[Federal Register Volume 61, Number 4 (Friday, January 5, 1996)]
[Rules and Regulations]
[Pages 440-510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31577]




[[Page 439]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 990



Natural Resource Damage Assessments; Final Rule

Federal Register / Vol. 61, No. 4 / Friday, January 5, 1996 / Rules 
and Regulations 

[[Page 440]]


DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 990

[950718181-5276-02]
RIN 0648-AE13


Natural Resource Damage Assessments

AGENCY: National Oceanic and Atmospheric Administration (NOAA), 
Commerce.

ACTION: Final rule.

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SUMMARY: Section 1006(e)(1) of the Oil Pollution Act of 1990 requires 
the President, acting through the Under Secretary of Commerce for 
Oceans and Atmosphere, to promulgate regulations for the assessment of 
natural resource damages resulting from a discharge or substantial 
threat of a discharge of oil. This final rule is for the use of 
authorized federal, state, Indian tribe, and foreign officials, 
referred to as ``trustees.'' Natural resource damage assessments are 
not identical to response or remedial actions addressed by the larger 
statutory scheme of the Oil Pollution Act of 1990. Assessments are not 
intended to replace response actions, which have as their primary 
purpose the protection of human health, but to supplement them, by 
providing a process for restoring natural resources and services 
injured as a result of an incident involving oil.

EFFECTIVE DATE: The effective date of the final rule is February 5, 
1996.

ADDRESSES: Linda Burlington or Eli Reinharz, c/o NOAA/GCNR, 1315 East-
West Highway, SSMC #3, Room 15132, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Linda Burlington (telephone (301) 713-
1217) or Eli Reinharz (telephone (301) 713-3038, ext. 193), Office of 
General Counsel Natural Resources, FAX (301) 713-1229.

SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA), 33 
U.S.C. 2701 et seq., provides for the prevention of, liability for, 
removal of, and compensation for the discharge, or substantial threat 
of discharge, of oil (hereinafter referred to as ``incident'') into or 
upon the navigable waters of the United States, adjoining shorelines, 
or the Exclusive Economic Zone. Section 1006(b) of OPA (33 U.S.C. 
2706(b)) provides for the designation of federal, state, Indian tribe, 
and foreign natural resource trustees to determine if injury to, 
destruction of, loss of, or loss of use of natural resources and 
services has resulted from an incident, assess natural resource damages 
for those injuries, present a claim for damages (including the 
reasonable costs of assessing damages), recover damages, and develop 
and implement a plan for the restoration, rehabilitation, replacement, 
or acquisition of the equivalent of the injured natural resources and 
services under their trusteeship. Section 1006(e)(1) of OPA (33 U.S.C. 
2706(e)(1)) requires the President, acting through the Under Secretary 
of Commerce for Oceans and Atmosphere, to promulgate regulations for 
the assessment of natural resource damages resulting from incidents.

Background

    Prior to issuing this final rule, NOAA published eleven Federal 
Register Notices requesting information and comments on approaches to 
developing natural resource damage assessment procedures. 55 FR 53478 
(December 28, 1990), 56 FR 8307 (February 28, 1991), 57 FR 8964 (March 
13, 1992), 57 FR 14524 (April 21, 1992), 57 FR 23067 (June 1, 1992), 57 
FR 44347 (September 25, 1992), 57 FR 56292 (November 27, 1992), 58 FR 
4601 (January 15, 1993), 59 FR 1061 (January 7, 1994), 60 FR 39804 
(August 3, 1995), and 60 FR 43574 (August 22, 1995). NOAA conducted a 
public meeting on March 20, 1991, and held four regional workshops 
during 1991 in Rockville, Maryland; Houston, Texas; San Francisco, 
California; and Chicago, Illinois, to learn of regional concerns in 
assessing injury and restoration for coastal and inland waters. One 
workshop held in Alexandria, Virginia, in November 1991, provided a 
forum for early discussions of various economic issues likely to be 
raised during the rulemaking process. In addition, on August 12, 1992, 
NOAA held a public hearing on the issue of whether constructed market 
methodologies, including contingent valuation, (CV), can be used to 
calculate reliably passive use values for natural resources, and if so, 
under what circumstances and under what guidance. On January 15, 1993, 
NOAA published in full the report of a panel commissioned to evaluate 
the reliability of CV. 58 FR 4601.
    NOAA published the proposed OPA rule on January 7, 1994 (59 FR 
1061). The proposed rule contained a statement requesting specific 
consideration of certain issues. Immediately after publishing the 
proposed rule, NOAA held six regional meetings in January and February 
of 1994. A seventh workshop was held in March 1994 in Washington, D.C. 
NOAA then published an informational notice to summarize the concerns 
raised in these workshops on June 22, 1994 (59 FR 32148).
    Based upon comments received in response to the proposed rule and 
regional meetings, NOAA reproposed the rule on August 3, 1995 (60 FR 
39804). Immediately after publishing the proposed rule, NOAA held two 
conferences in August and September of 1995 to discuss the 1995 
proposed rule.
    This final rule draws from the public issue-discussion process and 
comments received to provide a natural resource damage assessment 
process intended to meet OPA's goal of expeditious, cost-effective, and 
feasible restoration of natural resources and services injured by 
incidents involving oil.
    This preamble is organized as follows: the Introduction gives an 
overview of the rule and is followed by a discussion of each of the 
subparts of the rule. Subpart A provides a general introduction, 
subpart B describes trustee authorities, subpart C gives definitions 
pertinent to this rule, subpart D describes the Preassessment Phase, 
subpart E describes the Restoration Planning Phase, and subpart F 
describes the Restoration Implementation Phase. Finally, the preamble 
provides a general summary of and responses to the comments on the 
proposed rule.

INTRODUCTION

I. Goal of OPA: Focus on Restoration

    The goal of the Oil Pollution Act of 1990 (OPA) is to make the 
environment and public whole for injuries to natural resources and 
natural resource services resulting from an incident involving a 
discharge or substantial threat of a discharge of oil (incident). This 
goal is achieved through returning injured natural resources and 
services to baseline and compensating for interim losses of such 
natural resources and services through the restoration, rehabilitation, 
replacement or acquisition of equivalent natural resources and/or 
services. The purpose of this rule is to provide a framework for 
conducting sound natural resource damage assessments that achieve 
restoration under OPA.
    Under the rule, restoration plans developed with input from the 
public and responsible parties form the basis of a claim for natural 
resource damages. Final restoration plans are presented to responsible 
parties for funding. In addition, the rule allows responsible parties 
to implement trustee-approved and monitored restoration plans. Because 
assessments will be conducted in the open, and responsible parties and 
the public will have opportunities to be 

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involved in the planning process, it is expected that restoration will 
be achieved more quickly, transaction costs will decrease, and 
litigation will be avoided.
    NOAA believes that an assessment that focuses on evaluating 
injuries relevant to feasible restoration alternatives and soliciting 
public input in restoration planning will accomplish three major goals: 
validating trustee determinations regarding those actions that will 
make the environment and public whole; ensuring that appropriate 
assessment procedures for determining restoration actions for a given 
incident are followed; and reducing transaction costs. The rule 
provides for the use of a range of appropriate and cost-effective 
procedures for an assessment. Procedures to be used within the rule 
must meet certain standards: they must be capable of providing 
information of use in determining the type and scale of restoration 
appropriate for a particular injury; the additional cost of a more 
complex procedure must be reasonably related to the expected increase 
in the quality and/or quantity of information provided by the more 
complex procedure; and they must be reliable and valid for the 
particular incident. Trustees must select the most cost-effective of 
two or more equally appropriate assessment procedures.
    Restoration planning by federal trustee agencies is subject to the 
requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321 et seq.), except when a categorical exclusion or other exception 
to NEPA applies. The process identified in the rule mirrors the 
decisionmaking process embodied in NEPA, without requiring 
significantly different steps or products than those envisioned in OPA. 
Recognizing that NEPA compliance requirements will vary among federal 
agencies, and that state trustees may not be subject to NEPA, the rule 
describes the general processes and products required under NEPA, and 
provides guidance for integrating NEPA compliance into the assessment.
    Finally, NOAA has developed guidance documents on various aspects 
of the assessment. These guidance documents are available in draft on: 
preassessment, injury assessment, restoration, compensation formulas, 
and NEPA compliance (citations for the documents are included in the 
Bibliography at the end of this preamble). These draft documents are 
available from the address at the front of this preamble. The guidance 
documents are being prepared in conjunction with this rulemaking to 
provide additional technical information to those performing 
assessments under OPA and other interested members of the public. These 
documents will not constitute regulatory guidance, nor will they have 
to be followed for an assessment to be conducted in accordance with 
this rule. The documents, in their final form, will be made available 
through a public information distribution service, and will be 
announced in a future Federal Register notice.

II. Overview of the Restoration Planning Process Under the Rule

    The natural resource damage assessment process in the rule includes 
three phases as outlined below: (1) Preassessment; (2) restoration 
planning; and (3) restoration implementation.

Preassessment Phase

    When notified by response agencies of an incident involving oil, 
trustees must first determine threshold criteria that provide their 
authority to begin the natural resource damage assessment, such as 
applicability of OPA and risks to natural resources under their 
trusteeship. Based on early available information, trustees make a 
preliminary determination whether natural resources or services have 
been injured. Through coordination with response agencies, trustees 
next determine whether response actions will eliminate the threat of 
ongoing injury. If injuries are expected to continue, and feasible 
restoration alternatives exist to address such injuries, trustees may 
proceed with the assessment.

Restoration Planning Phase

    The purpose of the Restoration Planning Phase is to evaluate 
potential injuries to natural resources and services, and use that 
information to determine the need for and scale of restoration actions. 
The Restoration Planning Phase provides the link between injury and 
restoration. The Restoration Planning Phase has two basic components: 
injury assessment and restoration selection.

Injury Assessment

    The goal of injury assessment is to determine the nature and extent 
of injuries to natural resources and services, thus providing a 
technical basis for evaluating the need for, type of, and scale of 
restoration actions. Under the rule, injury is defined as an observable 
or measurable adverse change in a natural resource or impairment of a 
natural resource service. Trustees must determine that there is: (1) 
Exposure, a pathway, and an adverse change to a natural resource or 
service as a result of an actual discharge; or (2) an injury to a 
natural resource or impairment of a natural resource service as a 
result of response actions or a substantial threat of a discharge. 
Trustees must also quantify the degree, and spatial and temporal extent 
of injuries. Injuries are quantified by comparing the condition of the 
injured natural resources or services to baseline, where necessary.

