U.S. Code

TITLE 33 - NAVIGATION AND NAVIGABLE WATERS 

CHAPTER 40 - OIL POLLUTION

SUBCHAPTER I - OIL POLLUTION LIABILITY AND COMPENSATION 

(selected provisions)

************** 

2702. Elements of liability 

(a) In general. Notwithstanding any other provision or rule of law, and subject to the 

provisions of this Act, each responsible party for a vessel or a facility from which oil 

is discharged, or which poses the substantial threat of a discharge of oil, into or upon 

the navigable waters or adjoining shorelines or the exclusive economic zone is liable 

for the removal costs and damages specified in subsection (b) of this section that 

result from such incident. 

(b) Covered removal costs and damages 

(1) Removal costs. The removal costs referred to in subsection (a) of this section 

are -

(A) all removal costs incurred by the United States, a State, or an Indian tribe 

under subsection (c), (d), (e), or (l) of section 1321 of this title, under the 

Intervention on the High Seas Act (33 U.S.C. 1471 et seq.), or under State 

law; and 

(B) any removal costs incurred by any person for acts taken by the person 

which are consistent with the National Contingency Plan. 

(2) Damages. The damages referred to in subsection (a) of this section are the 

following: 

(A) Natural resources. Damages for injury to, destruction of, loss of, or loss of 

use of, natural resources, including the reasonable costs of assessing the 

damage, which shall be recoverable by a United States Trustee, a State 

Trustee, an Indian tribe Trustee, or a foreign Trustee. 

(B) Real or personal property. Damages for injury to, or economic losses 

resulting from destruction of, real or personal property, which shall be 

recoverable by a claimant who owns or leases that property. 

(C) Subsistence use. Damages for loss of subsistence use of natural resources, 

which shall be recoverable by any claimant who so uses natural resources 

which have been injured, destroyed, or lost, without regard to the ownership 

or management of the resources. 

(D) Revenues. Damages equal to the net loss of taxes, royalties, rents, fees, or 

net profit shares due to the injury, destruction, or loss of real property, 

personal property, or natural resources, which shall be recoverable by the 

Government of the United States, a State, or a political subdivision thereof. 

(E) Profits and earning capacity. Damages equal to the loss of profits or 

impairment of earning capacity due to the injury, destruction, or loss of real 

property, personal property, or natural resources, which shall be recoverable 

by any claimant. 

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(F) Public services. Damages for net costs of providing increased or additional 

public services during or after removal activities, including protection from 

fire, safety, or health hazards, caused by a discharge of oil, which shall be 

recoverable by a State, or a political subdivision of a State. 

(c) Excluded discharges. This subchapter does not apply to any discharge -

(1) permitted by a permit issued under Federal, State, or local law; 

(2) from a public vessel; or 

(3) from an onshore facility which is subject to the Trans-Alaska Pipeline 

Authorization Act (43 U.S.C. 1651 et seq.). 

(d) Liability of third parties 

(1) In general 

(A) Third party treated as responsible party. Except as provided in 

subparagraph (B), in any case in which a responsible party establishes that a 

discharge or threat of a discharge and the resulting removal costs and damages 

were caused solely by an act or omission of one or more third parties 

described in section 2703(a)(3) of this title (or solely by such an act or 

omission in combination with an act of God or an act of war), the third party 

or parties shall be treated as the responsible party or parties for purposes of 

determining liability under this subchapter. 

(B) Subrogation of responsible party. If the responsible party alleges that the 

discharge or threat of a discharge was caused solely by an act or omission of a 

third party, the responsible party -

(i) in accordance with section 2713 of this title, shall pay removal costs 

and damages to any claimant; and 

(ii) shall be entitled by subrogation to all rights of the United States

Government and the claimant to recover removal costs or damages from 

the third party or the Fund paid under this subsection. 

(2) Limitation applied 

(A) Owner or operator of vessel or facility. If the act or omission of a third 

party that causes an incident occurs in connection with a vessel or facility 

owned or operated by the third party, the liability of the third party shall be 

subject to the limits provided in section 2704 of this title as applied with 

respect to the vessel or facility. 

(B) Other cases. In any other case, the liability of a third party or parties shall 

not exceed the limitation which would have been applicable to the responsible 

party of the vessel or facility from which the discharge actually occurred if the 

responsible party were liable. 

2706. Natural resources 

(a) Liability. In the case of natural resource damages under section 2702(b)(2)(A) of 

this title, liability shall be -

(1) to the United States Government for natural resources belonging to, managed 

by, controlled by, or appertaining to the United States; 

(2) to any State for natural resources belonging to, managed by, controlled by, or 

appertaining to such State or political subdivision thereof; 

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(3) to any Indian tribe for natural resources belonging to, managed by, controlled 

by, or appertaining to such Indian tribe; and 

(4) in any case in which section 2707 of this title applies, to the government of a 

foreign country for natural resources belonging to, managed by, controlled by, or 

appertaining to such country. 

(b) Designation of Trustees 

(1) In general. The President, or the authorized representative of any State, Indian 

tribe, or foreign government, shall act on behalf of the public, Indian tribe, or 

foreign country as Trustee of natural resources to present a claim for and to 

recover damages to the natural resources. 

(2) Federal Trustees. The President shall designate the Federal officials who shall 

act on behalf of the public as Trustees for natural resources under this Act. 

(3) State Trustees. The Governor of each State shall designate State and local 

officials who may act on behalf of the public as Trustee for natural resources 

under this Act and shall notify the President of the designation. 

(4) Indian tribe Trustees. The governing body of any Indian tribe shall designate 

tribal officials who may act on behalf of the tribe or its members as Trustee for 

natural resources under this Act and shall notify the President of the designation. 

(5) Foreign Trustees. The head of any foreign government may designate the 

Trustee who shall act on behalf of that government as Trustee for natural 

resources under this Act. 

(c) Functions of Trustees 

(1) Federal Trustees. The Federal officials designated under subsection (b)(2) of 

this section -

(A) shall assess natural resource damages under section 2702(b)(2)(A) of this 

title for the natural resources under their Trusteeship; 

(B) may, upon request of and reimbursement from a State or Indian tribe and 

at the Federal officials' discretion, assess damages for the natural resources 

under the State's or tribe's Trusteeship; and 

(C) shall develop and implement a plan for the restoration, rehabilitation, replacement, 

or acquisition of the equivalent, of the natural resources under their Trusteeship. 

(2) State Trustees. The State and local officials designated under subsection (b)(3) 

of this section -

(A) shall assess natural resource damages under section 2702(b)(2)(A) of this 

title for the purposes of this Act for the natural resources under their 

Trusteeship; and 

(B) shall develop and implement a plan for the restoration, rehabilitation, 

replacement, or acquisition of the equivalent, of the natural resources under 

their Trusteeship. 

(3) Indian tribe Trustees. The tribal officials designated under subsection (b)(4) of 

this section -

(A) shall assess natural resource damages under section 2702(b)(2)(A) of this 

title for the purposes of this Act for the natural resources under their 

Trusteeship; and 

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(B) shall develop and implement a plan for the restoration, rehabilitation, 

replacement, or acquisition of the equivalent, of the natural resources under 

their Trusteeship. 

(4) Foreign Trustees. The Trustees designated under subsection (b)(5) of this 

section -

(A) shall assess natural resource damages under section 2702(b)(2)(A) of this 

title for the purposes of this Act for the natural resources under their 

Trusteeship; and 

(B) shall develop and implement a plan for the restoration, rehabilitation, 

replacement, or acquisition of the equivalent, of the natural resources under 

their Trusteeship. 

(5) Notice and opportunity to be heard. Plans shall be developed and implemented 

under this section only after adequate public notice, opportunity for a hearing, and 

consideration of all public comment. 

(d) Measure of damages 

(1) In general. The measure of natural resource damages under section 

2702(b)(2)(A) of this title is -

(A) the cost of restoring, rehabilitating, replacing, or acquiring the equivalent 

of, the damaged natural resources; 

(B) the diminution in value of those natural resources pending restoration; 

plus 

(C) the reasonable cost of assessing those damages. 

(2) Determine costs with respect to plans. Costs shall be determined under 

paragraph (1) with respect to plans adopted under subsection (c) of this section. 

(3) No double recovery. There shall be no double recovery under this Act for 

natural resource damages, including with respect to the costs of damage 

assessment or restoration, rehabilitation, replacement, or acquisition for the same 

incident and natural resource. 

(e) Damage assessment regulations 

(1) Regulations. The President, acting through the Under Secretary of Commerce 

for Oceans and Atmosphere and in consultation with the Administrator of the 

Environmental Protection Agency, the Director of the United States Fish and 

Wildlife Service, and the heads of other affected agencies, not later than 2 years 

after August 18, 1990, shall promulgate regulations for the assessment of natural 

resource damages under section 2702(b)(2)(A) of this title resulting from a 

discharge of oil for the purpose of this Act. 

(2) Rebuttable presumption. Any determination or assessment of damages to 

natural resources for the purposes of this Act made under subsection (d) of this 

section by a Federal, State, or Indian Trustee in accordance with the regulations 

promulgated under paragraph (1) shall have the force and effect of a rebuttable 

presumption on behalf of the Trustee in any administrative or judicial proceeding 

under this Act. 

(f) Use of recovered sums. Sums recovered under this Act by a Federal, State, Indian, 

or foreign Trustee for natural resource damages under section 2702(b)(2)(A) of this 

title shall be retained by the Trustee in a revolving trust account, without further 

appropriation, for use only to reimburse or pay costs incurred by the Trustee under 

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subsection (c) of this section with respect to the damaged natural resources. Any 

amounts in excess of those required for these reimbursements and costs shall be 

deposited in the Fund. 

(g) Compliance. Review of actions by any Federal official where there is alleged to 

be a failure of that official to perform a duty under this section that is not 

discretionary with that official may be had by any person in the district court in which 

the person resides or in which the alleged damage to natural resources occurred. The 

court may award costs of litigation (including reasonable attorney and expert witness 

fees) to any prevailing or substantially prevailing party. Nothing in this subsection 

shall restrict any right which any person may have to seek relief under any other 

provision of law. 

2712. Uses of Fund 

(a) Uses generally. The Fund shall be available to the President for -

(1) the payment of removal costs, including the costs of monitoring removal 

actions, determined by the President to be consistent with the National 

Contingency Plan -

(A) by Federal authorities; or

(B) by a Governor or designated State official under subsection (d) of this 

section; 

(2) the payment of costs incurred by Federal, State, or Indian tribe Trustees in 

carrying out their functions under section 2706 of this title for assessing natural 

resource damages and for developing and implementing plans for the restoration, 

rehabilitation, replacement, or acquisition of the equivalent of damaged resources 

determined by the President to be consistent with the National Contingency Plan; 

(3) the payment of removal costs determined by the President to be consistent 

with the National Contingency Plan as a result of, and damages resulting from, a

discharge, or a substantial threat of a discharge, of oil from a foreign offshore 

unit; 

(4) the payment of claims in accordance with section 2713 of this title for 

uncompensated removal costs determined by the President to be consistent with 

the National Contingency Plan or uncompensated damages; 

(5) the payment of Federal administrative, operational, and personnel costs and 

expenses reasonably necessary for and incidental to the implementation, 

administration, and enforcement of this Act (including, but not limited to, sections 

1004(d)(2), 1006(e), 4107, 4110, 4111, 4112, 4117, 5006, 8103, and title VII) and 

subsections (b), (c), (d), (j), and (l) of section 1321 of this title with respect to 

prevention, removal, and enforcement related to oil discharges, provided that -

(A) not more than $25,000,000 in each fiscal year shall be available to the 

Secretary for operating expenses incurred by the Coast Guard;

(B) not more than $30,000,000 each year through the end of fiscal year 1992 

shall be available to establish the National Response System under section 

1321(j) of this title, including the purchase and prepositioning of oil spill 

removal equipment; and 

(C) not more than $27,250,000 in each fiscal year shall be available to carry

out subchapter IV of this chapter. 

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(b) Defense to liability for Fund. The Fund shall not be available to pay any claim for 

removal costs or damages to a particular claimant, to the extent that the incident, 

removal costs, or damages are caused by the gross negligence or willful misconduct 

of that claimant. 

(c) Obligation of Fund by Federal officials. The President may promulgate 

regulations designating one or more Federal officials who may obligate money in 

accordance with subsection (a) of this section. 

