/index.html 9

 Unified Command for the BP Oil Spill, “The Ongoing Administration-Wide Response to the Deepwater 

BP Oil Spill,” September 9, 2010: http://www.restorethegulf.gov/release/2010/09/09/ongoingadministration-wide-response-deepwater-bp-oil-spill 10 Federal Register, Vol. 75, No. 190, Pgs. 60800-60802, October 1, 2010: 

http://edocket.access.gpo.gov/2010/pdf/2010-24706.pdf 

Claim Number: N10036-OC15 

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11 NOAA will draft, test, and implement a survey to determine the monetary value of direct and passive 

use losses using stated preference methods. Stated preference methods may include conjoint analyses, 

contingent valuation and stated choice techniques. 
The trustees estimate that the magnitude of losses for recreational resources far exceeds 

the lost human use assessment cost12. 

The trustees adopted a three phased approach for the total value assessment. In phase 

113, the trustees began their total value assessment. The effort was relatively small in this 

phase as the trustees began to put together their team of experts in the fields of 

environmental and natural resources economics, survey research, econometrics, and other 

social sciences; and began to define the tasks for their assessment. On August 15, 2012, 

the NPFC received a claim (N10036-OC14) for phase 1 of the total value survey from 

NOAA totaling $3,846,347.56. This claim is for NOAA past costs incurred from July 

2010 - September 2011. The NPFC is currently adjudicating claim N10036-OC14 for 

phase 1. 

In phase 214, the trustees further developed the total value assessment by conducting 

focus groups, one-on-one interviews, and pre-tests. On February 15, 2012, the NPFC 

received a claim (N10036-OC06) for phase 2 from NOAA for $32,980,00015 to assess 

human use losses resulting from the Deepwater Horizon Oil Spill. The costs for this 

phase included funding for both direct recreational use assessments, which support in part 

a total value assessment, and funding for a total value assessment. The plan, which 

formed the basis of the claim, identified potential types of human use losses resulting 

from the incident, the overall approach to assessing and scaling injury, and 12 specific 

Tasks for assessing the potential direct use and total value losses. The NPFC provided 

NOAA with $32,980,00015 to implement this plan. 

The increased cost for the total value component of the plan reflects trustee efforts to 

collect more data, analyze the data, and then use the data analysis for further survey 

development. To date, the trustees’ lost human use assessment has evaluated the direct 

losses16 to recreation use at boat ramps, fishing piers, and shoreline areas used for fishing 

and other recreational activities (e.g., swimming, sunbathing, etc.) and losses of passive 

use of the injured natural resources to the American public. The trustees are using 

several sources of data to establish baseline17. For example, monthly data for 

recreational fishing trips on private boats, charter boats, and from shore are available for 

publically accessible sites along the Gulf Coast from 1981 to the present18. Data are also 

available for the number of fishing trips in the United States by state and include trips by 

 

12 Letter dated December 12, 2012 from NOAA to NPFC responding to request for additional information 13 Claim to NPFC N10036-OC14 ($3,846,347.56) 14 Claim to NPFC N10036-OC06 ($32,980,000) 

15 $9.48 million of this claim was claimed for the total value assessment 

16 Tasks to evaluate direct losses using benefit transfer methods will be used to validate the total value 

assessment 17 Natural Resource Damage Assessment, April 2012 Status Update for the Deepwater Horizon Oil Spill

(http://www.gulfspillrestoration.noaa.gov/wpcontent/uploads/FINAL_NRDA_StatusUpdate_April2012.pdf

Claim Number: N10036-OC15 

3 of 14 

18 NOAA National Marine Fisheries Service. 2011. Recreational Fisheries Statistics Queries. National 

Marine Fisheries Service, Fisheries Statistics Division 

www.st.nmfs.noaa.gov/st1/recreational/queries/index.html
Gulf Coast state residents and non-residents19. The trustees state their data collected to 

date indicates an ongoing negative impact from the spill upon recreational activities and 

to residents and non-residents of the affected Gulf states20. The trustees assert that based 

on preliminary data collection, a need for continued data collection to fully account for 

the loss exists. 