Restoration Selection

    Once injury assessment is complete, trustees must develop a plan 
for restoring the injured natural resources and services. Under the 
rule, trustees must identify a reasonable range of restoration 
alternatives, evaluate and select the preferred alternative(s), and 
develop a Draft and Final Restoration Plan, that considers public 
comments. Acceptable restoration actions include any of the actions 
authorized under OPA (restoration, rehabilitation, replacement, or 
acquisition of the equivalent), or some combination of those actions.
    Restoration actions under the rule are either primary or 
compensatory. Each restoration alternative considered will contain 
primary and/or compensatory restoration actions that address one or 
more specific injuries associated with the incident. Primary 
restoration refers to actions taken to return the injured natural 
resources and services to baseline on an accelerated time frame. 
Natural recovery also must be considered under primary restoration, in 
which no human intervention is taken to directly restore injured 
natural resources and/or services to baseline. Alternative primary 
restoration actions can range from natural recovery, to actions that 
prevent interference with natural recovery, to more intensive actions 
expected to return injured natural resources and services to baseline 
faster or with greater certainty than natural recovery.
    Compensatory restoration includes actions to compensate for interim 
losses of natural resources and/or services pending recovery. The type 
and scale of compensatory restoration may depend on the nature of the 
primary restoration action, and the level and rate of recovery of the 
injured natural resources and/or services given the primary restoration 
action.
    When identifying the compensatory restoration components of the 
restoration alternatives, trustees must first consider compensatory 
restoration actions that provide services of the same type and quality, 
and of comparable value as those lost. If compensatory 

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actions of the same type and quality and comparable value cannot 
provide a reasonable range of alternatives, trustees may consider other 
compensatory restoration actions among the alternatives, so long as the 
actions, in the judgment of the trustees, will provide services of at 
least comparable type and quality as those lost.
    To ensure that a restoration action appropriately addresses the 
injuries resulting from an incident, trustees must scale the action. 
The approaches that may be used to determine the appropriate scale of a 
restoration action include the resource-to-resource or service-to-
service approach, and the valuation approach. The possible use of 
contingent valuation (CV) and other stated-preference methods of 
valuation to determine what scale of compensatory restoration provides 
an equivalent value to the lost services avoids many problems 
identified by commenters regarding the use of CV to calculate a dollar 
value for the damages as included in the 1994 proposal.
    Under the resource-to-resource or service-to-service approach to 
scaling, trustees determine the appropriate quantity of replacement 
natural resources and/or services to compensate for the amount of 
injured natural resources or services. Trustees must consider using the 
resource-to-resource or service-to-service approach for actions that 
provide natural resources and/or services of the same type, quality, 
and value as those lost.
    In situations where trustees must consider actions that provide 
natural resources and/or services that are of a different type, 
quality, or value than the injured natural resources and/or services, 
or where use of resource-to-resource or service-to-service scaling is 
inappropriate, trustees may use the valuation approach to scaling. To 
evaluate actions that provide services of a different type or quality, 
trustees need a common measure to compare services lost and services 
provided, such as the value per unit of service. Trustees first 
calculate the value of the lost services and then determine the value 
gained from different scales of the restoration action. Trustees then 
select the scale of the restoration action under consideration that 
would provide value equal to the value lost. Responsible parties are 
liable for the cost of implementing the restoration action that would 
generate the equivalent value, not for the calculated interim loss in 
value.

Selection of a Preferred Alternative

    The identified restoration alternatives are evaluated based on a 
number of factors that include: (i) cost to carry out the alternative; 
(ii) extent to which each alternative is expected to meet the trustees' 
goals and objectives in returning the injured natural resources and 
services to baseline and/or compensate for interim losses; (iii) 
likelihood of success of each alternative; (iv) 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; 
(v) extent to which each alternative benefits more than one natural 
resource and/or service; and (vi) effect of each alternative on public 
health and safety. Trustees must select the most cost-effective of two 
or more equally preferable alternatives.
    A Draft Restoration Plan will be made available for review and 
comment by the public, including appropriate members of the scientific 
community where possible. Public review and comment of the plan will 
depend on the nature of the incident, and any applicable federal 
trustee NEPA requirements. The Draft Restoration Plan will describe the 
trustees' preassessment activities, as well as injury assessment 
activities and results, evaluate restoration alternatives, and identify 
the preferred restoration alternative(s). After reviewing public 
comments on the Draft Restoration Plan, trustees must develop a Final 
Restoration Plan. The Final Restoration Plan will become the basis of 
claims for damages.

Restoration Implementation Phase

    The Final Restoration Plan is presented to responsible parties to 
implement or to fund the trustees' costs of implementing the plan, thus 
providing the opportunity for settlement of damages claims without 
litigation. Should responsible parties decline to settle a claim, OPA 
authorizes trustees to bring a civil action for damages in federal 
court or seek an appropriation from the Oil Spill Liability Trust Fund 
for such damages.

DISCUSSION

Subpart A--Introduction

I. 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 returning the injured natural resources and 
services to baseline and through compensation for interim losses of 
those natural resources and services from the date of the incident 
until recovery.
    The purpose of this rule is to promote expeditious and cost-
effective restoration of natural resources and services injured as a 
result of an incident. To fulfill this purpose, the rule 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. The rule 
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 selecting appropriate restoration actions from a 
reasonable range of alternatives.

II. Scope

    This rule may be used by designated federal, state, tribal, and 
foreign natural resource trustees to determine appropriate actions to 
restore natural resources and/or services injured by a discharge, or 
substantial threat of a discharge, of oil into or upon navigable waters 
or adjoining shorelines or the Exclusive Economic Zone of the United 
States.
    The Secretaries of the Interior, Commerce, Agriculture, Defense, 
and Energy are the primary federal natural resources trustees, although 
in some circumstances, the heads of other federal agencies may act as 
trustees of natural resources (see 40 CFR 300.600). The roles and 
responsibilities of the various federal trustees regarding an 
assessment vary according to their natural resource management 
responsibilities and the susceptibility of various natural resources 
and/or services to injury. Designation of federal trustees and broad 
guidelines describing trustee functions are addressed in subpart G of 
the National Oil and Hazardous Substances Pollution Contingency Plan 
(NCP), 40 CFR part 300.600. For state trustees, most governors have 
delegated trustee responsibilities to specific state or local agencies, 
as provided under OPA.
    The process described in the rule is not intended to affect the 
recoverability of natural resource damages when recoveries are sought 
other than in accordance with this rule.

III. Overview

    The rule 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 the rule. 
The Restoration Planning 

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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 the rule. The Restoration 
Implementation Phase, during which trustees ensure implementation of 
restoration, is described in subpart F of the rule.

IV. Rebuttable Presumption

    Assessments performed by federal, state, or tribal trustees in 
accordance with this rule receive the evidentiary status of a 
rebuttable presumption provided by section 1006(e)(2) of OPA (33 U.S.C. 
2706(e)(2)). NOAA interprets this presumption to mean that the 
responsible parties have the burdens of presenting alternative evidence 
on damages and of persuading the fact finder that the damages presented 
by the trustees are not an appropriate measure of damages. This 
presumption applies to all assessment procedures conducted in 
accordance with this rule. However, where trustees use procedures that 
are determined not to be in accordance with this rule, trustees will 
not obtain a rebuttable presumption for that portion of the assessment. 
Assessments performed by foreign trustees in accordance with this rule 
are not entitled to a rebuttable presumption, as provided in section 
1006(c)(1) of OPA (33 U.S.C. 2706(e)(1)).

V. Coordination

A. General
    Coordination among all parties affected by an incident is crucial 
to an efficient and effective assessment. Coordination, in pre-incident 
planning and throughout the assessment, can reduce time until 
restoration is implemented and ensure that assessment costs are 
reasonable. More detailed discussion of some aspects of coordination 
appears in Appendix A at the end of this preamble.
B. Coordination Among Trustees
    This rule encourages trustees with shared or overlapping 
trusteeship to coordinate their assessment activities, including 
coordination in pre-incident planning. Coordination among trustees will 
avoid duplicative claims for damages, address shared trust natural 
resource concerns, and result in more effective funding of assessment 
work. When conducting joint assessments, trustees must designate a Lead 
Administrative Trustee (LAT). The LAT should be selected by mutual 
agreement of the trustees. The LAT's duties and responsibilities are 
mainly administrative, unless all trustees agree otherwise. Depending 
upon the circumstances of the incident, there may be co-LATs or 
sequential LATs for different stages of the process. This rule 
encourages trustees to consider using agreements, such as memoranda of 
understanding (MOUs), to structure both pre-incident and incident-
specific activities. Trustees may act independently when there is a 
reasonable basis for dividing assessment responsibilities, so long as 
there is no double recovery of damages. However, independent 
assessments may not achieve prompt restoration of injured natural 
resources and services and may not be in the best interests of the 
parties involved.
C. Coordination With Response Agencies
    Trustees must coordinate their activities conducted concurrently 
with response operations with response agencies consistent with the NCP 
and any pre-incident plans or MOUs. Coordination among trustees and 
response agencies can result in reducing or eliminating natural 
resource and/or service injuries residual to the cleanup. ``Response'' 
refers to those actions taken under the NCP to protect public health 
and welfare or the environment when there is a discharge or a 
substantial threat of a discharge of oil, including actions to contain 
or remove discharged oil from water and shorelines.
D. Coordination With Responsible Parties
    Active and early involvement of responsible parties may eliminate 
some of the problems trustees have encountered immediately following an 
incident, such as lack of funding, personnel and equipment. In 
addition, a joint trustee-responsible party assessment may be more 
cost-effective and avoid duplicate studies. Thus, the rule requires the 
trustees to invite the responsible parties to participate in the 
assessment.
    The rule leaves determination of the timing and extent of 
responsible party participation to the judgment of the trustees on an 
incident-specific basis. While active responsible party involvement is 
the preferred means of conducting assessments, it may not be 
appropriate for trustees to delay assessment activities while 
negotiating the terms of responsible party involvement.
    Trustees should extend the invitation to participate to known 
responsible parties as soon as practicable, but not later than the 
delivery of the Notice of Intent to Conduct Restoration Planning, 
described in Sec. 990.44 of the rule. The invitation to participate 
must be in writing, and a written response by the responsible parties 
is required to confirm the desire to participate. 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. For example, 
stipulated facts might concern the types of natural resources and 
services injured, extent of injury or most appropriate assessment 
procedures to determine injury and/or restoration needs, and how the 
results of the procedures used will be interpreted.
    The scope of the participation by responsible parties must be 
determined by the trustees The rule provides a number of factors that 
may assist trustees in making this determination. These factors 
include, for identified responsible parties, the willingness of 
responsible parties to participate in the assessment and provide 
funding for assessment activities, the 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, 
the degree of cooperation in response activities, and the actions of 
the responsible parties in prior assessments. However, the rule 
provides for a minimum level of responsible party participation that 
consists of notice of trustee determinations required by the rule, 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 responsible parties; however, 
final authority to make determinations regarding injury and restoration 
rests solely with the trustees. Submissions by responsible parties will 
be included in the administrative record. Trustees may end 
participation by responsible parties who, during the conduct of the 
assessment, interfere with the trustees' capability to fulfill their 
responsibilities under OPA and this rule.
    The rule also provides that participating responsible parties may 
formally request use of assessment procedures other than those that 
have been selected by trustees as the most appropriate for the incident 
and injury of concern. Responsible parties must identify specific 
alternate procedures, and demonstrate that they meet the 