(d) Access to Fund by State officials 

(1) Immediate removal. In accordance with regulations promulgated under this 

section, the President, upon the request of the Governor of a State or pursuant to 

an agreement with a State under paragraph (2), may obligate the Fund for 

payment in an amount not to exceed $250,000 for removal costs consistent with 

the National Contingency Plan required for the immediate removal of a discharge, 

or the mitigation or prevention of a substantial threat of a discharge, of oil. 

(2) Agreements 

(A) In general. The President shall enter into an agreement with the Governor

of any interested State to establish procedures under which the Governor or a 

designated State official may receive payments from the Fund for removal 

costs pursuant to paragraph (1). 

(B) Terms. Agreements under this paragraph -

(i) may include such terms and conditions as may be agreed upon by the 

President and the Governor of a State; 

(ii) shall provide for political subdivisions of the State to receive payments 

for reasonable removal costs; and 

(iii) may authorize advance payments from the Fund to facilitate removal 

efforts. 

(e) Regulations. The President shall -

(1) not later than 6 months after August 18, 1990, publish proposed regulations 

detailing the manner in which the authority to obligate the Fund and to enter into 

agreements under this subsection shall be exercised; and 

(2) not later than 3 months after the close of the comment period for such 

proposed regulations, promulgate final regulations for that purpose. 

(f) Rights of subrogation. Payment of any claim or obligation by the Fund under this 

Act shall be subject to the United States Government acquiring by subrogation all 

rights of the claimant or State to recover from the responsible party.

(g) Audits. The Comptroller General shall audit all payments, obligations, 

reimbursements, and other uses of the Fund, to assure that the Fund is being properly

administered and that claims are being appropriately and expeditiously considered. 

The Comptroller General shall submit to the Congress an interim report one year after

August 18, 1990. The Comptroller General shall thereafter audit the Fund as is 

appropriate. Each Federal agency shall cooperate with the Comptroller General in 

carrying out this subsection. 

(h) Period of limitations for claims 

(1) Removal costs. No claim may be presented under this subchapter for recovery 

of removal costs for an incident unless the claim is presented within 6 years after 

the date of completion of all removal actions for that incident. 

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(2) Damages. No claim may be presented under this section for recovery of 

damages unless the claim is presented within 3 years after the date on which the 

injury and its connection with the discharge in question were reasonably 

discoverable with the exercise of due care, or in the case of natural resource 

damages under section 2702(b)(2)(A) of this title, if later, the date of completion 

of the natural resources damage assessment under section 2706(e) of this title. 

(3) Minors and incompetents. The time limitations contained in this subsection 

shall not begin to run -

(A) against a minor until the earlier of the date when such minor reaches 18 

years of age or the date on which a legal representative is duly appointed for 

the minor, or 

(B) against an incompetent person until the earlier of the date on which such

incompetent's incompetency ends or the date on which a legal representative

is duly appointed for the incompetent. 

(i) Limitation on payment for same costs. In any case in which the President has paid 

an amount from the Fund for any removal costs or damages specified under 

subsection (a) of this section, no other claim may be paid from the Fund for the same 

removal costs or damages. 

(j) Obligation in accordance with plan 

(1) In general. Except as provided in paragraph (2), amounts may be obligated 

from the Fund for the restoration, rehabilitation, replacement, or acquisition of 

natural resources only in accordance with a plan adopted under section 2706(c) of 

this title. 

(2) Exception. Paragraph (1) shall not apply in a situation requiring action to 

avoid irreversible loss of natural resources or to prevent or reduce any continuing

danger to natural resources or similar need for emergency action. 

(k) Preference for private persons in area affected by discharge 

(1) In general. In the expenditure of Federal funds for removal of oil, including 

for distribution of supplies, construction, and other reasonable and appropriate 

activities, under a contract or agreement with a private person, preference shall be 

given, to the extent feasible and practicable, to private persons residing or doing 

business primarily in the area affected by the discharge of oil. 

(2) Limitation. This subsection shall not be considered to restrict the use of 

Department of Defense resources. 

2713. Claims procedure 

(a) Presentation. Except as provided in subsection (b) of this section, all claims for 

removal costs or damages shall be presented first to the responsible party or guarantor 

of the source designated under section 2714(a) of this title. 

(b) Presentation to Fund 

(1) In general. Claims for removal costs or damages may be presented first to the 

Fund -

(A) if the President has advertised or otherwise notified claimants in 

accordance with section 2714(c) of this title; 

(B) by a responsible party who may assert a claim under section 2708 of this 

title; 

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(C) by the Governor of a State for removal costs incurred by that State; or 

(D) by a United States claimant in a case where a foreign offshore unit has 

discharged oil causing damage for which the Fund is liable under section 

2712(a) of this title. 

(2) Limitation on presenting claim. No claim of a person against the Fund may be 

approved or certified during the pendency of an action by the person in court to 

recover costs which are the subject of the claim. 

(c) Election. If a claim is presented in accordance with subsection (a) of this section 

and -

(1) each person to whom the claim is presented denies all liability for the claim, or 

(2) the claim is not settled by any person by payment within 90 days after the date 

upon which 

(A) the claim was presented, or 

(B) advertising was begun pursuant to section 2714(b) of this title, whichever 

is later, the claimant may elect to commence an action in court against the

responsible party or guarantor or to present the claim to the Fund. 

(d) Uncompensated damages. If a claim is presented in accordance with this section 

and full and adequate compensation is unavailable, a claim for the uncompensated 

damages and removal costs may be presented to the Fund. 

(e) Procedure for claims against Fund. The President shall promulgate, and may from 

time to time amend, regulations for the presentation, filing, processing, settlement, 

and adjudication of claims under this Act against the Fund. 

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Chapter 6 6-54

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TITLE 15 

COMMERCE AND FOREIGN TRADE CHAPTER IX

NATIONAL OCEANIC AND ATMOSPHERIC 

ADMINISTRATION,

DEPARTMENT OF COMMERCE PART 990 

NATURAL RESOURCE DAMAGE ASSESSMENTS


Subpart A--Introduction


Sec 990.10 Purpose.


990.11 Scope.


990.12 Overview.


990.13 Rebuttable presumption.


990.14 Coordination.


990.15 Considerations to facilitate restoration.


Subpart B--Authorities


990.20 Relationship to the CERCLA natural resource damage


assessment regulations.


990.21 Relationship to the NCP.


990.22 Prohibition on double recovery.


990.23 Compliance with NEPA and the CEQ regulations.


990.24 Compliance with other applicable laws and


regulations.


990.25 Settlement.


990.26 Emergency restoration.


990.27 Use of assessment procedures.


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 Data collection.


990.44 Notice of Intent to Conduct Restoration Planning.


990.45 Administrative record.


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Subpart E--Restoration Planning Phase


990.50 Purpose.


990.51 Injury assessment--injury determination.


990.52 Injury assessment--quantification.


990.53 Restoration selection--developing restoration


alternatives.


990.54 Restoration selection--evaluation of alternatives.


990.55 Restoration selection--developing restoration


plans.


990.56 Restoration selection--use of a Regional


Restoration Plan or existing restoration project.


Subpart F--Restoration Implementation Phase


990.60 Purpose.


990.61 Administrative record.


990.62 Presenting a demand.


990.63 Discounting and compounding.


990.64 Unsatisfied demands.


990.65 Opening an account for recovered damages.


990.66 Additional considerations.


Authority: 33 U.S.C. 2701 et seq. Source: 61 FR 500, Jan.


5, 1996, unless otherwise noted.


Subpart A--Introduction


Sec. 990.10 Purpose. The goal of the Oil Pollution Act of


1990 (OPA), 33 U.S.C. 2701 et seq., is to make the


environment and public whole for injuries to natural


resources and services resulting from an incident involving


a discharge or substantial threat of a discharge of oil


(incident). This goal is achieved through the return of the


injured natural resources and services to baseline and


compensation for interim losses of such natural resources


and services from the date of the incident until recovery.


The purpose of this part is to promote expeditious and


cost-effective restoration of natural resources and


services injured as a result of an incident. To fulfill


this purpose, this part provides a natural resource damage


assessment process for developing a plan for restoration of


the injured natural resources and services and pursuing


implementation or funding of the plan by responsible


parties. This part also provides an administrative process


for involving interested parties in the assessment, a range


of assessment procedures for identifying and evaluating


injuries to natural resources and services, and a means for


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selecting restoration actions from a reasonable 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, and, if designated by the Governor of the


state, local officials to act on behalf of the public as


trustees for natural resources and for the designation of


Indian tribe and foreign officials to act as trustees for


natural resources on behalf of, respectively, the tribe or


its members and the foreign government. This part may be


used 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. This part is


not intended to affect the recoverability of natural


resource damages when recoveries are sought other than in


accordance with this part.


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, type of, and scale 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 Rebuttable presumption. Any determination or


assessment of damages to natural resources made by a


Federal, State, or Indian trustee in accordance with this


part shall have the force and effect of a rebuttable


presumption on behalf of the trustee in any administrative


or judicial proceeding under OPA.


Sec. 990.14 Coordination. (a) Trustees. (1) If an incident


affects the interests of multiple trustees, the trustees


should act jointly under this part to ensure that full


restoration is achieved without double recovery of damages.


For joint assessments, trustees must designate one or more


Lead Administrative Trustee(s) to act as coordinators. (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. (3) Trustees may develop pre-incident or incident-


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specific memoranda of understanding to coordinate their


activities. (b) Response agencies. Trustees must coordinate


their activities conducted concurrently with response


operations 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--(1) Invitation.


Trustees must invite the responsible parties to participate


in the natural resource damage assessment described in this


part. The invitation to participate should be in writing,


and a written response by the responsible parties is


required to confirm the desire to participate. (2) Timing.


The invitation to participate should be extended to known


responsible parties as soon as practicable, but not later


than the delivery of the ``Notice of Intent to Conduct


Restoration Planning,'' under Sec. 990.44 of this part, to


the responsible party. (3) Agreements. Trustees and


responsible parties should consider entering into binding


agreements to facilitate their interactions and resolve any


disputes during the assessment. To maximize cost-


effectiveness and cooperation, trustees and responsible


parties should attempt to develop a set of agreed-upon


facts concerning the incident and/or assessment. (4) Nature


and extent of participation. If the responsible parties


accept the invitation to participate, the scope of that


participation must be determined by the trustees, in light


of the considerations in paragraph (c)(5) of this section.


At a minimum, participation will include notice of trustee


determinations required under this part, and notice and


opportunity to comment on documents or plans that


significantly affect the nature and extent of the


assessment. Increased levels of participation by


responsible parties may be developed at the mutual


agreement of the trustees and the responsible parties.


Trustees will objectively consider all written comments


provided by the responsible parties, as well as any other


recommendations or proposals that the responsible parties


submit in writing to the Lead Administrative Trustee.


Submissions by the responsible parties will be included in


the administrative record. Final authority to make


determinations regarding injury and restoration rest solely


with the trustees. Trustees may end participation by


responsible parties who, during the conduct of the


assessment, in the sole judgment of the trustees, cause


interference with the trustees' ability to fulfill their


responsibilities under OPA and this part. (5)


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Considerations. In determining the nature and extent of


participation by the responsible parties or their


representatives, trustees may consider such factors as: (i)


Whether the responsible parties have been identified; (ii)


The willingness of responsible parties to participate in


the assessment; (iii) The willingness of responsible


parties to fund assessment activities; (iv) The willingness


and ability of responsible parties to conduct assessment


activities in a technically sound and timely manner and to


be bound by the results of jointly agreed upon studies; (v)


The degree of cooperation of the responsible parties in the


response to the incident; and (vi) The actions of the


responsible parties in prior assessments. (6) Request for


alternative assessment procedures. (i) The participating


responsible parties may request that trustees use


assessment procedures other than those selected by the


trustees if the responsible parties: (A) Identify the


proposed procedures to be used that meet the requirements


of Sec. 990.27 of this part, and provide reasons supporting


the technical adequacy and appropriateness of such


procedures for the incident and associated injuries; (B)


Advance to the trustees the trustees' reasonable estimate


of the cost of using the proposed procedures; and (C) Agree


not to challenge the results of the proposed procedures.