Claim N10036-OC15 (Phase 3) 

Phase 321, the subject of this claim determination, is what is expected to be the final 

phase of the assessment and occurs over two years. The trustees will refine the survey 

using up to date injury information and results from pre-tests and previous survey 

administration. Once the survey is final, it will be administered to the largest sample 

group to date across the country22, which is a significant and costly effort. Also 

significant will be the quality assurance/quality control of the data, analysis of the data, 

writing reports that include summarizing all the work, and reviewing the reports. 

On November 1, 2012, the NPFC received a claim from NOAA (N10036-OC15) for 

phase 3 totaling $35,957,000 to continue assessment of human use losses resulting from 

the Deepwater Horizon incident through 2013/14. This claim included costs associated 

with Tasks 1-8, which are for direct/recreational use assessments, and Tasks 9-12, which 

are for a total use assessment. The NPFC notified BP that it had received this claim from 

NOAA on November 27, 201223. Then on January 7, 2013 BP notified the NPFC that 

they intend to pay $15,883,000 for tasks 1-8 of NOAA’s claim. On January 9, 2013, 

NOAA confirmed that BP provided this amount and revised their sum certain to 

$20,074,00024. The revised sum certain reflects a need to continue to develop and refine 

the total value surveys and implementation plan; and review and evaluate related 

information25 by a team of highly skilled and experienced experts in the fields of 

environmental and natural resources economics, survey research, econometrics, and other 

social sciences. NOAA will also implement the final survey, analyze all data collected, 

and develop econometric and statistical models to inform injury quantification. 

The remainder of this determination presents NPFC findings with respect to this claim. 

 

19 U.S. Fish and Wildlife Service and U.S. Census Bureau. 2006. 2006 National Survey of Fishing, 

Hunting, and Wildlife-Associated Recreation. www.census.gov/prod/2008pubs/fhw06-nat.pdf. 20 Letter dated December 12, 2012 from Mr. Tony Penn (NOAA) to Mr. Fredy Hernandez (NPFC) 

21 Claim to NPFC N10036-OC15 ($20,074,000) 

22 Email dated January 9, 2013 from Tony Penn (NOAA) to Fredy Hernandez (NPFC) responding to a 

request for additional information 23 Letter from NPFC to BP dated November 27, 2012 

24 Amount claimed ($35,957,000) – amount paid ($15,883,000) = revised sum certain ($20,074,000) 

Claim Number: N10036-OC15 

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25 Including papers and studies using stated preference methods, background studies on economic activity 

related to marine recreation and total value, and impacts of the spill on tourism and consumer prices for 

seafood 
Jurisdictional Information 

The NPFC first considered whether the claimed damages arose from an incident as 

defined by OPA. 33 U.S.C. §2701 et seq. To be covered, the incident must involve a 

discharge of oil or a substantial threat of discharge of oil from a vessel or facility into 

navigable waters of the United States after August 18, 1990. Based on the information 

provided by NOAA in its claim, as summarized above, the NPFC finds that this claim is 

for natural resource damages resulting from an OPA incident. 

Claimant Eligibility 

Federal natural resource trustees are designated pursuant to OPA by the President. 33 

U.S.C. §2706(b)(2). Designated trustees have authority to assess damages to natural 

resources under their trusteeship (33 U.S.C. §2706(c)(1)(A)) and may present claims to 

the Oil Spill Liability Trust Fund (OSLTF) for uncompensated natural resource damages 

(33 C.F.R. §136.207), which include the reasonable cost of assessing those damages. 33 

U.S.C. §2701(5); 33 U.S.C. § 2706(d)(1)(A)-(C). 

This claim for natural resource damage assessment costs was submitted by NOAA. 

NOAA, under the authority of the Secretary of Commerce, is an appropriate federal 

natural resource trustees pursuant to the President’s designation of federal trustees under 

OPA, Executive Order 12777 (56 Fed. Reg. 54757, October 22, 1991), and Subpart G of 

the National Oil and Hazardous Substances Pollution Contingency Plan (40 C.F.R. 

§300.600). 