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requirements for acceptable assessment procedures provided in 
Sec. 990.27 of the rule. In addition, because trustees will already 
have made a determination that a different procedure is appropriate, 
responsible parties must agree not to challenge the results of the 
requested alternate procedure and agree to fund the alternate 
procedure. Trustees may deny the request for alternate procedures on 
the grounds that they are not technically feasible or scientifically 
sound, are inconsistent with Sec. 990.27 of the rule, or could not be 
completed in a reasonable time frame. Trustees must document the 
request and their response in the administrative record.
    Trustees must document in the administrative record and Restoration 
Plan the invitation for participation by the responsible parties, 
briefly describe the nature and extent of the responsible parties' 
participation, and briefly describe, if applicable, why the responsible 
parties' participation was terminated.
E. Coordination With the Public
    A major goal of OPA is to involve the public in the restoration 
planning process. At a minimum, the rule requires that trustees provide 
opportunities for public involvement after the trustees decide to 
develop a restoration plan. The rule further encourages that trustees 
involve the public in the assessment at any time earlier, if such 
involvement is expected to enhance trustees' decisionmaking or 
facilitate the restoration process.
    Depending on the nature of the incident and expected assessment 
actions, public comment may be solicited at various stages to ensure 
the best information base is available to the trustees. In highly 
complex incidents, or those incidents that are expected to involve 
multi-year efforts, trustees may have an opportunity to set up one or a 
series of public meetings to ensure opportunity for public input. 
Attendance should be encouraged by all parties that are involved, 
participating, or interested in the incident.
    To the fullest extent practicable, trustees should involve the 
public to:
    (i) Encourage a broad understanding of restoration and build trust, 
thus allowing for quicker recognition and support of the restoration 
process overall;
    (ii) Provide opportunities for joint fact-finding, improving the 
collection of quality data; and
    (iii) Incorporate public concern, providing for more effective 
restoration planning.

VI. Considerations for Facilitating Restoration

A. General
    Pre-incident planning and regional restoration plan development are 
tools trustees should consider as means to enhance successful 
restoration planning and implementation. These actions are not required 
actions under the rule. More extensive discussion on these topics is 
included in Appendix A at the end of this preamble.
B. Pre-Incident Planning
    NOAA believes that commitment of time, funding, and personnel to 
planning prior to an incident will help ensure that the assessment 
results in technically sound and cost-effective restoration. Pre-
incident planning activities may identify natural resource damage 
assessment teams, establish trustee notification systems, identify 
support services, identify natural resources and/or services at risk, 
identify and develop working relationships with 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, cleanup 
agencies, representatives of local natural resource management 
agencies, and representatives of local environmental groups should be 
included in pre-incident planning to the fullest extent practicable.
C. Regional Restoration Planning
    OPA intends that restoration actions make the environment and 
public whole for natural resource and/or service injuries resulting 
from an incident. Where practicable, development of restoration plans 
on an incident-by-incident basis is the preferred alternative to 
accomplish this goal. However, for many incidents, including smaller 
incidents, such incident-specific plan development may be impractical 
and costly. Yet, the impact of small incidents may still represent a 
significant concern for trustees, particularly where small incidents 
may have cumulative impacts. Thus, to achieve OPA's mandate to restore 
injured natural resources and services regardless of the type and scale 
of those injuries, trustees are encouraged to identify existing 
Regional Restoration Plans or other existing restoration projects that 
may be applicable in the event of an incident. Regional restoration 
planning may consist of compiling databases that identify existing, 
planned, or proposed restoration projects that may provide appropriate 
restoration alternatives for consideration in the context of specific 
incidents. Plans or projects developed on a regional basis (e.g., 
ecosystem, landscape, watershed, or any other basis) appropriate so 
long as natural resources and/or services comparable to those expected 
to be injured by an incident are addressed in the plans. In no event 
may the use of a regional restoration plan or other existing proposed 
restoration project violate OPA's limitation that natural resource 
damages must be used solely to restore, rehabilitate, replace, or 
acquire the equivalent of natural resources and services injured by an 
incident.

Subpart B--Authorities

I. Relationship to the CERCLA Natural Resource Damage Assessment 
Regulations

    The Department of the Interior (DOI) has developed regulations for 
assessing natural resource damages resulting from hazardous substance 
releases under the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (CERCLA) (42 U.S.C. 9601 et seq.), and the 
Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. 1321 
et seq.). The CERCLA regulations are codified at 43 CFR part 11. The 
CERCLA regulations originally applied to natural resource damages 
resulting from oil discharges as well as hazardous substance releases. 
This rule supersedes 43 CFR part 11 with regard to incidents covered by 
OPA. Trustees who began assessments under the CERCLA regulations before 
the effective date of this rule may complete those assessments in 
compliance with the CERCLA regulations or they may elect to use this 
rule to obtain the rebuttable presumption.
    If natural resources and/or services are injured by a discharge or 
release of a mixture of oil and hazardous substances, trustees must use 
43 CFR part 11 in order to obtain a rebuttable presumption.

II. Relationship to the NCP

    This rule 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 coordination with damage assessment activities are 
conducted pursuant to the National Oil and Hazardous Substances 
Pollution Contingency Plan (NCP), 40 CFR part 300. 

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III. Prohibition on Double Recovery

    Trustees are subject to a prohibition on double recovery of damages 
in section 1006(d)(3) of OPA (33 U.S.C. 2706(d)(3)). This rule 
encourages trustee coordination as a means to avoid double recovery. In 
general, the losses that trustees may estimate without the risk of 
double recovery are:
    (i) The value of losses to all public uses of natural resources as 
measured by changes in:
    (a) Monetized measures of utility or consumer surplus;
    (b) Fees or other payments collectable by the government or a tribe 
for use of the natural resource by a private party; and
    (c) Any economic rent accruing to a private party because the 
government or tribe does not charge a fee or price for the use of the 
natural resource, provided such economic rent is not recovered under a 
private cause of action; and
    (ii) In instances where the trustee(s) is the majority operator or 
controller of a for-profit or not-for-profit enterprise, and the injury 
to the natural resource results in a reduction of net income to such an 
enterprise, that portion of the lost net income due the trustee(s) from 
this enterprise resulting directly or indirectly from the injury to the 
natural resource.
    Trustee claims for damages under this rule should not include:
    (i) Losses to the government for forgone taxes, because these are 
transfer payments from individuals to the government; or
    (ii) Wages and other income lost by private individuals, except for 
that portion of income that represents uncollected economic rent, where 
these values may be the subject of lawsuits brought by the individuals 
suffering the loss.
    Where restoration actions are scaled using the resource-to-resource 
or service-to-service scaling approach, trustees should ascertain the 
extent to which the restoration actions also compensate for losses 
typically scaled with a valuation approach.

IV. Compliance With NEPA and the CEQ Regulations

    Under this rule, the National Environmental Policy Act (NEPA) 
applies to restoration actions taken by federal trustees, generally 
becoming applicable when the trustees begin the process of developing a 
Draft Restoration Plan under subpart E of this rule, except where a 
categorical exclusion or other exceptions to NEPA apply. Thus, when a 
federal trustee proposes to take restoration actions under this rule, 
it must integrate this rule with NEPA, the Council on Environmental 
Quality (CEQ) regulations on NEPA, and any NEPA regulations promulgated 
by that federal trustee agency. In conducting the NEPA process 
concurrently rather than consecutively with the assessment, federal 
trustees are more likely to make the environment and public whole, 
avoid delays in restoration, and reduce transaction costs.
    Likewise, certain state trustees may also have equivalent NEPA 
requirements, usually referred to as State Environmental Policy Acts 
(SEPA). Thus, where a SEPA applies to state trustees, they must 
consider the extent to which this rule can be integrated with their 
SEPA requirements. Although other trustees may not be bound by NEPA or 
NEPA-equivalent requirements, the trustees may still find the 
procedural planning process as defined under NEPA (or SEPA) useful in 
facilitating restoration.
    The provisions of Sec. 990.23 of this rule strictly relate to NEPA 
and federal trustees. The rule provides a brief description of the 
general procedures and products that may be expected if a restoration 
action is subject to a federal trustee's NEPA compliance requirements. 
Federal trustees should refer to the CEQ regulations and their own 
agency(ies) NEPA regulations for specific guidance regarding NEPA 
requirements.
D. Restoration Plans
1. Purpose
    After selecting a restoration alternative, trustees must prepare a 
Draft Restoration Plan. Development of a Draft Restoration Plan 
provides a vehicle for informing the affected and interested public of 
the results of the trustees' analyses and decisions, and encouraging 
public review. Public review can also supplement expert peer review 
when comments are solicited from various professional communities or 
other knowledgeable persons.
2. Draft Restoration Plan
    A 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 and evaluated under 
this rule;
    (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 and need for interim corrective 
action.
    When developing the Draft Restoration Plan, trustees must clearly 
define plan objectives that specify the desired outcome to be 
accomplished, and the performance criteria by which successful 
restoration will be judged. Trustees should, at a minimum, determine 
what criteria will constitute success such that responsible parties are 
relieved of responsibility for further restoration actions or 
necessitate corrective actions in order to comply with the terms of a 
restoration or settlement agreement.
    Performance criteria include structural, functional, temporal, and/
or other demonstrable goals that the trustees should determine with 
respect to all restoration actions. For example, an agreement to create 
new intertidal marsh habitat as compensation for a marsh injured by oil 
could be described by performance criteria including the number of 
acres to be created, location, elevation of new habitat, species to be 
planted and details for planting such as density, and time frame in 
which identifiable stages of the project should be completed.
    The types of parameters that should be addressed in monitoring 
include duration and frequency of monitoring needed to gauge progress 
and success, the 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.
3. Public Review and Comment
    Public review and comment of both 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 the rule, but must be sufficient to satisfy OPA's requirement for 
public involvement in planning restoration. Thus, trustees should 
consider such factors as the form of the involvement (e.g., a hearing, 
notice, or solicited comments), extent of 

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public involvement (e.g., timing and frequency), and the forum for 
communicating with the public (e.g., local papers, the Federal 
Register, direct contacts to known interested parties).
4. Final Restoration Plan
    After reviewing public comments on the Draft Restoration Plan, 
trustees must develop a Final Restoration Plan. As part of the Final 
Restoration Plan, trustees must consider comments on the Draft 
Restoration Plan. In response to the comments, the trustees may need to 
modify the restoration alternatives being considered, develop and 
evaluate alternatives that have not been given serious consideration by 
the trustees, supplement, improve, or modify the analyses, make factual 
corrections, or explain why the comments do not warrant further trustee 
response, citing the reasons to support the trustee position, and 
possibly indicate the circumstances that would trigger reappraisal or 
further response.
    In the Final Restoration Plan, trustees indicate the restoration 
alternatives that will be implemented and include the information in 
the Draft Restoration Plan. The format of the Final Restoration Plan, 
which essentially follows that of the Draft Restoration Plan, should 
clearly indicate any changes to the Draft Restoration Plan.