The request from the responsible parties may be made at any


time, but no later than, fourteen (14) days of being


notified of the trustees' proposed assessment procedures


for the incident or the injury. (ii) Trustees may reject


the responsible parties' proposed assessment procedures if,


in the sole judgment of the trustees, the proposed


assessment procedures: (A) Are not technically feasible;


(B) Are not scientifically or technically sound; (C) Would


inadequately address the natural resources and services of


concern; (D) Could not be completed within a reasonable


time frame; or (E) Do not meet the requirements of Sec.


990.27 of this part. (7) Disclosure. Trustees must document


in the administrative record and Restoration Plan the


invitation to the responsible parties to participate, and


briefly describe the nature and extent of the responsible


parties' participation. If the responsible parties'


participation is terminated during the assessment, trustees


must provide a brief explanation of this decision in the


administrative record and Restoration Plan. (d) Public.


Trustees must provide opportunities for public involvement


after the trustees' decision to develop restoration plans


or issuance of any notices to that effect, as provided in


Sec. 990.55 of this part. Trustees may also provide


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opportunities for public involvement at any time prior to


this decision if such involvement may enhance trustees'


decisionmaking or avoid delays in restoration.


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 expediting 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 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. (b)


Regional Restoration Plans. Where practicable, incident-


specific restoration plan development is preferred,


however, trustees may develop Regional Restoration Plans.


These plans may be used to support a claim under Sec.


990.56 of this part. Regional restoration planning may


consist of compiling databases that identify, on a regional


or watershed basis, or otherwise as appropriate, existing,


planned, or proposed restoration projects that may provide


appropriate restoration alternatives for consideration in


the context of specific incidents.


Subpart B--Authorities


Sec. 990.20 Relationship to the CERCLA natural resource


damage assessment regulations. (a) General. Regulations for


assessing natural resource damages resulting from hazardous


substance releases under the Comprehensive Environmental


Response, Compensation, and Liability Act of 1980, as


amended (CERCLA), 42 U.S.C. 9601 et seq., and the Federal


Water Pollution Control Act (Clean Water Act), 33 U.S.C.


1321 et seq., 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 part supersedes 43 CFR part 11


with regard to oil discharges covered by OPA. (b)


Assessments commenced before February 5, 1996. If trustees


commenced a natural resource damage assessment for an oil


Chapter 6 6-60 

April 10, 2001 
discharge under 43 CFR part 11 prior to February 5, 1996


they may complete the assessment in compliance with 43 CFR


part 11, or they may elect to use this part, and obtain a


rebuttable presumption. (c) Oil and hazardous substance


mixtures. For natural resource damages resulting from 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.


Sec. 990.21 Relationship to the NCP. This part provides


procedures by which trustees may determine appropriate


restoration of injured natural resources and services,


where such injuries are not fully addressed by response


actions. Response actions and the coordination with damage


assessment activities are conducted pursuant to the


National Oil and Hazardous Substances Pollution Contingency


Plan (NCP), 40 CFR part 300.


Sec. 990.22 Prohibition on double recovery. When taking


actions under this part, trustees are subject to the


prohibition on double recovery, as provided in 33 U.S.C.


2706(d)(3) of OPA


Sec. 990.23 Compliance with NEPA and the CEQ regulations.


(a) General. The National Environmental Policy Act (NEPA),


42 U.S.C. 4321 et seq. and Council on Environmental Quality


(CEQ) regulations implementing NEPA, 40 CFR chapter V,


apply to restoration actions by federal trustees, except


where a categorical exclusion or other exception to NEPA


applies. Thus, when a federal trustee proposes to take


restoration actions under this part, it must integrate this


part with NEPA, the CEQ regulations, and NEPA regulations


promulgated by that federal trustee agency. Where state


NEPA-equivalent laws may apply to state trustees, state


trustees must consider the extent to which they must


integrate this part with their NEPA-equivalent laws. The


requirements and process described in this section relate


only to NEPA and federal trustees. (b) NEPA requirements


for federal trustees. NEPA becomes applicable when federal


trustees propose to take restoration actions, which begins


with the development of a Draft Restoration Plan under Sec.


990.55 of this part. Depending upon the circumstances of


the incident, federal trustees may need to consider early


involvement of the public in restoration planning in order


to meet their NEPA compliance requirements. (c) NEPA


process for federal trustees. Although the steps in the


NEPA process may vary among different federal trustees, the


Chapter 6 6-61 

April 10, 2001 
process will generally involve the need to develop


restoration plans in the form of an Environmental


Assessment or Environmental Impact Statement, depending


upon the trustee agency's own NEPA regulations. (1)


Environmental Assessment. (i) Purpose. The purpose of an


Environmental Assessment (EA) is to determine whether a


proposed restoration action will have a significant (as


defined under NEPA and Sec. 1508.27 of the CEQ regulations)


impact on the quality of the human environment, in which


case an Environmental Impact Statement (EIS) evaluating the


impact is required. In the alternative, where the impact


will not be significant, federal trustees must issue a


Finding of No Significant Impact (FONSI) as part of the


restoration plans developed under this part. If significant


impacts to the human environment are anticipated, the


determination to proceed with an EIS may be made as a


result, or in lieu, of the development of the EA. (ii)


General steps. (A) If the trustees decide to pursue an EA,


the trustees may issue a Notice of Intent to Prepare a


Draft Restoration Plan/EA, or proceed directly to


developing a Draft Restoration Plan/EA. (B) The Draft


Restoration Plan/EA must be made available for public


review before concluding a FONSI or proceeding with an EIS.


(C) If a FONSI is concluded, the restoration planning


process should be no different than under Sec. 990.55 of


this part, except that the Draft Restoration Plan/EA will


include the FONSI analysis. (D) The time period for public


review on the Draft Restoration Plan/ EA must be consistent


with the federal trustee agency's NEPA requirements, but


should generally be no less than thirty (30) calendar days.


(E) The Final Restoration Plan/EA must consider all public


comments on the Draft Restoration Plan/EA and FONSI. (F)


The means by which a federal trustee requests, considers,


and responds to public comments on the Draft Restoration


Plan/EA and FONSI must also be consistent with the federal


agency's NEPA requirements. (2) Environmental Impact


Statement. (i) Purpose. The purpose of an Environmental


Impact Statement (EIS) is to involve the public and


facilitate the decisionmaking process in the federal


trustees' analysis of alternative approaches to restoring


injured natural resources and services, where the impacts


of such restoration are expected to have significant


impacts on the quality of the human environment. (ii)


General steps. (A) If trustees determine that restoration


actions are likely to have a significant (as defined under


NEPA and Sec. 1508.27 of the CEQ regulations) impact on the


environment, they must issue a Notice of Intent to Prepare


Chapter 6 6-62 

April 10, 2001 
a Draft Restoration Plan/EIS. The notice must be published


in the Federal Register. (B) The notice must be followed by


formal public involvement in the development of the Draft


Restoration Plan/EIS. (C) The Draft Restoration Plan/EIS


must be made available for public review for a minimum of


forty-five (45) calendar days. The Draft Restoration


Plan/EIS, or a notice of its availability, must be


published in the Federal Register. (D) The Final


Restoration Plan/EIS must consider all public comments on


the Draft Restoration Plan/EIS, and incorporate any changes


made to the Draft Restoration Plan/EIS in response to


public comments. (E) The Final Restoration Plan/EIS must be


made publicly available for a minimum of thirty (30)


calendar days before a decision is made on the federal


trustees' proposed restoration actions (Record of


Decision). The Final Restoration Plan/EIS, or a notice of


its availability, must be published in the Federal


Register. (F) The means by which a federal trustee agency


requests, considers, and responds to public comments on the


Final Restoration Plan/EIS must also be consistent with the


federal agency's NEPA requirements. (G) After appropriate


public review on the Final Restoration Plan/ EIS is


completed, a Record of Decision (ROD) is issued. The ROD


summarizes the trustees' decisionmaking process after


consideration of any public comments relative to the


proposed restoration actions, identifies all restoration


alternatives (including the preferred alternative(s)), and


their environmental [[Page 354]] consequences, and states


whether all practicable means to avoid or minimize


environmental harm were adopted (e.g., monitoring and


corrective actions). The ROD may be incorporated with other


decision documents prepared by the trustees. The means by


which the ROD is made publicly available must be consistent


with the federal trustee agency's NEPA requirements. (d)


Relationship to Regional Restoration Plans or an existing


restoration project. If a Regional Restoration Plan or


existing restoration project is proposed for use, federal


trustees may be able to tier their NEPA analysis to an


existing EIS, as described in Secs. 1502.20 and 1508.28 of


the CEQ regulations.


Sec. 990.24 Compliance with other applicable laws and


regulations. (a) Worker health and safety. When taking


actions under this part, trustees must comply with


applicable worker health and safety considerations


specified in the NCP for response actions. (b) Natural


Resources protection. When acting under this part, trustees


Chapter 6 6-63 

April 10, 2001 
must ensure compliance with any applicable consultation,


permitting, 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 et seq.; the National Marine Sanctuaries Act, 16


U.S.C. 1431 et seq.; the National Historic Preservation


Act, 12 U.S.C. 470 et seq.; the Marine Mammal Protection


Act, 16 U.S.C. 1361 et seq.; and the Archaeological


Resources Protection Act, 16 U.S.C. 470 et seq.


Sec. 990.25 Settlement. Trustees may settle claims for


natural resource damages under this part at any time,


provided that the settlement is adequate in the judgment of


the trustees to satisfy the goal of OPA and is fair,


reasonable, and in the public interest, with particular


consideration of the adequacy of the settlement to restore,


replace, rehabilitate, or acquire the equivalent of the


injured natural resources and services. Sums recovered in


settlement of such claims, other than reimbursement of


trustee costs, may only be expended in accordance with a


restoration plan, which may be set forth in whole or in


part in a consent decree or other settlement agreement,


which is made available for public review.


Sec. 990.26 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 or prevent additional


injury; (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, trustees, through their Regional


Response Team member or designee, must coordinate with the


On- Scene Coordinator (OSC) before taking any emergency


restoration actions. Any emergency restoration actions


proposed by trustees should not interfere with on-going


response actions. Trustees must explain to response


agencies through the OSC prior to implementation of


emergency restoration actions their reasons for believing


that proposed emergency restoration actions will not


interfere with on-going response actions. (c) Trustees must


provide notice to identified responsible parties of any


emergency restoration actions and, to the extent time


permits, invite their participation in the conduct of those


actions as provided in Sec. 990.14(c) of this part. (d)


Trustees must provide notice to the public, to the extent


Chapter 6 6-64 

April 10, 2001 
practicable, of these planned emergency restoration


actions. Trustees must also provide public notice of the


justification for, nature and extent of, and results of


emergency restoration actions within a reasonable time


frame after completion of such actions. The means by which


this notice is provided is left to the discretion of the


trustee.


Sec. 990.27 Use of assessment procedures. (a) Standards for


assessment procedures. Any procedures used pursuant to this


part must comply with all of the [[Page 355]] following


standards if they are to be in accordance with this part:


(1) The procedure must be capable of providing assessment


information of use in determining the type and scale of


restoration appropriate for a particular injury; (2) The


additional cost of a more complex procedure must be


reasonably related to the expected increase in the quantity


and/or quality of relevant information provided by the more


complex procedure; and (3) The procedure must be reliable


and valid for the particular incident. (b) Assessment


procedures available. (1) The range of assessment


procedures available to trustees includes, but is not


limited to: (i) Procedures conducted in the field; (ii)


Procedures conducted in the laboratory; (iii) Model-based


procedures, including type A procedures identified in 43


CFR part 11, subpart D, and compensation


formulas/schedules; and (iv) Literature-based procedures.


(2) Trustees may use the assessment procedures in paragraph


(b)(1) of this section alone, or in any combination,


provided that the standards in paragraph (a) of this


section are met, and there is no double recovery. (c)


Selecting assessment procedures. (1) When selecting


assessment procedures, trustees must consider, at a


minimum: (i) The range of procedures available under


paragraph (b) of this section; (ii) The time and cost


necessary to implement the procedures; (iii) The potential


nature, degree, and spatial and temporal extent of the


injury; (iv) The potential restoration actions for the


injury; and (v) The relevance and adequacy of information


generated by the procedures to meet information


requirements of restoration planning. (2) If a range of


assessment procedures providing the same type and quality


of information is available, the most cost-effective


procedure must be used.