General Claim Presentment Requirements

Claims to the Fund must be presented in writing to the Director, NPFC, within three 

years after the date on which the injury and its connection with the incident in question 

were reasonably discoverable with the exercise of due care, or within three years from the 

date of completion of the natural resource damage assessment under OPA, whichever is 

later. 33 U.S.C. §2712(h)(2), 33 C.F.R. §136.101(a)(1)(ii). This claim is for costs to 

continue to develop and implement a damage assessment plan to determine the nature 

and extent of lost human use of natural resources resulting from the incident. The 

assessment was not complete when the claim was received on November 1, 2012; 

therefore, the claim was received within the period of limitations for claims. 

Natural resource damage claims presented to the NPFC must be based on a plan that the 

public has had an opportunity to review. 33 U.S.C. §2706(c)(5). On July 20, 2012, 

NOAA published its 2013/14 Lost Human Use Assessment Plan that forms the basis of 

this claim on the NOAA Gulf Spill Restoration webpage26, thereby meeting this 

requirement. 

 

Claim Number: N10036-OC15 

5 of 14 

26 http://www.gulfspillrestoration.noaa.gov/wp-content/uploads/2012/08/Assess-Plan-Demand-2-forUpfront-Funding_Human-Use_DH_Phase2_final-072512-with-budget.pdf 
Claim Presentment to the Responsible Party 

With certain exceptions, claims to the NPFC for damages must be presented first to the 

responsible party (RP). 33 U.S.C. §2713(a). If a claim is presented in accordance with 

§2713(a) and is not settled by payment by any person within 90 days after the date upon 

which the claim was presented, the claimant may elect to commence an action in court or 

present the claim to the OSLTF. 33 U.S.C. §2713(c)(2). 

The claim record indicates that NOAA invited BP to participate in the natural resource 

damage assessment for the Deepwater Horizon oil spill by letter dated September 27, 

201027. Subsequent cooperative efforts between NOAA and BP (or their 

representatives), including meetings and/or correspondence in May and June 2010, 

resulted in general agreement to pursue potential direct/recreational losses and 

disagreement on whether and/or how to quantify passive use losses28. In February and 

August 2012, BP responded to a NOAA request to fund implementation of NOAA’s 

2012 lost use assessment plan by conditionally approving tasks involving assessment of 

direct/recreational losses, and declining to pay for tasks involving assessment of passive 

use losses29. NOAA proceeded to implement its 2012 lost use assessment plan with 

funding from the NPFC, and with limited coordination with BP, in accordance with 15 

C.F.R. §990.1430. 

On August 1, 201231, NOAA presented its 2013/14 lost use assessment plan and claim 

for implementation costs to BP32. This plan, representing a continuation of the 2012 plan 

to assess both direct/recreational and passive use losses, describes assessment efforts and 

natural resource injuries determined to date, potential types of human use losses resulting 

from these injuries, methods (presented as 12 separate tasks) that would be used to 

determine lost human uses, performance standards, assessment team development, 

management, and support, and anticipated deliverables. The claimed costs are for the 24-

month period from January 2013 through December 2014, and are presented by quarter 

and each of the 12 tasks for “NOAA Staff”, “Consultants/Contracts” and “Travel”. BP 

responded to NOAA by letter on October 25, 201233, agreeing to fund the 

direct/recreational plan tasks under certain conditions and, again, declining to tasks to 

assess passive use losses34. 

 

27 Letter dated September 27, 2010 from NOAA to BP 

28 Letter dated September 21, 2012 from NOAA to BP 

29 Letters dated February 8, 2012 and August 3, 2012 from BP to NOAA responding to request for 

funding 30 Section 990.14(c)(4) of the NRD regulations provide that the trustees decide the scope of the RP’s 

participation and, under section 990.14(c)(5)(iii), may consider such factors as “the willingness of 

responsible parties to fund assessment activities”. Under section 990.14(c)(4) , the trustees have sole 

authority to make determinations regarding injury and restoration. 31 Letter dated July 27, 2012 from NOAA to BP transmitting their Interim, Partial Claim for Assessment 

Costs (exhibit 4) 32 Letter dated July 27, 2012 from NOAA to BP transmitting their Interim, Partial Claim for Assessment 

Costs (exhibit 4) 33 Letter dated October 25, 2012 from BP to NOAA (exhibit 5) 

Claim Number: N10036-OC15 

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34 Letters dated February 8, 2012 and August 3, 2012 from BP to NOAA responding to request for funding 
On November 1, 2012, more than 90 days after providing its 2013/14 assessment plan 

and claim for implementation costs to BP, BP had not provided NOAA any funding to 

implement the 2013/14 lost use assessment plan. Accordingly, NOAA presented its 

claim to the NPFC. On January 7, 2013 BP responded to the NPFC’s notification letter35

acknowledging the claim had been presented to the NPFC and BP intended to fund only 

the direct/recreational plan tasks and declined to fund tasks to assess passive use losses36. 