V. Compliance With Other Applicable Laws and Regulations

    When taking actions under this rule or while response actions are 
on-going, trustee field activities must comply with any applicable 
worker health and safety considerations specified in the NCP for 
response actions. Where an incident implicates trustees' statutory or 
regulatory requirements in addition to those under OPA and this rule, 
trustees should comply with those requirements. This requirement also 
relates to all legally applicable state, local or tribal procedural 
requirements. Compliance with any applicable laws, regulations, and 
associated permits will help to minimize duplicative and conflicting 
efforts. When following procedural requirements other than those 
specified by OPA and this rule, trustees should identify those 
requirements in the restoration plan. Applicable federal requirements 
that may need to be considered include, but are not limited to: the 
Endangered Species Act; the Coastal Zone Management Act; the Migratory 
Bird Treaty Act; the National Marine Sanctuaries Act; the National 
Historic Preservation Act; the Marine Mammal Protection Act; and the 
Archaeological Resources Protection Act. The use of NEPA as a planning 
process may facilitate compliance with other federal requirements.

VI. Settlement

    Trustees may settle claims for natural resource damages under this 
rule 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. 
Settlements by federal trustees will generally be subject to approval 
by the U.S. Department of Justice. 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, that is 
made available for public review.
    In determining the sufficiency of settlements to meet the public 
interest test under other statutes, reviewing courts have afforded 
broad deference to the judgment of federal agencies recommending such 
settlements. Courts have looked to whether the agencies have considered 
such factors as the benefits of early settlement as opposed to delayed 
recovery through litigation, litigation risk, certainty in the claim, 
and attitude of the parties toward the settlement, among other factors.

VII. Emergency Restoration

    Emergency restoration actions should be considered in situations 
where immediate action is necessary to minimize continuing or prevent 
additional injury. Although emergency restoration actions may be 
considered and implemented by trustees at any time throughout the 
assessment, typically trustees begin evaluating the need for emergency 
restoration during response. 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.
    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, consistent 
with the provisions of Sec. 990.14(c) of the rule. Trustees must also 
provide notice to the public, to the extent practicable, of these 
planned emergency restoration actions. The rule allows trustees to take 
emergency restoration action only if such action is feasible, likely to 
minimize continuing or prevent additional injury, and can be conducted 
at a cost that is not unreasonable. Trustees must also notify the 
public of the justification for, the nature and extent of, and the 
results of emergency restoration actions within a reasonable time 
following the actions. The means by which this notice is provided to 
the public is left to the discretion of the trustees.
    The costs associated with evaluating, planning, and implementing 
emergency restoration are recoverable costs.

VIII. Use of Assessment Procedures

A. Standards for Assessment Procedures
    The rule addresses OPA's goal of efficient, cost-effective, and 
feasible restoration by requiring that assessment procedures be 
tailored to the circumstances of a particular incident and the 
information needed to determine appropriate restoration for that 
incident. The rule requires trustees to determine that the most 
appropriate procedures for an incident be implemented by specifying a 
set of standards for acceptable procedures. These standards are 
applicable to every assessment procedure used under the rule. To be 
considered in accordance with this rule, assessment procedures must 
meet all of the following standards:
    (i) The procedures provide assessment information of use in 
determining the type and scale of restoration appropriate for a 
particular injury;
    (ii) The additional cost of a more complex procedure is reasonably 
related to the expected increase in the quantity and/or quality of 
relevant information provided by the more complex procedure; and
    (iii) The procedures are reliable and valid for the particular 
incident.
B. Assessment Procedures Available
    This rule provides the use of a range of assessment procedures, 
from field or laboratory procedures, to model- or literature-based 
procedures, to a combination thereof. When practicable, assessment 
procedures must be chosen that provide information of use in 
determining the most appropriate alternative for restoring the injury 
resulting from the incident. In addition, 

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when selecting assessment procedures, trustees should consider factors 
such as the time and cost to implement the procedure, nature, and 
spatial and temporal extent of injury and information needed to 
determine and quantify injury, possible restoration actions for 
expected injuries, and information needed to determine appropriate 
restoration. If more than one procedure providing the same type and 
quality of information is available, the most cost-effective procedure 
must be used. A further discussion of procedures is given in Appendix B 
to this preamble.

Subpart C--Definitions

    Relevant definitions in OPA are repeated in the rule as a matter of 
reference. Important terms and concepts that are either not explicitly 
defined or described in OPA or that require further clarification are 
discussed below.

Baseline

    Baseline refers to the condition of natural resources and services 
that would have existed had the incident not occurred. Although injury 
quantification requires comparison to a baseline condition, site-
specific baseline information that accounts for natural variability and 
confounding factors prior to the incident may not be required. In many 
cases, injuries can be quantified in terms of incremental changes, 
rather than in terms of absolute changes relative to a known baseline. 
For example, some procedures do not require site-specific baseline 
information to quantify injury. Rather, the injury is quantified in 
terms of incremental adverse changes resulting from the incident. 
Counts of oiled bird carcasses can be used as a basis for quantifying 
incremental bird mortality resulting from an incident.
    The rule does not distinguish between baseline, historical, 
reference, or control data in terms of value and utility in determining 
the degree and spatial and temporal extent of injuries. To the extent 
that historical data, reference data, or control data can provide valid 
information on which to base a determination of the conditions of the 
natural resource and service in the absence of the incident, these 
forms of data may effectively serve as baseline information.
    Types of information that may be useful in evaluating baseline 
include:
    (i) Information collected on a regular basis and for a period of 
time from and prior to the incident;
    (ii) Information identifying historical patterns or trends on the 
area of the incident and injured natural resources and services;
    (iii) Information from areas unaffected by the incident, that are 
judged sufficiently similar to the area of the incident with respect to 
the parameter being measured; or
    (iv) Information from the area of the incident after a particular 
natural resources or services have been judged to have recovered.

Incident

    An incident is any occurrence or series of occurrences having the 
same origin, involving one or more vessels, facilities, or any 
combination thereof, resulting in the discharge or substantial threat 
of discharge of oil into or upon navigable waters or adjoining 
shorelines or the Exclusive Economic Zone. When a discharge of oil 
occurs, natural resources and/or services may be injured by the actual 
discharge of oil or response activities related to the discharge. When 
there is a substantial threat of a discharge of oil, natural resources 
and/or services may also be injured by the threat or response actions 
related to the threat.

Injury

    OPA authorizes trustees to recover damages for ``injury to, 
destruction of, loss of, or loss of use of'' natural resources (section 
1002(b)(2)(A) of OPA, 33 U.S.C. 2702(b)(2)(A)). Trustees must establish 
that injury has resulted from an incident. Under this rule, injury is 
defined as an observable (i.e., qualitative) or measurable (i.e., 
quantitative) adverse change in a natural resource or impairment of a 
natural resource service.
    There are two general bases for determining injury under this rule. 
Trustees must either determine that:
    (i) The natural resource was exposed, there is a pathway connecting 
the incident with the natural resource, and an adverse change to the 
natural resource and/or service has occurred; or
    (ii) For injuries resulting from response actions or from a 
substantial threat of a discharge of oil, an injury to a natural 
resource or an impairment of use of a natural resource service has 
occurred as a result thereof. Thus, under this rule, injury may result 
from direct or indirect exposure to oil, as well as from response-
related activities, and loss of services is explicitly included in the 
definition of injury.

Oil

    Under section 1001(23) of OPA (33 U.S.C. 2701(23)), the term 
``oil'' includes oil of any kind or in any form, including, but not 
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with 
wastes other than dredged spoil, but does not include petroleum, 
including crude oil or any fraction thereof, which is specifically 
listed or designated as a hazardous substance under subparagraphs (A) 
through (F) of section 101(14) of CERCLA and which is subject to the 
provisions of that Act.
    On July 9, 1975, the U.S. Environmental Protection Agency published 
a Federal Register notice to affirm that non-petroleum oils, such as 
fats and oils from animal and vegetable sources, are subject to oil 
spill reporting, civil penalties, cleanup costs, and oil spill 
prevention plan preparation and implementation under 40 CFR part 112 
and other requirements of section 311 of the Federal Water Pollution 
Control Act (33 U.S.C. 1321 et seq.). The U.S. Environmental Protection 
Agency and U.S. Coast Guard have interpreted and administered section 
311 as applicable to incidents of non-petroleum oils. While the 
mechanism of injuries by non-petroleum oils may be different than that 
of petroleum oils, it is evident, based on current literature, that the 
nature of such injuries is similar (e.g., death) for both types of 
oils. However, the rule provides guidance to allow consideration of 
differences in the physical, chemical, biological, and other 
properties, and in the environmental effects of such oils in 
determining whether injuries result from an incident involving non-
petroleum oils.

Pathway

    Pathway is the medium, mechanism, or route by which the incident 
has resulted in an injury. For discharges of oil, a pathway is the 
sequence of events by which:
    (i) The oil travelled through various components of an ecosystem 
and contacted the natural resource of concern; or
    (ii) Exposure to oil in one part of an ecosystem was transmitted to 
the natural resource of concern, without the oil directly contacting 
the natural resource.

Reasonable Assessment Costs

    Reasonable assessment costs are costs that trustees incurred in 
performing assessments in accordance with this rule. Trustees may 
recover the reasonable assessment costs they incur under this rule even 
if they ultimately determine not to pursue restoration, provided that 
they have determined that actions undertaken were premised on the 
likelihood of injury and need for restoration. Under the rule, 
reasonable assessment costs also include administrative, legal, and 
enforcement costs necessary to carry out this part, monitoring and 
oversight costs, and 

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costs associated with public participation and indirect costs.