Subpart C—Definitions


Chapter 6 6-65 

April 10, 2001 
Sec. 990.30 Definitions. For the purpose of this rule, the


term:


Baseline means the condition of the natural resources and


services that would have existed had the incident not


occurred. Baseline data may be estimated using historical


data, reference data, control data, or data on incremental


changes (e.g., number of dead animals), alone or in


combination, as appropriate.


Cost-effective means the least costly activity among two or


more activities that provide the same or a comparable level


of benefits, in the judgment of the trustees


CEQ regulations means the Council on Environmental Quality


regulations implementing NEPA, 40 CFR chapter V.


Damages means damages specified in section 1002(b) of OPA


(33 U.S.C. 1002(b)), and includes the costs of assessing


these damages, as defined in section 1001(5) of OPA (33


U.S.C. 2701(5)).


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, as defined in section 1001(7) of OPA


(33 U.S.C. 2701(7)).


Exclusive Economic Zone means the zone established by


Presidential Proclamation 5030 of March 10, 1983 (3 CFR,


1984 Comp, p. 22), 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, as defined in section


1001(8) of OPA (33 U.S.C. 2701(8)).


Exposure means direct or indirect contact with the


discharged oil. Facility means any structure, group of


structures, equipment, or device (other than a vessel)


which is used for one or more of the following purposes:


exploring for, drilling for, producing, storing, handling,


transferring, processing, or transporting oil. This term


includes any motor vehicle, rolling stock, or pipeline used


for one or more of these purposes, as defined in section


1001(9) of OPA (33 U.S.C. 2701(9)).


Chapter 6 6-66 

April 10, 2001 
Fund means the Oil Spill Liability Trust Fund, established


by section 9509 of the Internal Revenue Code of 1986 (26


U.S.C. 9509), as defined in section 1001(11) of OPA (33


U.S.C. 2701(11)).


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, as defined in section 1001(14) of


OPA (33 U.S.C. 2701(14)).


Indian tribe (or tribal) 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, as defined in section 1001(15) of


OPA (33 U.S.C. 2701(15)).


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 the


terms ``destruction,'' ``loss,'' and ``loss of use'' as


provided in OPA.


Lead Administrative Trustee(s) (or LAT) means the


trustee(s) who is selected by all participating trustees


whose natural resources or services are injured by an


incident, for the purpose of coordinating natural resource


damage assessment activities. The LAT(s) should also


facilitate communication between the OSC and other natural


resource trustees regarding their activities during the


response phase.


NCP means the National Oil and Hazardous Substances


Pollution Contingency Plan (National Contingency Plan)


codified at 40 CFR part 300, which addresses the


identification, investigation, study, and response to


incidents, as defined in section 1001(19) of OPA (33 U.S.C.


2701(19)).


Natural resource damage assessment (or assessment) means


the process of collecting and analyzing information to


Chapter 6 6-67 

April 10, 2001 
evaluate the nature and extent of injuries resulting from


an incident, and determine the restoration actions needed


to bring injured natural resources and services back to


baseline and make the environment and public whole for


interim losses.


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, as defined in section 1001(20) of


OPA (33 U.S.C. 2701(20)).


Navigable waters means the waters of the United States,


including the territorial sea, as defined in section


1001(21) of OPA (33 U.S.C. 2701(21)).


NEPA means the National Environmental Policy Act, 42 U.S.C.


4321 et seq. 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), as defined in


section 1001(23) of OPA (33 U.S.C. 2701(23)).


On-Scene Coordinator (or OSC) means the official designated


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 response actions


under the NCP.


OPA means the Oil Pollution Act of 1990, 33 U.S.C. 2701 et


seq.


Pathway means any link that connects the incident to a


natural resource and/or service, and is associated with an


actual discharge of oil.


Person means an individual, corporation, partnership,


association, state, municipality, commission, or political


subdivision of a state, or any interstate body, as defined


in section 1001(27) of OPA (33 U.S.C. 2701(27)).


Public vessel means a vessel owned or bareboat chartered


and operated by the United States, or by a state or


Chapter 6 6-68 

April 10, 2001 
political subdivision thereof, or by a foreign nation,


except when the vessel is engaged in commerce, as defined


in section 1001(29) of OPA (33 U.S.C. 2701(29)).


Reasonable assessment costs means, for assessments


conducted under this part, assessment costs that are


incurred by trustees in accordance with this part. In cases


where assessment costs are incurred but trustees do not


pursue restoration, trustees may recover their reasonable


assessment costs provided that they have determined that


assessment actions undertaken were premised on the


likelihood of injury and need for restoration. Reasonable


assessment costs also include: administrative, legal, and


enforcement costs necessary to carry out this part;


monitoring and oversight costs; and costs associated with


public participation.


Recovery means the return of injured natural resources and


services to baseline.


Response (or remove or removal) means containment and


removal of oil or a hazardous substance from water and


shorelines or the taking of other actions as may be


necessary to minimize or mitigate damage to the public


health or welfare, including, but not limited to, fish,


shellfish, wildlife, and public and private property,


shorelines, and beaches, as defined in section 1001(30) of


OPA (33 U.S.C. 2701(30)).


Responsible party means: (a) Vessels. In the case of a


vessel, any person owning, operating, or demise chartering


the vessel. (b) 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. (c) 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


Chapter 6 6-69 

April 10, 2001 
state, or any interstate body, that as owner transfers


possession and right to use the property to another person


by lease, assignment, or permit. (d) 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. (e)


Pipelines. In the case of a pipeline, any person owning or


operating the pipeline. (f) Abandonment. In the case of an


abandoned vessel, onshore facility, deepwater port,


pipeline, or offshore facility, the persons who would have


been responsible parties immediately prior to the


abandonment of the vessel or facility, as defined in


section 1001(32) of OPA (33 U.S.C. 2701(32)).


Restoration means any action (or alternative), or


combination of actions (or alternatives), to restore,


rehabilitate, replace, or acquire the equivalent of injured


natural resources and services. Restoration includes: (a)


Primary restoration, which is any action, including natural


recovery, that returns injured natural resources and


services to baseline; and (b) Compensatory restoration,


which is any action taken to compensate for interim losses


of natural resources and services that occur from the date


of the incident until recovery.


Services (or natural resource services) means the functions


performed by a natural resource for the benefit of another


natural resource and/or the public.


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) of OPA.


United States and State means the several 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,


and any other territory or possession of the United States,


as defined in section 1001(36) of OPA (33 U.S.C. 2701(36)).


Value means the maximum amount of goods, services, or money


an individual is willing to give up to obtain a specific


good or service, or the minimum amount of goods, services,


or money an individual is willing to accept to forgo a


specific good or service. The total value of a natural


resource or service includes the value individuals derive


from direct use of the natural resource, for example,


swimming, boating, hunting, or birdwatching, as well as the


Chapter 6 6-70 

April 10, 2001 
value individuals derive from knowing a natural resource


will be available for future generations.


Vessel means every description of watercraft or other


artificial contrivance used, or capable of being used, as a


means of transportation on water, other than a public


vessel, as defined in section 1001(37) of OPA (33 U.S.C.


2701(37)).


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)


Determination of jurisdiction. 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 has


occurred, as defined in Sec. 990.30 of this part; (2) The


incident is not: (i) Permitted under a permit issued under


federal, state, or local law; or (ii) From a public vessel;


or (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 trustee


may have been, or may be, injured as a result of the


incident. (b) Proceeding with preassessment. If the


conditions listed in paragraph (a) of this section are met,


trustees may proceed under this part. If one of the


conditions is not met, trustees may not take additional


action under this part, except action to finalize this


determination. Trustees may recover all reasonable


assessment costs incurred up to this point provided that


conditions in paragraphs (a)(1) and (a)(2) of this section


were met and actions were taken with the reasonable belief


that natural resources or services under their trusteeship


might have been injured as a result of the incident.


Sec. 990.42 Determination to conduct restoration planning.


(a) Determination on restoration planning. If trustees


determine that there is jurisdiction to pursue restoration


under OPA, trustees must determine whether: (1) Injuries


have resulted, or are likely to result, from the incident;


(2) Response actions have not adequately addressed, or are


not expected to address, the injuries resulting from the


incident; and (3) Feasible primary and/or compensatory


restoration actions exist to address the potential


Chapter 6 6-71 

April 10, 2001 
injuries. (b) Proceeding with preassessment. If the


conditions listed in paragraph (a) of this section are met,


trustees may proceed under Sec. 990.44 of this part. If one


of these conditions is not met, trustees may not take


additional action under this part, except action to


finalize this determination. However, trustees may recover


all reasonable assessment costs incurred up to this point.


Sec. 990.43 Data collection. Trustees may conduct data


collection and analyses that are reasonably related to


Preassessment Phase activities. Data collection and


analysis during the Preassessment Phase must be coordinated


with response actions such that collection and analysis


does not interfere with response actions. Trustees may


collect and analyze 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.


Sec. 990.44 Notice of Intent to Conduct Restoration


Planning. (a) General. If trustees determine that all the


conditions under Sec. 990.42(a) of this part are met and


trustees decide to proceed with the natural resource damage


assessment, they must prepare a Notice of Intent to Conduct


Restoration Planning. (b) Contents of the notice. The


Notice of Intent to Conduct Restoration Planning must


include a discussion of the trustees' analyses under Secs.


990.41 and 990.42 of this part. Depending on information


available at this point, the notice may include the


trustees' proposed strategy to assess injury and determine


the type and scale of restoration. The contents of a notice


may vary, but will typically discuss: (1) The facts of the


incident; (2) Trustee authority to proceed with the


assessment; (3) Natural resources and services that are, or


are likely to be, injured as a result of the incident; (4)


Potential restoration actions relevant to the expected


injuries; and (5) If determined at the time, potential


assessment procedures to evaluate the injuries and define


the appropriate type and scale of restoration for the


injured natural resources and services. (c) Public


availability of the notice. Trustees must make a copy of


the Notice of Intent to Conduct Restoration Planning


publicly available. The means by which the notice is made


Chapter 6 6-72 

April 10, 2001 
publicly available and whether public comments are


solicited on the notice will depend on the nature and


extent of the incident and various information


requirements, and is left to the discretion of the


trustees. (d) Delivery of the notice to the responsible


parties. Trustees must send a copy of the notice to the


responsible parties, to the extent known, in such a way as


will establish the date of receipt, and invite responsible


parties' participation in the conduct of restoration


planning. Consistent with Sec. 990.14(c) of this part, the


determination of the timing, nature, and extent of


responsible party participation will be determined by the


trustees on an incident-specific basis.


Sec. 990.45 Administrative record. (a) If trustees decide


to proceed with restoration planning, they must open a


publicly available administrative record to document the


basis for their decisions pertaining to restoration. The


administrative record should be opened concurrently with


the publication of the Notice of Intent to Conduct


Restoration Planning. Depending on the nature and extent of


the incident and assessment, the administrative record


should include documents relied upon during the assessment,


such as: (1) Any notice, draft and final restoration plans,


and public comments; (2) Any relevant data, investigation


reports, scientific studies, work plans, quality assurance


plans, and literature; and (3) Any agreements, not


otherwise privileged, among the participating trustees or


with the responsible parties. (b) Federal trustees should


maintain the administrative record in a manner consistent


with the Administrative Procedure Act, 5 U.S.C. 551- 59,


701-06.


Subpart E--Restoration Planning Phase


Sec. 990.50 Purpose. The purpose of this subpart is to


provide a process by which trustees evaluate and quantify


potential injuries (injury assessment), and use that


information to determine the need for and scale of


restoration actions (restoration selection).


Sec. 990.51 Injury assessment--injury determination. (a)


General. After issuing a Notice of Intent to Conduct


Restoration Planning under Sec. 990.44 of this part,


trustees must determine if injuries to natural resources


and/or services have resulted from the incident. (b)


Determining injury. To make the determination of injury,


trustees must evaluate if: (1) The definition of injury has


been met, as defined in Sec. 990.30 of this part; and


Chapter 6 6-73 

April 10, 2001 
(2)(i) An injured natural resource has been exposed to the


discharged oil, and a pathway can be established from the


discharge to the exposed natural resource; or (ii) An


injury to a natural resource or impairment of a natural


resource service has occurred as a result of response


actions or a substantial threat of a discharge of oil. (c)


Identifying injury. Trustees must determine whether an


injury 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. (d) Establishing exposure


and pathway. Except for injuries resulting from response


actions or incidents involving a substantial threat of a


discharge of oil, trustees must establish whether natural


resources were exposed, either directly or indirectly, to


the discharged oil from the incident, and estimate the


amount or concentration and spatial and temporal extent of


the exposure. Trustees must also determine whether there is


a pathway linking the incident to the injuries. Pathways


may include, but are not limited to, the sequence of events


by which the discharged oil was transported from the


incident and either came into direct physical contact with


a natural resource, or caused an indirect injury. (e)


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 a natural


resource service has occurred as a result of the incident.