Based on the above facts, the NPFC finds that NOAA’s claim to the NPFC for funds to 

implement its 2013/14 Lost Human Use Assessment Plan was presented to BP. 

Claimant's Burden of Proof and Adherence to NRDA Regulations 

Under OPA, trustees bear the burden of proving their entitlement to the amount claimed 

for compensation of natural resource damages. 33 C.F.R. §136.105. Any determination 

or assessment of natural resources damages under OPA by a trustee in accordance with 

the regulations at 15 C.F.R. Part 990 have the force and effect of a rebuttable 

presumption on behalf of the trustee in any administrative or judicial proceeding under 

this Act. 33 U.S.C. §2706 (e)(2); 15 C.F.R. §990.13. Accordingly, trustee determinations 

made in accordance with 15 C.F.R. 990 et seq. are initially presumed correct, but the 

presumption of correctness may be rebutted if the rebuttal evidence is of sufficient 

weight. 

After careful review of the claim and supporting documents, the NPFC finds that NOAA 

followed 15 C.F.R. 990 et seq. Specifically, they coordinated actions with other trustees 

to ensure no double recovery of damages, issued a notice of intent to conduct restoration 

planning, invited BP to participate in the natural resource damage assessment, prepared a 

plan that was reviewed by the public, and are maintaining an administrative record that is 

available for public review. 

NPFC Review of Claimed Activity and Costs 

NOAA claims $20,074,000 to implement its tasks 9-12 of its 2013/14 Lost Human Use 

Assessment Plan to determine the total value of direct/recreation and passive human use 

losses of natural resources injured by the spill. The 2013/14 plan represents a general 

continuation of the 2012 lost human use plan. Both plans describe 12 tasks, with tasks 1-

8 focused on determining direct/recreational losses and tasks 9-12 focused on 

determining the total value of lost human use, including both direct/recreation use and 

passive use. Direct use assessment tasks 1-8 are based on generally accepted natural 

resource damage assessment methods that involve on-site sampling, surveys, and benefits 

transfer models to determine the number and dollar value of lost and/or diminished value 

trips resulting from the spill37. Under the total value assessment tasks 9-12, NOAA will 

draft, test, and implement a survey to determine the monetary value of direct and passive 

 

35 Letter dated November 27, 2012 from NPFC to BP 

36 Letter dated December 20, 2012 from Bea Strong (BP) to Jim Hoff (NPFC) 

Claim Number: N10036-OC15 

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37 Data obtained from Tasks 1-8 will be used to validate the total value assessment. 
use losses using stated preference methods38. The scope of the surveys/assessment will 

be national, given the magnitude of the spill. NOAA intends for the direct/recreational 

use loss and total value losses tasks to be complimentary, whereby the direct/recreational 

assessment tasks will be used to inform and validate part of the injury scenario for the 

total value survey39. 

The NPFC is aware that use of survey-based techniques to determine the value of direct 

and/or passive use losses has been subject to debate among economists and injury 

assessment practitioners, which NOAA acknowledges40. In correspondence with NOAA, 

BP stated that proposed survey-based assessment of total value losses (including passive 

use loss) was not appropriate under OPA. However, survey-based valuation methods, are 

permitted for use in damage assessments under both the CERCLA41 and OPA (15 C.F.R. 

Part 990 natural resource damage regulations. In particular, the OPA natural resource 

damage regulations specifically allow trustees to estimate the dollar value of lost services 

where the trustees determine that such an approach is practicable and neither resource-toresource nor service-to-service approaches are appropriate. 15 C.F.R. §990.53(3). Such 

methods are also subject to the standards for acceptable procedures in the OPA NRD 

regulations. 15 C.F.R. §990.27. 

NOAA’s claim documents their compliance with both 15 C.F.R. §990.53 and 15 C.F.R. 