Recovery

    Recovery is the return of injured natural resources and services to 
baseline. This concept encompasses the inherent tendency for natural 
resource and service attributes to vary over space and time.
    Projecting recovery involves determining the likelihood and rate at 
which natural resources and/or services will return to baseline. The 
availability and quality of baseline information can influence recovery 
projections. Trustees should use the best available baseline 
information that can be gathered relative to the incident and 
associated injuries.

Restoration

    Restoration is any action (or an alternative), or a combination of 
actions (or alternatives), to restore, rehabilitate, replace, or 
acquire the equivalent of injured natural resources and services.
    This rule includes the concepts of primary and compensatory 
restoration. Primary restoration is any action (whether on-site, off-
site, in-kind, out-of-kind) that returns injured natural resources and 
services to baseline, while compensatory restoration is any action (or 
an alternative) taken to compensate for the interim loss of natural 
resources or services that occur from the date of the incident until 
such natural resources and services have recovered to their baseline 
condition. Trustees must consider, within the primary restoration 
component, natural recovery, in which no human intervention is taken to 
directly restore the injured natural resources and services. Depending 
on the injury of concern, primary restoration actions may include 
actions to actively accelerate recovery or simply to remove conditions 
that would make recovery unlikely. The rule discusses types of primary 
restoration actions that trustees may want to consider.
    For some injuries, the need for and scale of compensatory 
restoration actions may depend on the range of feasible primary 
restoration actions, but trustees should evaluate the need to seek 
compensatory restoration for all demonstrable service losses that occur 
from the onset of the incident. The rule requires that trustees 
preferentially evaluate compensatory restoration actions that provide 
the same type, quality, and value of natural resources or services as 
those lost. Actions that provide services of comparable type, quality, 
and value may be considered if required to generate a range of feasible 
restoration alternatives for evaluation.

Services

    Natural resource services are all functions that a natural resource 
provides for another natural resource(s) or for the public. Natural 
resource services may be classified as follows:
    (i) Ecological services--the physical, chemical, or biological 
functions that one natural resource provides for another. Examples 
include provision of food, protection from predation, and nesting 
habitat, among others; and
    (ii) Public services--the public uses of natural resources or 
functions of natural resources that provide value to the public. 
Examples include fishing, hunting, nature photography, and education, 
among others.

Value

    Value can be measured in units of natural resource services or 
dollar amounts. An individual's value of a good or service is 
represented by the maximum amount of goods, services, or money that the 
individual is willing to give up to obtain a specific good or service, 
or the minimum amount of goods, services, or money that 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 value individuals 
derive from knowing a natural resource will be available for future 
generations. In many contexts, particularly in markets, value is 
represented in terms of units of money. However, value can be measured 
using other measures, including units of a natural resource service.

Subpart D--Preassessment Phase

I. Purpose

    During the Preassessment Phase, trustees make critical 
determinations that shape the remainder of the natural resource damage 
assessment. Trustees determine, based on the circumstances of a given 
incident, whether actions under OPA are justified and make preliminary 
determinations regarding the type of injury assessment and restoration 
actions that may be pursued.
    Other matters considered during the Preassessment Phase include 
funding, data collection, opening the administrative record, and 
inviting responsible parties' participation. Trustees may also consider 
the applicability of the defenses to liability provided in section 1002 
of OPA (33 U.S.C. 2702).

II. Determinations

A. Determination of Jurisdiction
    In order for trustees to proceed with any assessment activities 
under OPA, certain conditions must be met:
    (i) An ``incident'' under OPA must have occurred (i.e., there has 
been a discharge or substantial threat of a discharge of oil);
    (ii) The incident does not fall within exclusionary conditions set 
forth in section 1002(c) of OPA (33 U.S.C. 2702(c)) (e.g., the 
discharge was not permitted by federal permit); and
    (iii) Natural resources or services under the trusteeship of the 
trustee may have been, or are likely to be, injured as a result of the 
incident.
    Frequently, the first two conditions are determined by the response 
agency. The U.S. Coast Guard, U.S. Environmental Protection Agency, or 
a state response agency may have already made the determination that 
OPA applies to the incident before notifying trustees. The third 
condition, however, is necessarily determined by each trustee.
    If all of the conditions listed above are met, trustees may proceed 
with preassessment actions. If any one of the conditions is not met, 
trustees may not take additional action under this rule, except action 
to finalize this determination. Trustees may recover all reasonable 
assessment costs incurred up to this point provided that the first two 
conditions above 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.
    A determination that OPA applies and that a trustee has 
jurisdiction to act under OPA may trigger initiation of the natural 
resource damage assessment process.
B. Determination to Conduct Restoration Planning
1. General
    The determination to be made by trustees in the Preassessment Phase 
is whether it appears that restoration actions should be pursued by the 
trustees. This determination depends on the following conditions:
    (i) Injuries have resulted, or are likely to result, from the 
incident;
    (ii) Response actions have not adequately addressed, or are not 
expected to address, the injuries resulting from the incident; and
    (iii) Feasible primary and/or compensatory restoration actions 
exist to address the potential injuries.
    If all the conditions listed above are met, trustees may proceed 
with 

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preassessment actions. If the trustees decide to proceed with the 
natural resource damage assessment, the trustees must issue a Notice of 
Intent to Conduct Restoration Planning, which is described below. If 
any one of the conditions is not met, trustees may not take additional 
action under this rule, except action to finalize this determination. 
However, trustees may recover all reasonable assessment costs incurred 
up to this point.
2. Identifying Natural Resources and Services at Risk
    Determining whether natural resources and services are, or are 
likely to be, injured requires that trustees consider the:
    (i) Circumstances of the incident. Factors to consider include 
geographic location, condition of the vessel or facility, environmental 
conditions;
    (ii) Characteristics of the discharge or substantial threat of the 
discharge. Factors to consider include the type of oil, which may be 
described by its physical and chemical parameters, source, time and 
duration, and volume of the discharge;
    (iii) Characteristics of the natural resources. Factors to consider 
include the natural resources in the area of the incident, the services 
they provide, habitat and species types, seasonal implications on 
sensitive life stages, and unique ecological components; and
    (iv) Potential for injury. Factors to consider include potential 
for exposure, pathways, causal mechanisms, and availability of 
assessment procedures and data to analyze these factors.
    Trustees must consider injuries resulting from the incident as well 
as from actions taken to respond to the incident.
3. Effectiveness of Response Actions in Eliminating Injury
    Once trustees determine that natural resources and/or services are, 
or may be expected to be, injured as a result of the incident, trustees 
must then determine whether these injuries are likely to be adequately 
addressed through response actions. This analysis should also consider 
whether restoration is required for injuries that occurred at the time 
of the incident, even if injured natural resources and services are 
expected to return to baseline as a result of response actions. If 
response actions will not alleviate residual natural resource and/or 
service injuries, trustees must determine whether there is a need and 
potential for restoration actions to address initial or residual 
injuries, and begin identifying these actions, to facilitate the 
Restoration Planning Phase of the assessment.
4. Early Identification of Potential Restoration Actions
    Potential restoration actions need to be identified as early in the 
assessment as practicable. Such identification is needed to help 
justify the decision to proceed with an assessment that will lead to 
effective restoration actions, and provide the focus for designing 
injury assessment studies that will produce useful information on the 
type and scale of restoration needed. Considerations important to the 
early identification of restoration actions include:
    (i) Potential nature, degree, and spatial and temporal extent of 
injury, with or without restoration;
    (ii) Need and potential for restoration given the types of 
injuries;
    (iii) Potential type and scale of restoration;
    (iv) Extent to which information relevant to determining 
restoration needs is known;
    (v) Time, money, and personnel required and available to obtain 
missing or additional information relevant to restoration; and
    (vi) Requirements imposed by other applicable laws, regulations, 
and permits that would affect restoration.

III. Data Collection During Preassessment Phase

    This rule allows trustees to conduct data collection and analysis 
during the Preassessment Phase if such activities are reasonably 
related to making the determinations required during this phase. The 
purpose of data collection and analysis at this stage is to facilitate 
the determination of whether natural resources and/or services have 
been injured by the incident and may require some form of restoration. 
Ephemeral information (i.e., information that may be lost if not 
collected immediately) may also be collected during the Preassessment 
Phase if the information is necessary for any stage of the restoration 
planning process. In addition, information needed to design and 
implement anticipated assessment procedures may be collected during 
this phase. Data collection and analysis during this phase must be 
coordinated with response actions, such that the collection and 
analyses do not interfere with response actions.

IV. Notice of Intent to Conduct Restoration Planning

    If the trustees determine that there is a reasonable likelihood 
that injury has occurred as a result of the incident and feasible 
restoration actions exist that would address these injuries, the 
trustees may proceed with the assessment. If trustees decide to 
proceed, they must prepare a Notice of Intent to Conduct Restoration 
Planning, which documents the trustees' preassessment activities and 
the basis for the decision to proceed. Depending on information 
available at this early stage of the assessment, the notice may also 
include a description of the trustees' proposed strategy to assess 
injury and determine the type and scale of restoration. The contents of 
the notice may vary, but will typically discuss:
    (i) The facts of the incident;
    (ii) Trustee authority to proceed with the assessment;
    (iii) Natural resources and services that are, or are likely to be, 
injured as a result of the incident;
    (iv) Potential restoration actions relevant to the expected 
injuries; and
    (v) 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.
    The notice must be made publicly available. The means by which the 
notice is made publicly available and whether public comments are 
solicited on the notice is left to the discretion of the trustee.
    Trustees must also provide a copy of the notice to the known 
responsible parties and invite their participation in the conduct of 
restoration planning. As provided under Sec. 990.14(c) of the rule, the 
determination of the timing, nature, and extent of responsible party 
participation will be determined by the trustees on an incident-
specific basis.

V. Administrative Record

    An administrative record facilitates the restoration process by 
providing a central repository for all materials relied upon by 
trustees in making final determinations about restoration actions 
appropriate for an incident. Thus, as administrative record should be 
opened after trustees decide to proceed with restoration planning, and 
concurrently with the development of the Notice of Intent to Conduct 
Restoration Planning.
    The administrative record must contain sufficient information to 
support review of the trustees' decisionmaking process. Depending on 
the nature and extent of the incident, assessment, and restoration 
planning process, the administrative record should include information 
relied upon during the assessment, and required by this rule. Thus, the 
administrative record should ordinarily include the Notice of Intent to 
Conduct Restoration Planning, draft and final restoration 

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plans, and public comments; any relevant data, investigation reports, 
scientific studies, work plans, quality assurance plans, and 
literature; and any agreements not otherwise privileged among the 
participating trustees or with the responsible parties.
    Federal trustees should maintain the administrative record in a 
manner consistent with the Administrative Procedure Act, 5 U.S.C. 551-
59, 701-06. The administrative record should be limited to final 
documents when possible. Where no final document is available at the 
time of selection of restoration actions, draft documents may be 
included in the administrative record if they contain information not 
found in other documents in the record, but which is considered by the 
trustees in selecting a restoration action. Pre-decisional, 
deliberative internal agency memoranda should be treated like draft 
documents (and be excluded from the record) unless relied upon in 
choosing restoration actions.
    Although this rule is silent on the standard of judicial review for 
an assessment conducted in accordance with this rule, NOAA expects that 
the administrative record will serve as the foundation for any judicial 
review of such assessment.