(f) Selection of injuries to include in the assessment.


When selecting potential injuries to assess, trustees


should consider factors such as: (1) The natural resources


and services of concern; (2) The procedures available to


evaluate and quantify injury, and associated time and cost


requirements; (3) The evidence indicating exposure; (4) The


pathway from the incident to the natural resource and/or


service of concern; (5) The adverse change or impairment


that constitutes injury; (6) The evidence indicating


injury; (7) The mechanism by which injury occurred; (8) The


potential degree, and spatial and temporal extent of the


injury; (9) The potential natural recovery period; and (10)


The kinds of primary and/or compensatory restoration


actions that are feasible.


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April 10, 2001 
Sec. 990.52 Injury assessment--quantification. (a) General.


In addition to determining whether injuries have resulted


from the incident, trustees must quantify the degree, and


spatial and temporal extent of such injuries relative to


baseline. (b) Quantification approaches. Trustees may


quantify injuries in terms of: (1) The degree, and spatial


and temporal extent of the injury to a natural resource;


(2) The degree, and spatial and temporal extent of injury


to a natural resource, with subsequent translation of that


adverse 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) Natural recovery. To quantify


injury, trustees must estimate, quantitatively or


qualitatively, the time for natural recovery without


restoration, but including any response actions. The


analysis of natural recovery may consider such factors as:


(1) The nature, degree, and spatial and temporal extent of


injury; (2) The sensitivity and vulnerability of the


injured natural resource and/or service; (3) The


reproductive and recruitment potential; (4) The resistance


and resilience (stability) of the affected environment; (5)


The natural variability; and (6) The physical/chemical


processes of the affected environment.


Sec. 990.53 Restoration selection--developing restoration


alternatives. (a) General. (1) If the information on injury


determination and quantification under Secs. 990.51 and


990.52 of this part and its relevance to restoration


justify restoration, trustees may proceed with the


Restoration Planning Phase. Otherwise, trustees may not


take additional action under this part. However, trustees


may recover all reasonable assessment costs incurred up to


this point. (2) Trustees must consider a reasonable range


of restoration alternatives before selecting their


preferred alternative(s). Each restoration alternative is


comprised of primary and/or compensatory restoration


components that address one or more specific injury(ies)


associated with the incident. Each alternative must be


designed so that, as a package of one or more actions, the


alternative would make the environment and public whole.


Only those alternatives considered technically feasible and


in accordance with applicable laws, regulations, or permits


may be considered further under this part. (b) Primary


restoration-- (1) General. For each alternative, trustees


must consider primary restoration actions, including a


natural recovery alternative. (2) Natural recovery.


Trustees must consider a natural recovery alternative in


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April 10, 2001 
which no human intervention would be taken to directly


restore injured natural resources and services to baseline.


(3) Active primary restoration actions. Trustees must


consider an alternative comprised of actions to directly


restore the natural resources and services to baseline on


an accelerated time frame. When identifying such active


primary restoration actions, trustees may consider actions


that: (i) Remove conditions that would prevent or limit the


effectiveness of any restoration action (e.g., residual


sources of contamination); (ii) May be necessary to return


the physical, chemical, and/or biological conditions


necessary to allow recovery or restoration of the injured


natural resources (e.g., replacing substrate or vegetation,


or modifying hydrologic conditions); or (iii) Return key


natural resources and services, and would be an effective


approach to achieving or accelerating a return to baseline


(e.g., replacing essential species, habitats, or public


services that would facilitate the replacement of other,


dependent natural resource or service components). (c)


Compensatory restoration-- (1) General. For each


alternative, trustees must also consider compensatory


restoration actions to compensate for the interim loss of


natural resources and services pending recovery. (2)


Compensatory restoration actions. To the extent


practicable, when evaluating compensatory restoration


actions, trustees must consider compensatory restoration


actions that provide services of the same type and quality,


and of comparable value as those injured. If, in the


judgment of the trustees, compensatory actions of the same


type and quality and comparable value cannot provide a


reasonable range of alternatives, trustees should identify


actions that provide natural resources and services of


comparable type and quality as those provided by the


injured natural resources. Where the injured and


replacement natural resources and services are not of


comparable value, the scaling process will involve


valuation of lost and replacement services. (d) Scaling


restoration actions-- (1) General. After trustees have


identified the types of restoration actions that will be


considered, they must determine the scale of those actions


that will make the environment and public whole. For


primary restoration actions, scaling generally applies to


actions involving replacement and/or acquisition of


equivalent of natural resources and/or services. (2)


Resource-to-resource and service-to-service scaling


approaches. When determining the scale of restoration


actions that provide natural resources and/or services of


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April 10, 2001 
the same type and quality, and of comparable value as those


lost, trustees must consider the use of a resource-to-


resource or service-to-service scaling approach. Under this


approach, trustees determine the scale of restoration


actions that will provide natural resources and/or services


equal in quantity to those lost. (3) Valuation scaling


approach. (i) Where trustees have determined that neither


resource-to-resource nor service-to-service scaling is


appropriate, trustees may use the valuation scaling


approach. Under the valuation scaling approach, trustees


determine the amount of natural resources and/or services


that must be provided to produce the same value lost to the


public. Trustees must explicitly measure the value of


injured natural resources and/or services, and then


determine the scale of the restoration action necessary to


produce natural resources and/or services of equivalent


value to the public. (ii) If, in the judgment of the


trustees, valuation of the lost services is practicable,


but valuation of the replacement natural resources and/or


services cannot be performed within a reasonable time frame


or at a reasonable cost, as determined by Sec. 990.27(a)(2)


of this part, trustees may estimate the dollar value of the


lost services and select the scale of the restoration


action that has a cost equivalent to the lost value. The


responsible parties may request that trustees value the


natural resources and services provided by the restoration


action following the process described in Sec. 990.14(c) of


this part. (4) Discounting and uncertainty. When scaling a


restoration action, trustees must evaluate the


uncertainties associated with the projected consequences of


the restoration action, and must discount all service


quantities and/or values to the date the demand is


presented to the responsible parties. Where feasible,


trustees should use risk-adjusted measures of losses due to


injury and of gains from the restoration action, in


conjunction with a riskless discount rate representing the


consumer rate of time preference. 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.


Sec. 990.54 Restoration selection--evaluation of


alternatives. (a) Evaluation standards. Once trustees have


developed a reasonable range of restoration alternatives


under Sec. 990.53 of this part, they must evaluate the


proposed alternatives based on, at a minimum: (1) The cost


to carry out the alternative; (2) The extent to which each


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April 10, 2001 
alternative is expected to meet the trustees' goals and


objectives in returning the injured natural resources and


services to baseline and/or compensating for interim


losses; (3) The likelihood of success of each alternative;


(4) The extent to which each alternative will prevent


future injury as a result of the incident, and avoid


collateral injury as a result of implementing the


alternative; (5) The extent to which each alternative


benefits more than one natural resource and/or service; and


(6) The effect of each alternative on public health and


safety. (b) Preferred restoration alternatives. Based on an


evaluation of the factors under paragraph (a) of this


section, trustees must select a preferred restoration


alternative(s). If the trustees conclude that two or more


alternatives are equally preferable based on these factors,


the trustees must select the most cost-effective


alternative. (c) Pilot projects. Where additional


information is needed to identify and evaluate the


feasibility and likelihood of success of restoration


alternatives, trustees may implement restoration pilot


projects. Pilot projects should only be undertaken when, in


the judgment of the trustees, these projects are likely to


provide the information, described in paragraph (a) of this


section, at a reasonable cost and in a reasonable time


frame.


Sec. 990.55 Restoration selection--developing restoration


plans. (a) General. OPA requires that damages be based upon


a plan developed with opportunity for public review and


comment. To meet this requirement, trustees must, at a


minimum, develop a Draft and Final Restoration Plan, with


an opportunity for public review of and comment on the


draft plan. (b) Draft Restoration Plan. (1) The Draft


Restoration Plan should include: (i) A summary of injury


assessment procedures used; (ii) A description of the


nature, degree, and spatial and temporal extent of injuries


resulting from the incident; (iii) The goals and objectives


of restoration; (iv) The range of restoration alternatives


considered, and a discussion of how such alternatives were


developed under Sec. 990.53 of this part, and evaluated


under Sec. 990.54 of this part; (v) Identification of the


trustees' tentative preferred alternative(s); (vi) A


description of past and proposed involvement of the


responsible parties in the assessment; and (vii) A


description of monitoring for documenting restoration


effectiveness, including performance criteria that will be


used to determine the success of restoration or need for


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April 10, 2001 
interim corrective action. (2) When developing the Draft


Restoration Plan, trustees must establish restoration


objectives that are specific to the injuries. These


objectives should clearly specify the desired outcome, and


the performance criteria by which successful restoration


will be judged. Performance criteria may include


structural, functional, temporal, and/ or other


demonstrable factors. Trustees must, at a minimum,


determine what criteria will: (i) Constitute success, such


that responsible parties are relieved of responsibility for


further restoration actions; or (ii) Necessitate corrective


actions in order to comply with the terms of a restoration


plan or settlement agreement. (3) The monitoring component


to the Draft Restoration Plan should address such factors


as duration and frequency of monitoring needed to gauge


progress and success, level of sampling needed to detect


success or the need for corrective action, and whether


monitoring of a reference or control site is needed to


determine progress and success. Reasonable monitoring and


oversight costs cover those activities necessary to gauge


the progress, performance, and success of the restoration


actions developed under the plan. (c) Public review and


comment. The nature of public review and comment on the


Draft and Final Restoration Plans will depend on the nature


of the incident and any applicable federal trustee NEPA


requirements, as described in Secs. 990.14(d) and 990.23 of


this part. (d) Final Restoration Plan. Trustees must


develop a Final Restoration Plan that includes the


information specified in paragraph (a) of this section,


responses to public comments, if applicable, and an


indication of any changes made to the Draft Restoration


Plan.


Sec. 990.56 Restoration selection--use of a Regional


Restoration Plan or existing restoration project. (a)


General. Trustees may consider using a Regional Restoration


Plan or existing restoration project where such a plan or


project is determined to be the preferred alternative among


a range of feasible restoration alternatives for an


incident, as determined under Sec. 990.54 of this part.


Such plans or projects must be capable of fulfilling OPA's


intent for the trustees to restore, rehabilitate, replace,


or acquire the equivalent of the injured natural resources


and services and compensate for interim losses. (b)


Existing plans or projects--(1) Considerations. Trustees


may select a component of a Regional Restoration Plan or an


existing restoration project as the preferred alternative,


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April 10, 2001 
provided that the plan or project: (i) Was developed with


public review and comment or is subject to public review


and comment under this part; (ii) Will adequately


compensate the environment and public for injuries


resulting from the incident; (iii) Addresses, and is


currently relevant to, the same or comparable natural


resources and services as those identified as having been


injured; and (iv) Allows for reasonable scaling relative to


the incident. (2) Demand. (i) If the conditions of


paragraph (b)(1) of this section are met, the trustees must


invite the responsible parties to implement that component


of the Regional Restoration Plan or existing restoration


project, or advance to the trustees the trustees'


reasonable estimate of the cost of implementing that


component of the Regional Restoration Plan or existing


restoration project. (ii) If the conditions of paragraph


(b)(1) of this section are met, but the trustees determine


that the scale of the existing plan or project is greater


than the scale of compensation required by the incident,


trustees may only request funding from the responsible


parties equivalent to the scale of the restoration


determined to be appropriate for the incident of concern.