§990.27. Specifically, section 3.2 of NOAA’s 2013/14 assessment plan states that the 

trustees considered alternate resource-to-resource and service-to-service approaches, but 

determined that addressing the public’s lost value through replacement projects without 

an explicit measure of value was not appropriate given the size of the spill and potential 

magnitude of passive use losses42,43. Further, section 3.0 of NOAA’s 2013/14 

assessment plan states that the trustees considered the criteria set forth in 15 C.F.R. 

§990.27 and determined that the unprecedented geographic scale and complexity of the 

spill warrants a combination of assessment procedures44 that are more complex, but offer 

reliable and valid information relevant to the type and scale of restoration necessary for 

the level of potential injury45. 

NPFC is also aware of BP’s concern that NOAA’s proposed assessment of passive losses 

is not appropriate46. However, natural resource damages under both CERCLA and OPA 

regulations include the loss of use of natural resources, which have been validated by the 

courts. State of Ohio v. U.S. Depart. of the Interior, 880 F. 2d 432, 475 (C.A.D.C. 1989) 

(When the injured resource is traded in a market, the lost use value is the diminution in 

 

38 Stated preference methods may include conjoint analyses, contingent valuation and stated choice 

techniques . 

39 Letter from NOAA to NPFC dated March 5, 2012 and phone conversation with Norman Meade 

(NOAA) on December 19, 2012 40 http://www.darrp.noaa.gov/economics/tools.html 41 43 C.F.R Part §11 (1987) 42 NOAA claim section 3.2 GENERAL APPROACH TO THE STUDY 

43 Letter dated March 5, 2012 from NOAA to NPFC responding to request for additional information 

44 Field, behavioral laboratory, model and/or literature-based methods 45 NOAA claim section 3.0 LOST HUMAN USE ASSESSMENT PLAN 

Claim Number: N10036-OC15 

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46 Letters dated February 8, 2012 and August 3, 2012 from BP to NOAA responding to request for 

funding 
market price. When that is not precisely the case, but similar resources are traded in a 

market, an appraisal technique may be used to determine damages. When, however 

neither of these situations obtains the market value, nonmarket resource methodologies 

are available. One of these is contingent valuation.) See also General Electric Co. v . 

Department of Commerce, 128 F.3d 767, 772 (C.A.D.C. 1997) (NOAA did not ignore the 

research panel’s warning that contingent valuation studies must be conducted subject to 

stringent standards nor did it ignore criticisms of contingent valuation but simply gave 

trustees discretion to use contingent valuation so long as the technique produced valid 

and reliable results for a particular incident). 

 

BP also expressed concern that NOAA’s proposed use of stated preference methods is 

premature and may provide respondents with inaccurate and incomplete information 

about the injury and its recovery. NOAA’s addresses this concern, by using a 

conservative approach to developing total value surveys, where experts will only use 

confirmed resource injury data (e.g., miles of shoreline oiled and oiled birds recovered) 

where results have a high degree of certainty47. NOAA further states that it will not 

implement the final total value survey until late 2013/early 2014, when NOAA expects 

the results of the natural resource damage assessments to be sufficient and appropriate for 

inclusion in the surveys48. 

On November 27, 2012 the NPFC requested that NOAA provide additional information 

including (1) a summary accounting of funds provided to NOAA for claim N10036-

OC06 and (2) a justification of the scope and scale of assessment efforts claimed. On 

December 12, 2012 NOAA responded by saying that to date (1) NOAA has incurred or 

obligated all $32m49 provided by the NPFC for claim N10036-OC06, that costs exceeded 

their best estimates50 and were required to use internal funding to continue the 

assessment and (2) that the magnitude of losses, for recreational impacts alone, far 

exceed the lost human use assessment costs, both past and expected future costs. 

Residents and non-residents of Gulf States continue to be negatively impacted by the 

spill. Therefore, a need for continued data collection to fully account for the losses exists. 

NPFC reviewed the submission to determine how the costs claimed were determined with 

respect to the work proposed to be performed. 

The cost to implement tasks 9-12 of NOAA’s Lost Human Use Assessment Plan is 

$20,074,000 which includes costs for consultants/contractors, NOAA labor, and travel. 