Subpart E--Restoration Planning Phase

I. Purpose

    The purpose of the Restoration Planning Phase is to evaluate and 
quantify information on potential injuries to natural resources and/or 
services (injury assessment), and use that information to determine the 
need for and scale of restoration actions (restoration selection). The 
assessment is essentially a restoration scoping exercise, and the 
various studies and analyses conducted during this phase should be 
viewed from the restoration perspective. Potential assessment 
activities should be examined carefully to ensure that the results will 
be useful and relevant to restoration.
    Development of a conceptual linkage between injury and restoration 
early in the natural resource damage assessment process should 
facilitate and minimize the costs of the assessment by assisting the 
trustees in focusing on the most relevant injuries to be included in 
the assessment, designing studies that are relevant to restoration, and 
planning appropriate restoration actions. The rule provides that 
trustees may use a range of possible assessment procedures for injury 
assessment and restoration planning (see the discussion of Sec. 990.27, 
``Use of Assessment Procedures'').

II. Injury Assessment

A. Purpose
    The goal of injury assessment, which includes determination and 
quantification of injury, is to evaluate the nature, degree, and 
spatial and temporal extent of injuries to natural resources and/or 
services, thus providing a technical basis for evaluating the need for 
and scale of restoration. While the basic steps discussed below are 
applicable to all assessments, selection of approaches for 
demonstrating exposure, pathway, and injury will be incident-specific.
    To determine injury under this rule, trustees must determine if:
    (i) The definition of ``injury'' is met; and
    (ii) (a) 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; and/or
    (b) Any injury to or impairment of a natural resource service has 
occurred as a result of response actions or a substantial threat of a 
discharge of oil. These steps for determining injury and related 
concepts are described in more detail below.
B. Injury Determination
1. Definition of Injury
    Under this rule, trustees must determine if the definition of 
``injury'' has been met. ``Injury'' is defined as an observable or 
measurable adverse change in a natural resource or impairment of a 
service.
    Injury includes adverse changes in the chemical or physical quality 
or viability of a natural resource. The simplest example is death of an 
organism, but indirect, delayed, or sublethal effects may also 
constitute injury. Potential categories of injuries include adverse 
changes in: survival, growth, and reproduction; health, physiology and 
biological condition; behavior; community composition; ecological 
processes and functions; physical and chemical habitat quality or 
structure; and services to the public.
    Although injury is often thought of in terms of adverse changes in 
biota, the definition of injury under this rule is broader. Injuries to 
non-living natural resources (e.g., oiled sand on a recreational beach) 
as well as injuries to natural resource services (e.g., lost use 
associated with a fisheries closure to prevent harvest of tainted fish, 
even though the fish themselves may not be injured) may be considered.
    This list of potential adverse changes is not intended to be 
inclusive of all injuries that trustees may evaluate.
2. Exposure
    The purpose of the exposure portion of an injury assessment is to 
establish whether natural resources came into contact with the oil from 
the incident. Early consideration of exposure should help to focus the 
assessment on those natural resources and/or services that are most 
likely to be injured by an incident.
    Trustees must establish whether the natural resource came into 
contact, either directly or indirectly, with the oil discharged from 
the incident. Under the rule, exposure is broadly defined to include 
not only direct physical exposure to oil, but also indirect exposure 
(e.g., injury to an organism as a result of disruption of its food 
web). Documenting exposure is a prerequisite to determining injury, 
except for response-related injuries and injuries resulting from 
substantial threats of discharges. However, evidence of exposure alone 
may be insufficient to conclude that injury to a natural resource has 
occurred (e.g., the presence of petroleum hydrocarbons in oyster 
tissues may not, in itself, constitute an injury).
    Exposure can be established with either quantitative or qualitative 
procedures. As with other elements of the assessment, selection of 
procedures for establishing oil exposure will depend on the type and 
volume of discharged oil, natural resources at risk, and nature of the 
receiving environment. A combination of assessment procedures may be 
necessary to determine exposure. For example, chemical analysis of oil 
in sediments, alone, may not be adequate to conclude that a benthic 
organism was otherwise exposed to the oil. Likewise, the presence of 
petroleum in fish tissue, alone, may not be adequate to link the 
exposure to the discharge because metabolism of the oil may blur its 
chemical characterization. The combination of the two procedures may, 
however, add to the weight of evidence establishing exposure.
    Trustees must determine the most appropriate procedures to evaluate 
exposure on an incident-specific basis. For some types of incidents, 
visual observation in the field and/or modeling may be adequate to 
document exposure. For other incidents, more involved site-specific 
sampling, including chemical analysis and biological data collection 
and analysis, may be more appropriate.
3. Pathways
    To determine whether an injury resulted from a specific incident, a 
pathway linking the incident to the 

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injury must be established. As with exposure, establishing a pathway is 
a prerequisite to determining injury, except for response-related 
injuries and injuries resulting from a substantial threat of a 
discharge. However, evidence of a pathway, alone, is not sufficient to 
conclude that injury has occurred (e.g., demonstrating that prey 
species are oiled can be used to document that a pathway to a predator 
species exists; however, such data do not, in themselves, establish 
that the predator species is injured).
    Pathway determination may include, but is not limited to an 
evaluation of the sequence of events by which the discharged oil was 
transported from the incident and either:
    (i) Came into direct physical contact with the exposed natural 
resource (e.g., oil transported from an incident by ocean currents, 
wind, and wave action to directly oil shellfish); or
    (ii) Caused an indirect injury to a natural resource and/or service 
(e.g., oil transported from an incident by ocean currents, wind, and 
wave action cause reduced populations of bait fish, which in turn 
results in starvation of a fish-eating bird; or, oil transported from 
an incident by currents, wind, and wave action causes the closure of a 
fishery to prevent potentially tainted fish from being marketed).
    Pathway determination does not require that injured natural 
resources and/or services be directly exposed to oil. In the example 
provided above, fish-eating birds are injured as a result of decreases 
in food availability. However, trustees must always determine the 
existence of a pathway relating the incident to the injured natural 
resource and/or service, if the injury is caused by direct exposure to 
oil.
    Pathways may include, but are not limited to, movement/exposure 
through the water surface, water column, sediments, soil, groundwater, 
air, or biota.
    As with exposure determination, trustees must determine the most 
appropriate procedures to evaluate whether a pathway exists on an 
incident-specific basis.
    Understanding the potential pathways will also help to narrow the 
scope of the assessment, and may be important in deciding which 
assessment procedures to use. For example, if a particular procedure 
does not address injuries that occur through air or terrestrial 
pathways, it would not be appropriate to use that procedure in cases 
where such pathways are predominant.
4. Selection of Injuries to Include in the Assessment
    During the Preassessment Phase, trustees may collect information on 
a wide range of potential injuries. As a result, a long inventory of 
potential injuries resulting from the incident is often developed. 
Because the collection of information on injury must be related to the 
incident and consistent with restoration planning, developing 
scientific knowledge for its own sake is not part of an assessment 
under this rule.
    To compile an inventory of potential injuries to include in the 
assessment, trustees should determine the extent to which the following 
information is known or can be obtained for each injury:
    (i) Natural resources and services of concern;
    (ii) Kinds of procedures available to evaluate and quantify injury, 
and associated time and cost requirements;
    (iii) Evidence indicating exposure;
    (iv) Pathway from the incident to the natural resource and/or 
service of concern;
    (v) Adverse change or impairment that constitutes injury;
    (vi) Evidence indicating injury;
    (vii) Mechanism by which injury occurred;
    (viii) Potential degree, and spatial and temporal extent of the 
injury;
    (ix) Potential natural recovery period; and
    (x) Kinds of primary and/or compensatory restoration actions that 
are feasible.
    Analysis of the factors above should produce a list of injuries 
appropriate to evaluate in the assessment.
C. Injury Quantification
    Injury quantification is the process by which trustees determine 
the degree, and spatial and temporal extent of injuries relative to 
baseline. Thus, injury quantification typically provides information on 
the scale of restoration that may be necessary.
1. Injury Quantification Information Needs
    A variety of procedures for injury quantification may be available 
to trustees. However, because the ultimate purpose of injury 
quantification is ideally to facilitate the design and scale of 
restoration actions, injury quantification should, at a minimum, 
evaluate the following factors:
    (i) Degree of the injury. Degree may be expressed in terms such as 
percent mortality, proportion of a population, species, community, or 
habitat affected, extent of oiling, and availability of substitute 
services.
    (ii) Spatial extent of the injury. Spatial extent may include 
quantification of the total area or volume of injury.
    (iii) Temporal extent of the injury. Duration of injury may be 
expressed as the total length of time that the natural resource and/or 
service is adversely affected, starting at the time of the incident and 
continuing until the natural resources and services return to baseline.
    In order to scale restoration actions, trustees may find it useful 
to develop an estimate of the total quantity of injury that integrates 
the degree, and spatial and temporal extent of injury. For example, 
quantification of the total losses of wetland habitat injured by oil 
could be obtained by estimating the total number of acres of severely 
oiled wetland in which vegetation is totally killed, the natural 
recovery time for severely oiled wetland, the total number of acres of 
moderately oiled wetland in which vegetation is not completely killed 
but the wetland has lower levels of productivity, and the natural 
recovery time for moderately oiled wetland. This information could be 
combined to quantify the total number of ``acre-years'' of wetland 
injury to scale restoration actions.
2. Conceptual Approaches to Quantification
    Trustees may pursue several different conceptual approaches to 
injury quantification. Under these approaches, injury may be quantified 
in terms of:
    (i) The degree, and spatial and temporal extent of injury to a 
natural resource;
    (ii) 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
    (iii) The amount of services lost as a result of the incident.
    Examples of the first approach include quantifying the number of 
fish or seabird mortalities caused by a discharge of oil. Examples of 
the second approach include quantifying reductions in fish populations 
with subsequent estimation of the reduction in the value of a 
recreational fishing day lost, given the injury, or quantifying the 
amount of lost spawning habitat as a result of oiling with subsequent 
estimation of the number of fish that would have been produced by that 
habitat. An example of the third approach includes direct measurement 
of the number of beach user days lost as a result of a beach closure. 
For a 

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particular injury, trustees should use whichever approach is most 
appropriate to the circumstances of the incident.
D. Analysis of Natural Recovery
    Natural recovery is a restoration alternative whereby injured 
natural resources and services are allowed to return to conditions 
prior to the incident without human intervention, following any 
response actions. Under this rule, trustees must estimate the time for 
natural recovery in order to quantify injury. Analysis of recovery 
times may include such factors as:
    (i) The nature, degree, and spatial and temporal extent of injury;
    (ii) The sensitivity and vulnerability of the injured natural 
resource and/or service;
    (iii) The reproductive and recruitment potential;
    (iv) The resistance and resilience (stability) of the affected 
environment;
    (v) The natural variability; and
    (vi) The physical/chemical processes of the affected environment.
    Although it is desirable to account for these factors and produce a 
rigorous quantitative natural recovery estimate for a particular 
natural resource, this may not be practicable for many injuries. As 
with any assessment procedure used under the rule, the most appropriate 
procedure that meets the standards for acceptable procedures in 
Sec. 990.27 of the rule must be used for estimating natural recovery. 
Thus, under this rule, where quantitative procedures are lacking, 
inadequate, or unnecessarily costly to precisely estimate natural 
recovery times, trustees may use appropriate qualitative procedures to 
develop estimates where needed.