Trustees may pool such partial recoveries until adequate


funding is available to successfully implement the existing


plan or project. (3) Notice of Intent To Use a Regional


Restoration Plan or Existing Restoration Project. If


trustees intend to use an appropriate component of a


Regional Restoration Plan or existing restoration project,


they must prepare a Notice of Intent to Use a Regional


Restoration Plan or Existing Restoration Project. Trustees


must make a copy of the notice publicly available. The


notice must include, at a minimum: (i) A description of the


nature, degree, and spatial and temporal extent of


injuries; and (ii) A description of the relevant component


of the Regional Restoration Plan or existing restoration


project; and (iii) An explanation of how the conditions set


forth in paragraph (b)(1) of this section are met.


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. Within a


reasonable time after the trustees have completed


restoration planning, as provided in Secs. 990.55 and


990.56 of this part, they must close the administrative


Chapter 6 6-80 

April 10, 2001 
record. Trustees may not add documents to the


administrative record once it is closed, except where such


documents: (1) Are offered by interested parties 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, as provided in Sec. 990.45


of this part. The costs associated with the administrative


record are part of the costs of restoration. Ordinarily,


the administrative record for implementation of restoration


should document, at a minimum, all Restoration


Implementation Phase decisions, actions, and expenditures,


including any modifications made to the Final Restoration


Plan.


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


parties. (b) When a Final Restoration Plan has been


developed. Except as provided in paragraph (c) of this


section and in Sec. 990.14(c) of this part, the demand must


invite the responsible parties to either: (1) Implement the


Final Restoration Plan subject to trustee oversight and


reimburse the trustees for their assessment and oversight


costs; or (2) Advance to the trustees a specified sum


representing trustee assessment costs and all trustee costs


associated with implementing the Final Restoration Plan,


discounted as provided in Sec. 990.63(a) of this part. (c)


Regional Restoration Plan or existing restoration project.


When the trustees use a Regional Restoration Plan or an


existing restoration project under Sec. 990.56 of this


part, the demand will invite the responsible parties to


implement a component of a Regional Restoration Plan or


existing restoration project, or advance the trustees'


estimate of damages based on the scale of the restoration


determined to be appropriate for the incident of concern,


which may be the entire project or a portion thereof. (d)


Response to demand. The responsible parties must respond


within ninety (90) calendar days in writing by paying or


providing binding assurance they will reimburse trustees'


assessment costs and implement the plan or pay assessment


Chapter 6 6-81 

April 10, 2001 
costs and the trustees' estimate of the costs of


implementation. (e) Additional contents of demand. The


demand must also include: (1) Identification of the


incident from which the claim arises; (2) Identification of


the trustee(s) asserting the claim and a statement of the


statutory basis for trusteeship; (3) A brief description of


the injuries for which the claim is being brought; (4) An


index to the administrative record; (5) The Final


Restoration Plan or Notice of Intent to Use a Regional


Restoration Plan or Existing Restoration Project; and (6) A


request for reimbursement of: (i) Reasonable assessment


costs, as defined in Sec. 990.30 of this part and


discounted as provided in Sec. 990.63(b) of this part; (ii)


The cost, if any, of conducting emergency restoration under


Sec. 990.26 of this part, discounted as provided in Sec.


990.63(b) of this part; and (iii) Interest on the amounts


recoverable, as provided in section 1005 of OPA (33 U.S.C.


2705), which allows for prejudgment and post- judgment


interest to be paid at a commercial paper rate, starting


from thirty (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 should


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, trustees must compound


the 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 U.S. Treasury rates of various


maturities and 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).


Chapter 6 6-82 

April 10, 2001 
Sec. 990.64 Unsatisfied demands. (a) If the responsible


parties do not agree to the demand within ninety (90)


calendar days after trustees present the demand, the


trustees may either file a judicial action for damages or


seek an appropriation from the Oil Spill Liability Trust


Fund, as provided in section 1012(a)(2) of OPA (33 U.S.C.


2712(a)(2)). (b) Judicial actions and claims must be filed


within three (3) years after the Final Restoration Plan or


Notice of Intent to Use a Regional Restoration Plan or


Existing Restoration Project is made publicly available, in


accordance with 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 or all or an appropriate component


of a Regional Restoration Plan or an existing restoration


project. 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


criteria and procedures, and personnel for authorizing


expenditures out of such joint accounts. (c) Interest-


bearing accounts. Trustees may place recoveries in


interest-bearing revolving trust accounts, as provided by


section 1006(f) of OPA (33 U.S.C. 2706(f)). Interest earned


on such accounts may only be used for restoration. (d)


Escrow accounts. Trustees may establish escrow accounts or


other investment accounts. (e) Records. Trustees must


maintain appropriate accounting and reporting procedures 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, as provided by section 1006(f) of OPA (33


U.S.C. 2706(f)).


Sec. 990.66 Additional considerations. (a) Upon settlement


of a claim, trustees should consider the following actions


to facilitate implementation of restoration: (1) Establish


Chapter 6 6-83 

April 10, 2001 
a trustee committee and/or memorandum of understanding or


other agreement to coordinate among affected trustees, as


provided in Sec. 990.14(a)(3) of this part; (2) Develop


more detailed workplans to implement restoration; (3)


Monitor and oversee restoration; and (4) Evaluate


restoration success and the need for corrective action. (b)


The reasonable costs of such actions are included as


restoration costs.


Chapter 6 6-84 

April 10, 2001 
Code of Federal Regulations

TITLE 33--NAVIGATION AND NAVIGABLE WATERS 

CHAPTER I--COAST GUARD, DEPARTMENT OF TRANSPORTATION 

(CONTINUED) 

PART 136--OIL SPILL LIABILITY TRUST FUND; CLAIMS PROCEDURES;

DESIGNATION OF SOURCE; AND ADVERTISEMENT

Subpart A--General 

Sec. 

136.1 Purpose and applicability. 

136.3 Information. 

136.5 Definitions. 

136.7 Foreign claimants. 

136.9 Falsification of claims. 

Subpart B--General Procedure 

136.101 Time limitations on claims. 

136.103 Order of presentment. 

136.105 General requirements for a claim. 

136.107 Subrogated claims. 

136.109 Removal costs and multiple items of damages. 

136.111 Insurance. 

136.113 Other compensation. 

136.115 Settlement and notice to claimant. 

Subpart C--Procedure for Particular Claims 

Removal Costs 

136.201 Authorized claimants. 

136.203 Proof. 

136.205 Compensation allowable. 

Natural Resources 

136.207 Authorized claimants. 

136.209 Proof. 

136.211 Compensation allowable. 

Real or Personal Property 

136.213 Authorized claimants. 

136.215 Proof. 

136.217 Compensation allowable. 

Chapter 6 6-85 

April 10, 2001 
Subsistence Use 

136.219 Authorized claimants. 

136.221 Proof. 

136.223 Compensation allowable. 

Government Revenues 

136.225 Authorized claimants. 

136.227 Proof. 

136.229 Compensation allowable. 

Profits and Earning Capacity 

136.231 Authorized claimants. 

136.233 Proof. 

136.235 Compensation allowable. 

Government Public Services 

136.237 Authorized claimants. 

136.239 Proof. 

136.241 Compensation allowable. 

Subpart D--Designation of Source and Advertisement 

General 

136.301 Purpose. 

136.303 Definitions. 

Designation of Source 

136.305 Notice of designation. 

136.307 Denial of designation. 

Advertisement 

136.309 Advertisement determinations. 

136.311 Types of advertisement. 

136.313 Content of advertisement. 

Chapter 6 6-86 

April 10, 2001 
Authority: 33 U.S.C. 2713, 2714; E.O. 12777, 3 CFR, 1991 Comp., p. 351; 49 CFR 1.46. 

Source: CGD 91-035, 57 FR 36316, Aug. 12, 1992, unless otherwise noted. 

Subpart A--General 

Sec. 136.1 Purpose and applicability. 

(a) This part prescribes regulations for— 

(1) Presentation, filing, processing, settlement, and adjudication of claims 

authorized to be presented to the Oil Spill Liability Trust Fund (the Fund) 

under section 1013 of the Oil Pollution Act of 1990 (the Act) (33 U.S.C. 

2713) for certain uncompensated removal costs or uncompensated damages 

resulting from the discharge, or substantial threat of discharge, of oil from a 

vessel or facility into or upon the navigable waters, adjoining shorelines, or 

the exclusive economic zone; 

(2) Designation of the source of the incident, notification to the responsible party 

of the designation, and advertisement of the designation and claims 

procedures; and 

(3) Other related matters. 

(b) This part applies to claims resulting from incidents occurring after August 18, 

1990. 

(c) Nothing in this part-

(1) Preempts the authority of any State or political subdivision thereof from 

imposing any additional liability or requirements with respect to--

(i) The discharge of oil or other pollution by oil within such State; or 

(ii) Any removal activities in connection with such a discharge; or 

(2) Affects or modifies in any way the obligations or liabilities of any person 

under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, 

including common law; or 

(3) Affects the authority of any State-

(i) To establish, or to continue in effect, a fund any purpose of which is to 

pay for costs or damages arising out of, or directly resulting from, oil 

pollution or the substantial threat of oil pollution; or 

(ii) To require any person to contribute to such a fund; or 

(4) Affects the authority of the United States or any State or political subdivision 

thereof to impose additional liability or additional requirements relating to a 

discharge, or substantial threat of a discharge, of oil. 

Sec. 136.3 Information. 

Anyone desiring to file a claim against the Fund may obtain general information on the 

procedure for filing a claim from the Director, National Pollution Funds Center, suite 

1000, 4200 Wilson Boulevard, Arlington, Virginia 22203-1804, (703) 235-4756. 

Sec. 136.5 Definitions. 

Chapter 6 6-87 

April 10, 2001 
(a) As used in this part, the following terms have the same meaning as set forth in 

sections 1001 and 1007(c) of the Act (33 U.S.C. 2701 and 2707(c)): Claim, 

claimant, damages, discharge, exclusive economic zone, facility, foreign claimant, 

foreign offshore unit, Fund, guarantor, incident, National Contingency Plan, natural 

resources, navigable waters, offshore facility, oil, onshore facility, owner or 

operator, person, removal costs, responsible party, State, United States, and vessel. 

(b) As used in this part— 

Act means title I of the Oil Pollution Act of 1990 (Pub. L. 101-380; 33 U.S.C. 2701 

through 719). 

Director, NPFC, means the person in charge of the U.S. Coast Guard 

National Pollution Funds Center or that person's authorized representative. 

FOSC means the Federal On-Scene Coordinator designated under the National 

Contingency Plan or that person's authorized representative. 

NPFC means the U.S. Coast Guard National Pollution Funds Center, suite 1000, 

4200 Wilson Boulevard, Arlington, Virginia 22203-1804. 

Sec. 136.7 Foreign claimants. 

In addition to other applicable limitations on presenting claims to the Fund, claims by 

foreign claimants to recover removal costs or damages may be presented only when the 

requirements of section 1007 of the Act (33 U.S.C. 2707) are met. 

Sec. 136.9 Falsification of claims. 

Persons submitting false claims or making false statements in connection with claims 

under his part may be subject to prosecution under Federal law, including but not limited 

to 18 U.S.C. 287 and 1001. In addition, persons submitting written documentation in 

support of claims under this part which they know, or should know, is false or omits a 

material fact may be subject to a civil penalty for each claim. If any payment is made on 

the claim, the claimant may also be subject to an assessment of up to twice the amount 

claimed. These civil sanctions may be imposed under the Program Fraud Civil Remedies 

Act, 31 U.S.C. 3801-3812, as implemented in 49 CFR part 31. 

[CGD 91-035, 57 FR 36316, Aug. 12, 1992, as amended by CGD 96-052, 62 FR 16703, 

Apr. 8, 1997] 

Subpart B--General Procedure 

Sec. 136.101 Time limitations on claims. 

(a) Except as provided under section 1012(h)(3) of the Act (33 U.S.C. 2712(h)(3)) 

(minors and incompetents), the Fund will consider a claim only if presented in 

writing to the Director, NPFC, within the following time limits: 

(1) For damages, within three years after-

(i) The date on which the injury and its connection with the incident in 

question were reasonably discoverable with the exercise of due care. 

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April 10, 2001 
(ii) In the case of natural resources damages under section 1002(b)(2)(A) of the 

Act (33 U.S.C. 2702(b)(2)(A)), the date under paragraph (a)(1)(i) of this 

section, or within three years from the date of completion of the natural 

resources damage assessment under section 1006(e) of the Act (33 U.S.C. 