NOAA assembled a team of highly skilled and experienced professionals/experts in the 

fields of environmental and natural resource economics, survey research, psychologists, 

and econometrics to develop and implement the assessment plan. Costs claimed reflect 

the magnitude and spatial extent of the spill, as well as the number and location of 

consultant/contractors and NOAA staff that are required for the assessment. 

 

47 Email dated December 19, 2012 from Tony Penn (NOAA) to Fredy Hernandez (NPFC) 48 Letter dated December 12, 2012 from NOAA to NPFC responding to request for additional information 

49 $9.5m of the $32m claimed was for total value assessment 

Claim Number: N10036-OC15 

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50 Letter dated December 12, 2012 from NOAA to NPFC indicated that costs for FY 2012 totaled $34.8m 
After reviewing the claim and considering BP’s concerns, the NPFC has determined that 

(1) proposed survey-based valuation methods are in accordance with 15 C.F.R. §§990.27 

and 990.53, and (2) claimed costs are reasonable and appropriate given the spill size and 

potential for injury. 33 U.S.C. §2706(d)(1)(C), 33 C.F.R. §136.211. 

Revolving Trust Fund and Return of Unused Funds to the OSLTF 

As established by OPA (33 U.S.C. §2706(f)) and NRDA regulations (15 C.F.R. §990.65), 

sums recovered by trustees for natural resource damages must be retained by the trustees 

in a revolving trust account. For purposes of this claim, the NPFC will deposit funds into 

the Damage Assessment Restoration and Revolving Fund Account managed by NOAA. 

All unused funds, shall be returned to the OSLTF in a timely basis and no later than six 

months from the completion of the assessment as described in this determination in 

accordance with 15 C.F.R. §990.65. 

Cost Documentation, Progress Reporting, and Final Report

As the claimant, NOAA shall ensure that all expenditures of OSLTF funds are 

documented appropriately and spent according to the Lost Human Use Assessment Plan 

as approved in this determination. Any funds not spent or appropriately documented 

shall be returned to the Fund. 

One year from the date of this determination, and annually thereafter, NOAA shall 

provide the NPFC with a report on the status of implementation and expenditures. These 

annual progress reports should include: 

1. Certification by NOAA that all assessment activities have been conducted in 

accordance with the Lost Human Use Assessment Plan as approved in this 

determination; 

2. A progress report that includes a description of work accomplished, timeline for 

future activities, and any unexpected problems incurred during implementation; 

3. A summary of expenditures by category (i.e., labor, consultant/contractors, and 

travel); and 

4. A narrative description of the work accomplished by each individual and how that 

work fits into the overall progress for the year. Enough detail should be included to 

determine reasonableness of costs for each employee when cost documentation is 

received with the final report. 

In addition to annual reports NOAA shall submit a final progress report within 120 days 

of the date that plan implementation is complete. This report should include: 

1. Certification by NOAA that all expenditures of OSLTF funds were in accordance 

with the plan as approved by the NPFC; 

2. A summary of findings; 

3. Copies of final reports and/or studies; 

4. Documentation of OSLTF funds remaining in the Revolving Trust Fund for this 

claim, including account balance and interest earned; and 

Claim Number: N10036-OC15 

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5. Documentation of all expenditures as follows: 

a. Labor: For each employee – 

i. A narrative description of the work accomplished by each individual and how 

that work fit into the plan. Enough detail should be included to determine 

reasonableness of costs; and 

ii. The number of hours worked, labor rate, and indirect rate. An explanation of 

indirect rate expenditures, if any, will be necessary; 

b. Travel: Paid travel reimbursement vouchers and receipts; 

c. Contract: Activities undertaken, lists of deliverables, and contract invoices and 

receipts; 

d. Purchases/Expendables: Invoices and receipts, along with an explanation of 

costs; and 

e. Government Equipment: Documentation of costs, including the rate (i.e., hourly, 

weekly) and time for all equipment used for which costs were incurred. 

With the final report(s), the NPFC will reconcile costs and all remaining funds and/or 

inadequately documented costs will be returned to the OSLTF. 

The NPFC has prepared standardized templates with instructions to facilitate annual 

progress and final cost reporting. These templates are provided on the compact disc 

included with this determination. 