III. Restoration Selection

A. Purpose
    Once injury assessment is completed, trustees must develop a plan 
for restoring the injured natural resources and services. Under this 
rule, trustees must identify a reasonable range of restoration 
alternatives, evaluate those alternatives, select an alternative, 
develop a Draft Restoration Plan, and produce a Final Restoration Plan.
    If the information on injury determination and quantification and 
its relevance to restoration justify restoration, trustees may proceed 
with restoration planning. Otherwise, trustees may not take additional 
assessment actions. However, trustees may recover all reasonable 
assessment costs incurred up to this point.
B. Developing a Reasonable Range of Alternatives
1. General
    Trustees must identify a reasonable range of restoration 
alternatives for consideration. Each alternative is comprised of 
primary and/or compensatory restoration components that address one or 
more specific injuries associated with the incident. Primary 
restoration refers to any actions taken to return the injured natural 
resources and services to baseline on an accelerated time frame. 
Natural recovery, in which no human intervention is taken to accelerate 
recovery of the injured natural resource and service, is included under 
the primary restoration component. Compensatory restoration refers to 
any actions taken to compensate for the interim losses of natural 
resources and services, from the time of the incident until recovery is 
achieved.
    Each alternative must be designed so that, as a package of one or 
more actions, the alternative would satisfy OPA's goal to make the 
environment and public whole for injuries resulting from an incident. 
Only those alternatives considered technically feasible and in 
accordance with applicable laws, regulations, or permits may be 
considered further under this rule. Acceptable restoration alternatives 
include any of the actions authorized under OPA (restoration, 
rehabilitation, replacement, or acquisition of the equivalent), or any 
combination of those actions.
2. Primary Restoration
    Trustees must consider primary restoration actions, including a 
natural recovery alternative. Alternative primary restoration actions 
can range from natural recovery with no human intervention, to actions 
that prevent interference with natural recovery, to more intensive 
actions expected to return injured natural resources and services to 
baseline faster or with greater certainty than natural recovery.
    When identifying primary restoration actions to be considered, 
trustees should consider whether activities exist that would prevent or 
limit the effectiveness of restoration actions (e.g., residual sources 
of contamination). Trustees should also consider whether any primary 
restoration actions are necessary to return the physical, chemical, and 
biological conditions necessary to allow recovery or restoration of the 
injured natural resources (e.g., replacement of sand or vegetation, or 
modifying hydrologic conditions). Finally, trustees should consider 
whether restoration actions focusing on certain natural resources and 
services would be an effective approach to achieving baseline 
conditions (e.g., replacing essential species, habitats, or public 
services that would facilitate the replacement of other, dependent 
natural resource and service components).
3. Compensatory Restoration
    In addition to primary restoration, trustees must consider 
compensatory restoration actions in some or all of the restoration 
alternatives. The extent of interim natural resource or service losses 
that must be addressed by a particular restoration alternative may vary 
depending on the level and speed of recovery generated by the primary 
restoration component of the restoration alternative.
    To the extent practicable, when identifying the compensatory 
restoration components of the restoration alternatives, trustees should 
consider compensatory restoration actions that provide services of the 
same type and quality, and of comparable value as those injured. This 
is the preferred approach to identifying compensatory restoration 
actions. If such actions do not provide a reasonable range of 
alternatives, trustees should identify actions that, in the judgment of 
the trustees, will provide services of at least comparable type and 
quality as those injured. Where the injured and replacement natural 
resources and services are not of comparable value, the scaling process 
will involve valuation of injured and replacement services.
    In general, both primary and compensatory restoration of services 
must be accomplished through actions to restore natural resources or to 
preserve or enhance the amount, quality, and/or availability of natural 
resources that provide the same or similar services. This may include 
actions to improve access to natural resources, although in selecting 
such actions, the trustees must carefully evaluate the direct and 
indirect impacts of the improved access on natural resource quality and 
productivity. In the natural resource damages context, a service may 
not be viewed as an abstract economic unit or activity that may be 
restored independently of the natural resources from which the service 
flows.
4. Scaling Restoration Actions
    To ensure that a restoration action will appropriately address the 
injuries resulting from an incident, trustees must scale the action. 
For primary restoration, scaling as described in the rule 

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generally applies to acquisition and/or replacement actions, whereas 
the amount of direct restoration or rehabilitation to undertake may be 
determined based on such factors as area of habitat contaminated at 
unacceptable levels, or the volume of removed sand that should be re-
supplied. The approaches that may be used to assess the appropriate 
scale of a restoration action to compensate for public losses include 
resource-to-resource or service-to-service approaches, or valuation 
approaches. Trustees should be careful to avoid double-counting, which 
could result from developing multiple restoration actions that 
compensate for ecological and direct human services losses over time. 
For example, when determining the need for compensatory restoration 
actions that directly address lost human services, trustees should take 
into account any compensation for those lost human services provided by 
other actions intended to compensate for lost ecological services.
a. Resource-to-Resource and Service-to-Service Scaling Approaches
    Under the resource-to-resource and service-to-service approaches to 
scaling, the appropriate quantity of replacement natural resources and/
or services is determined by obtaining equivalency between the injured 
and replacement natural resources and/or services, after appropriately 
discounting for differences in the timing of the injury and the 
replacement. Trustees must consider use of the resource-to-resource or 
service-to-service approach for actions that provide natural resources 
and/or services of the same type and quality, and comparable value to 
those injured.
    Under the resource-to-resource or service-to-service approach, NOAA 
recommends use of habitat equivalency analysis, or comparable 
procedures, when injured natural resources and/or services are 
primarily of indirect human use (e.g., species habitat or biological 
natural resources for which human uses are primarily off-site). (See 
Appendix B at the end of this preamble for a description of habitat 
equivalency analysis.) If injured services are human uses (e.g., 
recreational services), then a behavioral model of human use may be 
used to determine the scale of the restoration action necessary to 
provide the appropriate level of human uses. For example, if the 
interim lost services are lost recreational beach days, then the 
restoration action may be designed to provide the requisite number of 
recreational beach days by, for example, improving access to existing 
public beaches.
b. Valuation Approach
    Where trustees have determined that resource-to-resource or 
service-to-service scaling is not appropriate, trustees may use the 
valuation approach to scaling. The valuation approach requires that 
trustees determine the amount of natural resources and/or services that 
must be provided to produce comparable value to the public as the loss 
in public value resulting from the injuries. The approach relies on the 
concept that lost value can be determined using one of a variety of 
possible units of exchange, including units of natural resource 
services or dollars. The valuation approach requires that the value of 
injured natural resources and/or services be measured explicitly, and 
that a restoration action provide natural resources and/or services of 
equivalent value to the public. To properly scale a restoration action, 
trustees might have to measure the values of varying sizes of the 
restoration action to determine the size of an action that will replace 
the value of injured natural resources and/or services. For proper 
comparison, all values lost or provided over time should be converted 
into present value terms by discounting.
    The valuation approach may be implemented with separate 
calculations of losses and gains. A variety of valuation procedures is 
available for this purpose, including the travel cost method, factor 
income approach, hedonic price models, models of market supply and 
demand, contingent valuation, and conjoint analysis. (See Appendix B at 
the end of this preamble for descriptions of these procedures.)
    Where feasible, trustees should use the same or similar valuation 
procedures for measuring the value of the injured services and the 
value of the services provided by the restoration actions. Trustees 
must ensure that bias is not introduced into the scaling calculations 
via the separate calculations of losses and gains, particularly when 
different valuation procedures are used.
    Alternatively, it may be possible to implement the valuation 
approach with a single survey eliciting the direct resource-to-resource 
trade-offs between the injured natural resources and potential 
compensatory natural resources. Conjoint analysis, or contingent choice 
analysis, may provide suitable procedures for these measurements.
    Trustees may use any reliable procedure suitable for scaling 
compensatory restoration that meets the standards for acceptable 
procedures in Sec. 990.27 of the rule. Where the circumstances are such 
that a site-specific application of a valuation procedure does not meet 
the reasonable cost criterion, the trustees may consider using benefits 
transfer. The choice of approaches in a particular context will depend 
upon the types of injuries and the type of services provided by the 
restoration action.
    If valuation of the natural resources and/or services provided by a 
compensatory restoration action could not, in the judgment of the 
trustees, be performed within a reasonable time frame or at a 
reasonable cost consistent with Sec. 990.27(a) of the rule, the 
trustees may calculate the monetary value of the injured natural 
resources and/or services, and then select the scale of a restoration 
action that has a cost equivalent to the lost monetary value. However, 
the responsible parties may request that trustees value the natural 
resources and services provided by the restoration action, following 
the process outlined in Sec. 990.14(c) of the rule.
c. Treatment of Uncertainty and Discounting
    When scaling a restoration action, trustees should address the 
uncertainties associated with the predicted consequences of both the 
primary and compensatory restoration actions that will affect the level 
and duration of losses from the injury and gains from the compensatory 
restoration action. In addition, trustees must take account of the 
value of time in the scaling calculations by discounting to the present 
the interim lost services or the value of interim lost services due to 
the injury, as well as the gain in services or service value from the 
restoration action. The reference date for the discounting calculation 
is the date at which the demand is presented.
    NOAA recommends that, where feasible, the trustees should use risk-
adjusted measures of losses and gains, in conjunction with a riskless 
rate of discount reflecting the social rate of time preference for 
natural resources (i.e., the rate society is willing to substitute 
between present and future consumption of natural resources with 
certainty). Risk-adjusted measures of losses and gains take account of 
the fact that people tend to be risk averse, and must be compensated 
for bearing uncertainty. For example, it may be possible to compensate 
for uncertainty in outcomes from compensatory restoration actions with 
a larger scale action. Because of the difficulty in determining the 
rate of time preference 