2706(e)), whichever is later. 

(2) For removal costs, within six years after the date of completion of all removal 

actions for the incident. As used in this paragraph, "date of completion of all 

removal actions'' is defined as the actual date of completion of all removal actions 

for the incident or the date the FOSC determines that the removal actions which 

form the basis for the costs being claimed are completed, whichever is earlier. 

(b) Unless the Director, NPFC, directs in writing that the claim be submitted 

elsewhere, a claim is deemed presented on the date the claim is actually received 

at the National Pollution Funds Center, suite 1000, 4200 Wilson Boulevard, 

Arlington, Virginia 22203-1804. If the Director, NPFC, directs that the claim be 

presented elsewhere, the claim is deemed presented on the date the claim is 

actually received at the address in the directive. 

[CGD 91-035, 57 FR 36316, Aug. 12, 1992; 57 FR 41104, Sept. 9, 1992] 

Sec. 136.103 Order of presentment. 

(a) Except as provided in paragraph (b) of this section, all claims for removal costs 

or damages must be presented first to the responsible party or guarantor of the 

source designated under Sec. 136.305. 

(b) Claims for removal costs or damages may be presented first to the Fund only-

(1) By any claimant, if the Director, NPFC, has advertised, or otherwise 

notified claimants in writing, in accordance with Sec. 136.309(e); 

(2) By a responsible party who may assert a claim under section 1008 of the 

Act (33 U.S.C. 2708); 

(3) By the Governor of a State for removal costs incurred by that State; or 

(4) By a United States claimant in a case where a foreign offshore unit has 

discharged oil causing damage for which the Fund is liable under section 

1012(a) of the Act (33 U.S.C. 712(a)). 

(c) If a claim is presented in accordance with paragraph (a) of this section and— 

(1) Each person to whom the claim is presented denies all liability for the 

claim; or 

(2) The claim is not settled by any person by payment within 90 days after the 

date upon which (A) the claim was presented, or (B) advertising was begun 

pursuant to Sec. 136.309(d), whichever is later, the claimant may elect to 

commence an action in court against the responsible party or guarantor or to 

present the claim to the Fund. 

(d) No claim of a person against the Fund will be approved or certified for payment 

during the pendency of an action by the person in court to recover costs which 

are the subject of the claim. 

[CGD 91-035, 57 FR 36316, Aug. 12, 1992; 57 FR 41104, Sept. 9, 1992] 

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April 10, 2001 
Sec. 136.105 General requirements for a claim. 

(a) The claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim. 

(b) Each claim must be in writing for a sum certain for compensation for each category 

of uncompensated damages or removal costs (as described in Subpart C of this part) 

resulting from an incident. If at any time during the pendency of a claim against the 

Fund the claimant receives any compensation for the claimed amounts, the claimant 

shall immediately amend the claim. 

(c) Each claim must be signed in ink by the claimant certifying to the best of the 

claimant's knowledge and belief that the claim accurately reflects all material facts. 

(d) In addition to the other requirements of this section, any claim presented by a legal 

representative of the claimant must also be signed by the legal representative and--

(1) Be presented in the name of the claimant; 

(2) Show the title or legal capacity of the representative; and 

(3) Provide proof of authority to act for the claimant. 

(e) Each claim must include at least the following, as applicable: 

(1) The full name, street and mailing addresses of residence and business, and 

telephone numbers of the claimant. 

(2) The date, time, and place of the incident giving rise to the claim. 

(3) The identity of the vessel, facility, or other entity causing or suspected to 

have caused the removal costs or damages claimed and the basis for such 

identity or belief. 

(4) A general description of the nature and extent of the impact of the incident, 

the costs associated with removal actions, and damages claimed, by 

category as delineated in Subpart C of this part, including, for any 

property, equipment, or similar item damaged, the full name, street and 

mailing address, and telephone number of the actual owner, if other than 

the claimant. 

(5) An explanation of how and when the removal costs or damages were 

caused by, or resulted from, an incident. 

(6) Evidence to support the claim. 

(7) A description of the actions taken by the claimant, or other person on the 

claimant's behalf, to avoid or minimize removal costs or damages claimed. 

(8) The reasonable costs incurred by the claimant in assessing the damages 

claimed. This includes the reasonable costs of estimating the damages 

claimed, but not attorney's fees or other administrative costs associated 

with preparation of the claim. 

(9) To the extent known or reasonably identifiable by the claimant, the full 

name, street and mailing address, and telephone number of each witness 

to the incident, to the discharge, or to the removal costs or damages 

claimed, along with a brief description of that person's knowledge. 

(10) A copy of written communications and the substance of verbal 

communications, if any, between the claimant and the responsible party 

or guarantor of the source designated under Sec. 136.305 and a statement 

indicating that the claim was presented to the responsible party or guarantor, 

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April 10, 2001 
the date it was presented, that it was denied or remains not settled and, if 

known, the reason why it was denied or remains not settled. 

(11) If the claimant has insurance which may cover the removal costs or damages 

claimed, the information required under Sec. 136.111. 

(12) A statement by the claimant that no action has been commenced in court 

against the responsible party or guarantor of the source designated under 

Sec. 136.305 or, if an action has been commenced, a statement identifying 

the claimant's attorney and the attorney's address and phone number, the 

civil action number, and the court in which the action is pending. 

(13) In the discretion of the Director, NPFC, any other information deemed 

relevant and necessary to properly process the claim for payment. 

Sec. 136.107 Subrogated claims. 

(a) The claims of subrogor (e.g., insured) and subrogee (e.g., insurer) for removal 

costs and damages arising out of the same incident should be presented together 

and must be signed by all claimants. 

(b) A fully subrogated claim is payable only to the subrogee. 

(c) A subrogee must support a claim in the same manner as any other claimant. 

Sec. 136.109 Removal costs and multiple items of damages. 

(a) A claimant must specify all of the claimant's known removal costs or damages 

arising out of a single incident when submitting a claim. 

(b) Removal costs and each separate category of damages (as described in subpart C 

of this part) must be separately listed with a sum certain attributed to each type 

and category listed. 

(c) At the sole discretion of the Director, NPFC, removal costs and each separate 

category of damages may be treated separately for settlement purposes. 

Sec. 136.111 Insurance. 

(a) A claimant shall provide the following information concerning any insurance 

which may cover the removal costs or damages for which compensation is 

claimed: 

(1) The name and address of each insurer. 

(2) The kind and amount of coverage. 

(3) The policy number. 

(4) Whether a claim has been or will be presented to an insurer and, if so, the 

amount of the claim and the name of the insurer. 

(5) Whether any insurer has paid the claim in full or in part or has indicated 

whether or not payment will be made. 

(b) If requested by the Director, NPFC, the claimant shall provide a copy of the 

following material: 

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April 10, 2001 
(1) All insurance policies or indemnification agreements. 

(2) All written communications, and a summary of all oral communications, 

with any insurer or indemnifier. 

(c) A claimant shall advise the Director, NPFC, of any changes in the information 

provided under this section. 

Sec. 136.113 Other compensation. 

A claimant must include an accounting, including the source and value, of all other 

compensation received, applied for, or potentially available as a consequence of the 

incident out of which the claim arises including, but not limited to, monetary payments, 

goods or services, or other benefits. 

Sec. 136.115 Settlement and notice to claimant. 

(a) Payment in full, or acceptance by the claimant of an offer of settlement by the Fund, 

is final and conclusive for all purposes and, upon payment, constitutes a release of 

the Fund for the claim. In addition, acceptance of any compensation from the Fund 

precludes the claimant from filing any subsequent action against any person to 

recover costs or damages which are the subject of the compensated claim. 

Acceptance of any compensation also constitutes an agreement by the claimant to 

assign to the Fund any rights, claims, and causes of action the claimant has against 

any person for the costs and damages which are the subject of the compensated 

claims and to cooperate reasonably with the Fund in any claim or action by the 

Fund against any person to recover the amounts paid by the Fund. The cooperation 

shall include, but is not limited to, immediately reimbursing the Fund for any 

compensation received from any other source for the same costs and damages and 

providing any documentation, evidence, testimony, and other support, as may be 

necessary for the Fund to recover from any person. 

(b) Claimant's failure to accept an offer of settlement within 60 days after the date the 

offer was mailed to the claimant automatically voids the offer. The Director, NPFC, 

reserves the right to revoke an offer at any time. 

(c) A claimant will be notified in writing sent by certified or registered mail whenever 

a claim against the Fund is denied. The failure of the Director, NPFC, to make final 

disposition of a claim within six months after it is filed shall, at the option of the 

claimant any time thereafter, be deemed a final denial of the claim. 

(d) The Director, NPFC, upon written request of the claimant or of a person duly 

authorized to act on the claimant's behalf, reconsiders any claim denied. The request 

for reconsideration must be in writing and include the factual or legal grounds for 

the relief requested, providing any additional support for the claim. The request 

must be received by the Director, NPFC, within 60 days after the date the denial 

was mailed to the claimant or within 30 days after receipt of the denial by the 

claimant, whichever date is earlier. Reconsideration may only be requested once for 

each claim denied. The Director, NPFC will provide the claimant seeking 

reconsideration with written notification of the decision within 90 days after receipt 

of the request for reconsideration. This written decision is final. The failure of the 

Director, NPFC, to make final disposition of a reconsideration within 90 days after 

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April 10, 2001 
it is received shall, at the option of the claimant any time thereafter, be deemed a 

final denial of the reconsideration. 

Subpart C--Procedures for Particular Claims 

Removal Costs 

Sec. 136.201 Authorized claimants. 

A claim for removal costs may be presented by any claimant. 

Sec. 136.203 Proof. 

In addition to the requirements of Subparts A and B of this part, a claimant must 

establish--

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects 

of the incident; 

(b) That the removal costs were incurred as a result of these actions; 

(c) That the actions taken were determined by the FOSC to be consistent with the 

National Contingency Plan or were directed by the FOSC. 

Sec. 136.205 Compensation allowable. 

The amount of compensation allowable is the total of uncompensated reasonable removal 

costs of actions taken that were determined by the FOSC to be consistent with the 

National Contingency Plan or were directed by the FOSC. Except in exceptional 

circumstances, removal activities for which costs are being claimed must have been 

coordinated with the FOSC. 

Natural Resources 

Sec. 136.207 Authorized claimants. 

(a) Claims for uncompensated natural resource damages may be presented by an 

appropriate natural resources Trustee. However, in order to facilitate the processing 

of these claims with respect to a single incident where multiple Trustees are 

involved and to prevent double recovery, the affected Trustees should select a lead 

administrative Trustee who will present consolidated claims on behalf of the 

Trustees. 

(b) A Trustee may present a claim for the reasonable cost of assessing natural resources 

damages separately from a claim for the cost of developing and implementing plans 

for the restoration, rehabilitation, replacement, or acquisition of the equivalent of 

the natural resources damaged. 

Sec. 136.209 Proof. 

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April 10, 2001 
In addition to the requirements of subparts A and B of this part, a Trustee must do the 

following: 

(a) Submit the assessment and restoration plans which form the basis of the claim. 

(b) Provide documented costs and cost estimates for the claim. Final cost estimates for 

conducting damage assessments or implementing a restoration plan may form the 

basis for a claim against the Fund for an uncompensated natural resources damage 

claim. 

(c) Identify all Trustees who may be potential claimants for the same natural resources 

damaged. 

(d) Certify the accuracy and integrity of any claim submitted to the Fund, and certify 

that any actions taken or proposed were or will be conducted in accordance with the 

Act and consistent with all applicable laws and regulations. 

(e) Certify whether the assessment was conducted in accordance with applicable 

provisions of the natural resources damage assessment regulations promulgated 

under section 1006(e)(1) of the Act (33 U.S.C. 2706(e)(1)). Identify any other or 

additional damage assessment regulations or methodology utilized. 

(f) Certify that, to the best of the Trustee's knowledge and belief, no other Trustee has 

the right to present a claim for the same natural resources damages and that 

payment of any subpart of the claim presented would not constitute a double 

recovery for the same natural resources damages. 

Sec. 136.211 Compensation allowable. 

(a) The amount of compensation allowable is the reasonable cost of assessing damages, 

and the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the 

damaged natural resources. 