Conclusion 

The NPFC has reviewed the claim submitted by NOAA for 2013/14 costs to assess lost 

human use of natural resource resulting from the Deepwater Horizon incident in 

accordance with OPA (33 U.S.C. 2701 et seq.) and its implementing regulations (15 

C.F.R. 990 et seq. and 33 C.F.R. Part 136). We have determined that $20,074,000 is 

compensable to fund activities in the Lost Human Use Assessment Plan. This offer 

constitutes full and final payment for costs associated with this damage assessment plan. 

If you accept this offer, please complete the enclosed Acceptance/Release Form and 

return to: 

 Director (cn) 

 National Pollution Funds Center 

U.S. Coast Guard Stop 7100 

 4200 Wilson Boulevard, Suite 1000 

 Arlington, VA 20598-7100 

If we do not receive the signed Acceptance/Release Form within 60 days of the date of 

this letter, the offer is void. If the settlement is accepted, your payment will be mailed 

within 30 days of receipt of the Release Form. Please provide account information and 

instruction for the transfer of funds to your trustee account with the signed Release Form. 

Claim Number: N10036-OC15 

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If you have any questions regarding this determination, please feel free to contact me at 

703-872-6054. 

Fredy Hernandez 

Claims Manager 

 

Encl: (1) Acceptance/Release Form 

(2) Compact Disc with standardize template and instructions to facilitate annual 

progress and final cost reporting 

Claim Number: N10036-OC15 

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U.S. Department 

of Homeland Security

United States 

Coast Guard

Director 

United States Coast Guard 

National Pollution Funds Center 

U.S. Coast Guard Stop 7100 

National Pollution Funds Center 

4200 Wilson Boulevard, Suite 1000 

Arlington, VA 20598-7100 

Phone:

E-mail: @uscg.mil 

Claim Number: N10036-OC15 Claimant Name: National Oceanic Atmospheric Administration 

 

 

 

 

NOAA, the undersigned, accepts the determination of $20,074,000 as compensation for the 

claim listed above. 

On November 1, 2012, the NOAA presented a claim to the Oil Spill Liability Trust Fund 

(OSLTF or the Fund) in the total amount of $20,074,000 for upfront costs to lost human use of 

natural resources resulting from the discharge of oil on or about April 20, 2010, from an area of 

land leased by BP (the Deepwater Horizon incident). 

The NOAA accepts the settlement offer of $20,074,000 as full compensation for the cost to 

assess lost human use damages as described in the January 16, 2012 determination (N10036-

OC15). 

NOAA agrees to provide annual and final reports to the NPFC as directed in the determination. 

NOAA agrees to comply with 33 U.S.C. §2706(f) and 33 C.F.R. §136.211 by depositing into a 

revolving trust account the amounts awarded in the January 16, 2012 determination and any 

amounts in excess of those required to accomplish the assessment studies approved in the 

determination shall be deposited to the OSLTF. 

NOAA hereby assigns, transfers, and subrogates to the United States all rights, claims, interest 

and rights of action, that it may have against any party, person, firm or corporation that may be 

liable for the loss. NOAA authorizes the United States to sue compromise or settle in the name of 

NOAA and that the NPFC be fully substituted for NOAA and subrogated to all NOAA rights 

arising from the January 16, 2012 determination. 

NOAA acknowledges that the United States has pending legal actions associated with the 

Deepwater Horizon incident in federal district court but warrants that no settlement will be made 

by any person on behalf of the NOAA with any other party for costs that are the subject of the 

claim against the OSLTF and NOAA will cooperate fully with the NPFC in any claim and/or 

action by the United States against any person or party to recover the compensation paid by the 

OSLTF. The cooperation shall include but not be limited to, immediately reimbursing the 

OSLTF any compensation received from any other source for the same claim, and providing any 

documentation, evidence, testimony, and other support, as may be necessary for the NPFC to 

recover from any other party or person. 

Claim Number: N10036-OC15 

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Claim Number: N10036-OC15 

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NOAA certifies that to the best of its knowledge and belief the information contained in this 

claim represents all material facts and is true, and understands that misrepresentation of facts is 

subject to prosecution under federal law, including but not limited to 18 U.S.C. §§287 and 1001. 

FOR THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

_________________________________________ _______________________ 

 Tony Penn Date 

 NOAA Office of Response and Restoration