(b) In addition to any other provision of law respecting the use of sums recovered for 

natural resources damages, Trustees shall reimburse the Fund for any amounts 

received from the Fund in excess of that amount required to accomplish the 

activities for which the claim was paid. 

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April 10, 2001 
Real or Personal Property 

Sec. 136.213 Authorized claimants. 

(a) A claim for injury to, or economic losses resulting from the destruction of, real or 

personal property may be presented only by a claimant either owning or leasing the 

property. 

(b) Any claim for loss of profits or impairment of earning capacity due to injury to, 

destruction of, or loss of real or personal property must be included as subpart of 

the claim under this section and must include the proof required under Sec. 

136.233. 

Sec. 136.215 Proof. 

(a) In addition to the requirements of subparts A and B of this part, a claimant must 

establish— 

(1) An ownership or leasehold interest in the property; 

(2) That the property was injured or destroyed; 

(3) The cost of repair or replacement; and 

(4) The value of the property both before and after injury occurred. 

(b) In addition, for each claim for economic loss resulting from destruction of real or 

personal property, the claimant must establish-

(1) That the property was not available for use and, if it had been, the value of 

that use; 

(2) Whether or not substitute property was available and, if used, the costs 

thereof; and 

(3) That the economic loss claimed was incurred as the result of the injury to or 

destruction of the property. 

Sec. 136.217 Compensation allowable. 

(a) The amount of compensation allowable for damaged property is the lesser of— 

(1) Actual or estimated net cost of repairs necessary to restore the property to 

substantially the same condition which existed immediately before the 

damage; 

(2) The difference between value of the property before and after the damage; or 

(3) The replacement value. 

(b) Compensation for economic loss resulting from the destruction of real or personal 

property may be allowed in an amount equal to the reasonable costs actually 

incurred for use of substitute commercial property or, if substitute commercial 

property was not reasonably available, in an amount equal to the net economic loss 

which resulted from not having use of the property. When substitute commercial 

property was reasonably available, but not used, allowable compensation for loss of 

use is limited to the cost of the substitute commercial property, or the property lost, 

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April 10, 2001 
whichever is less. Compensation for loss of use of noncommercial property is not 

allowable. 

(c) Compensation for a claim for loss of profits or impairment of earning capacity 

under Sec. 136.213(b) is limited to that allowable under Sec. 136.235. 

Subsistence Use 

Sec. 136.219 Authorized claimants. 

(a) A claim for loss of subsistence use of natural resources may be presented 

only by a claimant who actually uses, for subsistence, the natural resources 

which have been injured, destroyed, or lost, without regard to the ownership or 

management of the resources. 

(b) A claim for loss of profits or impairment of earning capacity due to loss of 

subsistence use of natural resources must be included as part of the claim 

under this section and must include the proof required under Sec. 136.233. 

Sec. 136.221 Proof. 

In addition to the requirements of subparts A and B of this part, a claimant must provide-

(a) The identification of each specific natural resource for which compensation for loss 

of subsistence use is claimed; 

(b) A description of the actual subsistence use made of each specific natural resource 

by the claimant; 

(c) A description of how and to what extent the claimant's subsistence use was affected 

by the injury to or loss of each specific natural resource; 

(d) A description of each effort made by the claimant to mitigate the claimant's loss of 

subsistence use; and 

(e) A description of each alternative source or means of subsistence available to the 

claimant during the period of time for which loss of subsistence is claimed, and any 

compensation available to the claimant for loss of subsistence. 

Sec. 136.223 Compensation allowable. 

(a) The amount of compensation allowable is the reasonable replacement cost of the 

subsistence loss suffered by the claimant if, during the period of time for which the 

loss of subsistence is claimed, there was no alternative source or means of 

subsistence available. 

(b) The amount of compensation allowable under paragraph (a) of this section must be 

reduced by— 

(1) All compensation made available to the claimant to compensate for 

subsistence loss; 

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April 10, 2001 
(2) All income which was derived by utilizing the time which otherwise 

would have been used to obtain natural resources for subsistence use; and 

(3) Overheads or other normal expenses of subsistence use not incurred 

as a result of the incident. 

(c) Compensation for a claim for loss of profits or impairment of earning capacity 

under Sec. 136.219(b) is limited to that allowable under Sec. 136.235. 

Government Revenues 

Sec. 136.225 Authorized claimants. 

A claim for net loss of revenue due to the injury, destruction, or loss of real property, 

personal property, or natural resources may be presented only by an appropriate claimant 

sustaining the loss. As used in this section and Sec. 136.277, ``revenue'' means taxes, 

royalties, rents, fees, and net profit shares. 

Sec. 136.227 Proof. 

In addition to the requirements of Subparts A and B, a claimant must establish-

(a) The identification and description of the economic loss for which compensation is 

claimed, including the applicable authority, property affected, method of 

assessment, rate, and method and dates of collection; 

(b) That the loss of revenue was due to the injury to, destruction of, or loss of real or 

personal property or natural resources; 

(c) The total assessment or revenue collected for comparable revenue periods; and 

(d) The net loss of revenue. 

Sec. 136.229 Compensation allowable. 

The amount of compensation allowable is the total net revenue actually lost. 

Profits and Earning Capacity 

Sec. 136.231 Authorized claimants. 

(a) A claim for loss of profits or impairment of earning capacity due to the injury to, 

destruction of, or loss of real or personal property or natural resources may be 

presented by a claimant sustaining the loss or impairment. The claimant need not be 

the owner of the damaged property or resources to recover for lost profits or 

income. 

(b) A claim for loss of profits or impairment of earning capacity that also involves a 

claim for injury to, or economic losses resulting from destruction of, real or 

personal property must be claimed under Sec. 136.213. 

(c) A claim for loss of profits or impairment of earning capacity that also involves a 

claim for loss of subsistence use of natural resources must be claimed under Sec. 

136.219. 

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April 10, 2001 
Sec. 136.233 Proof. 

In addition to the requirements of subparts A and B of this part, a claimant must establish 

the following: 

(a) That real or personal property or natural resources have been injured, destroyed, or 

lost. 

(b) That the claimant's income was reduced as a consequence of injury to, destruction 

of, or loss of the property or natural resources, and the amount of that reduction. 

(c) The amount of the claimant's profits or earnings in comparable periods and during 

the period when the claimed loss or impairment was suffered, as established by 

income tax returns, financial statements, and similar documents. In addition, 

comparative figures for profits or earnings for the same or similar activities outside 

of the area affected by the incident also must be established. 

(d) Whether alternative employment or business was available and undertaken and, if 

so, the amount of income received. All income that a claimant received as a result 

of the incident must be clearly indicated and any saved overhead and other normal 

expenses not incurred as a result of the incident must be established. 

Sec. 136.235 Compensation allowable. 

The amount of compensation allowable is limited to the actual net reduction or loss of 

earnings or profits suffered. Calculations for net reductions or losses must clearly reflect 

adjustments fora) All income resulting from the incident; 

(b) All income from alternative employment or business undertaken; 

(c) Potential income from alternative employment or business not undertaken, but 

reasonably available; 

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and 

(e) State, local, and Federal taxes. 

Government Public Services 

Sec. 136.237 Authorized claimants. 

A claim for net costs of providing increased or additional public services during or after 

removal activities, including protection from fire, safety, or health hazards, caused by a 

discharge of oil may be presented only by a State or a political subdivision of a State 

incurring the costs. 

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April 10, 2001 
Sec. 136.239 Proof. 

In addition to the requirements of subparts A and B of this part, a claimant must 

establish--

(a) The nature of the specific public services provided and the need for those services; 

(b) That the services occurred during or after removal activities; 

(c) That the services were provided as a result of a discharge of oil and would not 

otherwise have been provided; and 

(d) The net cost for the services and the methods used to compute those costs. 

Sec. 136.241 Compensation allowable. 

The amount of compensation allowable is the net cost of the increased or additional 

service provided by the State or political subdivision. 

Subpart D--Designation of Source and Advertisement 

General 

Sec. 136.301 Purpose. 

This subpart prescribes the requirements concerning designation of the source or sources 

of the discharge or threat of discharge and advertisement of these designations, including

the procedures by which claims may be presented to the responsible party or guarantor. 

Sec. 136.303 Definitions. 

As used in this subpart-

 but not limited to paid 

advertisements, that are reasonably calculated to advise the public how to present a claim. 

Designated source means a source designated under Sec. 136.305. 

Designation of Source 

Sec. 136.305 Notice of designation. 

(a) When information of an incident is received, the source or sources of the discharge 

or threat are designated, where possible and appropriate. If the designated source is 

a vessel or facility, the responsible party and the guarantor, if known, are notified 

by telephone, telefax, or other rapid means of that designation. The designation will 

be confirmed by a written Notice of Designation. 

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April 10, 2001 
(b) A Notice of Designation normally contains, to the extent known-

(1) The name of the vessel or facility designated as the source; 

(2) The location, date, and time of the incident; 

(3) The type of quantity of oil involved; 

(4) The date of the designation; 

(5) The procedures for accepting or denying the designation; and 

(6) The name, address, telephone number, and, if available, telefax number of the 

responsible Federal official to whom further communication regarding the 

incident, advertisement of the incident, or denial of designation should be 

directed. 

Sec. 136.307 Denial of designation. 

(a) Within five days after receiving a Notice of Designation under Sec. 136.305, the 

responsible party or guarantor may deny the designation. 

(b) A denial of designation must— 

(1) Be in writing; 

(2) Identify the Notice of Designation; 

(3) Give the reasons for the denial and provide a copy of all supporting 

documents; and 

(4) Be submitted to the official named in the Notice of Designation. 

(c) A denial is deemed received on the date the denial is actually received by the 

official named in the Notice of Designation. 

Advertisement 

Sec. 136.309 Advertisement determinations. 

(a) The Director, NPFC, determines for each incident the type, geographic scope, 

frequency, and duration of advertisement required. 

(b) In making the determination specified in paragraph (a) of this section, the Director, 

NPFC, may consider-

(1) The nature and extent of economic losses that have occurred or are likely to 

occur; 

(2) The potential claimants who are likely to incur economic losses; 

(3) The geographical area that is or will likely be affected; 

(4) The most effective method of reasonably notifying potential claimants of the 

designation and procedures of submitting claims; and 

(5) Relevant information or recommendations, if any, submitted by, or on behalf 

of, the responsible party or guarantor of the designated source. 

(c) The Director, NPFC, provides the specific requirements for advertisement for each 

incident to the responsible party or guarantor of the designated source. 

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April 10, 2001 
(d) If a responsible party or guarantor has not denied designation in accordance with 

Sec. 136.307, the party or guarantor shall advertise, in accordance with the 

requirements of this subpart, the designation and the procedures by which claims 

may be presented. The advertisement must begin not later than 15 days after the 

date of the designation made under Sec. 136.305. 

(e) If there is no designation under Sec. 136.305, if the source of the discharge or threat 

is a public vessel, or if the responsible party and guarantor of the source designated 

have denied the designation or failed to meet the requirements for advertisement in 

this section, the Director, NPFC, may advertise procedures for presenting claims. 

Sec. 136.311 Types of advertisement. 

Advertisement required by the Director, NPFC, will normally include one or more of the 

following: 

(a) Paid advertisements in a newspaper or newspapers having general circulation in the 

area designated by the Director, NPFC. 

(b) Notice posted in marinas, marine supply stores, bait and tackle shops, and other 

appropriate business establishments or public facilities in the area designated by the 

Director, NPFC. 

(c) News releases to newspapers, radio stations, television stations, and cable services 

having general circulation in the area designated by the Director, NPFC. 

(d) Other means approved by the Director, NPFC, under the circumstances of each 

case. 

Sec. 136.313 Content of advertisement. 

Each advertisement required by this subpart may be required to contain the following 

information or to indicate where this information may be contained: 

(a) Location, date, and time of the incident. 

(b) Geographical area affected, as determined by the FOSC or Director, NPFC. 

(c) Type and quantity of oil involved. 

(d) Name or other description of the source designated by the FOSC or Director, 

NPFC. 

(e) Name of the responsible party and guarantor of the designated source. 

(f) Name, address, telephone number, office hours, and work days of the person or 

persons to whom claims are to be presented and from whom claim information can 

be obtained. 

(g) The procedures by which a claim may be presented. 

(h) Other information required by the Director, NPFC, under the circumstances of each 

case. 

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