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for goods (such as natural resources) that are not generally sold in a 
market, a real rate of three percent (3%) is recommended as a riskless 
rate, unless justification is presented for a rate more appropriate for 
the specific context. Alternatively, if the streams of losses and gains 
cannot be adequately adjusted for risks, then NOAA recommends use of a 
discount rate that incorporates a suitable risk adjustment to the 
riskless rate.
    Existing economic literature suggests that three percent (3%) is a 
reasonable choice for the social rate of time preference, given that it 
is the middle of the range of values for the subjective rate of time 
preference implied by long-run growth models of the U.S. economy. 
Further, 3% is at the lower end of the range of the financial 
opportunity costs of consumption, which are relatively low for 
individuals who are net savers, and much higher for individuals who are 
net borrowers. The long-term average real after tax rate of return on 
3-month Treasury bills, a proxy for a riskless savings asset, is around 
one percent (1%), though more recent rates are substantially higher 
(around 2% during the 1983-1994 period). Consumer borrowing rates 
depend upon the source of financing, but may exceed ten percent (10%) 
in real terms for many credit cards. Because consumers' use of natural 
resources does not occur primarily through market transactions, 
consumers do not necessarily adjust their inter-temporal consumption of 
natural resources in response to the relevant intertemporal financial 
trade-offs available to them; nonetheless, the financial opportunity 
costs provide an additional reference point.
    The analysis should be conducted in real terms (e.g., in units of 
services, or in dollars of a specified base year). By definition, an 
analysis conducted in units of natural resources or services is in real 
terms. If the analysis is conducted in money value terms, then all 
money values should be specified in terms of the dollars of a specified 
base year. To adjust the measures of monetary losses or gains to 
dollars of the specified base year, the Consumer Price Index is most 
appropriate when the measure of losses is consumer surplus. 
Alternatively, for more generalized measures of losses or for future 
projections of inflation, trustees may use the Gross Domestic Product 
price index, for which the Administration predicts a time-series of 
future deflators every year. Sources of information for discounting are 
identified in the preamble discussion of discounting in the 
Implementation Phase.
C. Evaluation of Restoration Alternatives
1. General
    Once trustees have developed a reasonable range of restoration 
alternatives, they must evaluate those alternatives. This evaluation is 
based, at a minimum, on:
    (i) The cost to carry out the alternative;
    (ii) The extent to which each alternative is expected to meet the 
trustees' goals and objectives in returning the injured natural 
resources and services to baseline and/or compensate for interim 
losses;
    (iii) The likelihood of success of each alternative;
    (iv) 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;
    (v) The extent to which each alternative benefits more than one 
natural resource and/or service; and
    (vi) The effect of each alternative on public health and safety.
    Based on an evaluation of these factors, trustees must select a 
preferred restoration alternative(s). If the trustees conclude that two 
or more alternatives are equivalent based on the above factors, the 
trustees must select the most cost-effective alternative.
    When selecting a restoration alternative, trustees should consider 
the relationship between costs and benefits. However, reducing the 
selection process to a strict comparison of restoration costs to 
monetized natural resource values is not required and may not be 
appropriate. Instead, the rule requires trustees to evaluate each 
alternative according to the factors listed above and identify a 
preferred alternative. NOAA believes this approach provides adequate 
protection against selection of an inappropriately costly alternative.
2. Pilot Restoration Projects
    If the range of restoration alternatives under consideration is 
limited or poorly developed, or if a promising restoration action 
cannot be adequately evaluated without testing, trustees may implement 
pilot projects. Pilot projects should only be undertaken when, in the 
judgment of the trustees, these projects are likely to successfully 
provide information for the evaluation factors specified above at a 
reasonable cost and in a reasonable time frame. Examples of situations 
where pilot projects may be appropriate include application of a proven 
technology in a different habitat type, or using different species than 
those used in previous applications.
D. Restoration Plans
1. Purpose
    After selecting a restoration alternative, trustees must prepare a 
Draft Restoration Plan. Development of a Draft Restoration Plan 
provides a vehicle for informing the affected and interested public of 
the results of the trustees' analyses and decisions, and encouraging 
public review. Public review can also supplement expert peer review 
when comments are solicited from various professional communities or 
other knowledgeable persons.
2. Draft Restoration Plan
    A Draft Restoration Plan must 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 and evaluated under 
this rule;
    (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 and need for interim corrective 
action.
    When developing the Draft Restoration Plan, trustees must clearly 
define plan objectives that specify the desired outcome to be 
accomplished, and the performance criteria by which successful 
restoration will be judged. Trustees must, at a minimum, determine what 
criteria will constitute success such that responsible parties are 
relieved of responsibility for further restoration actions or 
necessitate corrective actions in order to comply with the terms of a 
restoration or settlement agreement.
    Performance criteria include structural, functional, temporal, and/
or other demonstrable goals that the trustees should determine with 
respect to all restoration actions. For example, an agreement to create 
new intertidal marsh habitat as compensation for a marsh injured by oil 
could be described by performance criteria including the number of 
acres to be created, location, elevation of new habitat, species to be 
planted and details for planting such as 

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density, and time frame in which identifiable stages of the restoration 
action should be completed.
    The types of parameters that should be addressed in monitoring 
include duration and frequency of monitoring needed to gauge progress 
and success, the 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.
3. Public Review and Comment
    Public review and comment of both 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 the rule, but must be sufficient to satisfy OPA's requirement for 
public involvement in planning restoration. Thus, trustees should 
consider such factors as the form of the involvement (e.g., a hearing, 
notice, or solicited comments), extent of public involvement (e.g., 
timing and frequency), and the forum for communicating with the public 
(e.g., local papers, the Federal Register, direct contacts to known 
interested parties).
4. Final Restoration Plan
    After reviewing public comments on the Draft Restoration Plan, 
trustees must develop a Final Restoration Plan. As part of the Final 
Restoration Plan, trustees must consider comments on the Draft 
Restoration Plan. In response to the comments, the trustees may need to 
modify the restoration alternatives being considered, develop and 
evaluate alternatives that have not been given serious consideration by 
the trustees, supplement, improve, or modify the analyses, make factual 
corrections, or explain why the comments do not warrant further trustee 
response, citing the reasons to support the trustee position, and 
possibly indicate the circumstances that would trigger reappraisal or 
further response.
    In the Final Restoration Plan, trustees indicate the restoration 
alternatives that will be implemented and include the information in 
the Draft Restoration Plan. The format of the Final Restoration Plan, 
which essentially follows that of the Draft Restoration Plan, should 
clearly indicate all significant changes to the Draft Restoration Plan.
E. Use of a Regional Restoration Plan or Existing Restoration Project
    The rule allows trustees to consider all or part of an existing 
Regional Restoration Plan or other existing, planned, or proposed 
environmental restoration project as one of the range of restoration 
alternatives, including natural recovery, evaluated to restore injuries 
resulting from a particular incident. Like any other restoration 
alternative considered, Regional Restoration Plans and existing 
restoration projects must be consistent with OPA's requirement that 
damages recovered be used solely to restore, replace, rehabilitate, or 
acquire the equivalent of injured natural resources and/or services. 
Regional Restoration Plans or other existing restoration projects meet 
this requirement if the plan or project will return injured natural 
resources and/or services to baseline and/or compensate for interim 
losses. Use of an existing plan or project may be considered as either 
a primary or compensatory restoration action under the rule, depending 
on the circumstances of the incident, injuries, and natural resources 
or services provided by the plan or project.
    Under the rule, selection of an existing plan or project as the 
preferred restoration alternative requires that the plan or project had 
been developed with public review and comment, or is subject to public 
review and comment in accordance with the rule. The existing plan or 
project must also be demonstrated to provide a sufficient link to the 
incident in terms of the type and scale of natural resources and 
services provided by the plan or project.
    The rule also allows trustees to recover partial funding of 
existing plans or projects from responsible parties, where a plan or 
project that represents the preferred primary or compensatory 
restoration for an incident will provide significantly greater levels 
of natural resources and/or services than those lost as a result of the 
incident. In these instances, trustees may request 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 implement the existing plan or project. Trustees must make 
diligent efforts to ensure that the selected project is implemented in 
a reasonable time following initial recovery of partial funding.

Subpart F--Restoration Implementation Phase

I. Introduction

    After the completion of the Restoration Planning Phase, the 
trustees must: (i) close the administrative record that incorporates 
the Restoration Planning Phase and open a new administrative record for 
the Restoration Implementation Phase; (ii) present a demand for 
implementation or for damages to the responsible parties; (iii) 
establish an account to receive any payments from the responsible 
parties; and (iv) implement restoration. Additional actions that could 
occur during the Restoration Implementation Phase include filing an 
action for damages where the responsible parties refuse to implement or 
pay for restoration on receipt of the trustees' demand, or seeking an 
appropriation from to the Oil Spill Liability Trust Fund, so that 
restoration can be implemented.

II. Administrative Record

    Within a reasonable time after completing restoration planning 
under subpart E of the rule, the administrative record of the 
Restoration Planning Phase must be closed. Except as noted below, no 
additional documents will be placed in the record. The closed record 
will constitute the body of information supporting the trustees' 
decisions through restoration planning.
    Once the record is closed, trustees may, as a general matter, only 
add documents that:
    (i) Are offered by any interested party that did not receive actual 
or constructive notice of the Draft Restoration Plan and the 
opportunity to comment on the Plan;
    (ii) Do not duplicate information already contained in the 
administrative record; and
    (iii) Raise significant issues regarding the Final Restoration 
Plan.
    For practical reasons, it is likely that trustees will need to open 
and maintain an additional administrative record to document 
implementation of restoration. This record should document, at a 
minimum, all Restoration Implementation Phase decisions, actions, and 
expenditures, including any modifications made to the Final Restoration 
Plan. This record is necessary to keep the public informed and for 
potential use in any enforcement actions, such as seeking additional 
work from the responsible parties to comply with the restoration plan 
and implementing agreements. The record will also ensure an accurate 
and complete accounting of all actions and 

[[Page 456]]
costs associated with implementing the Final Restoration Plan.
    The administrative record for restoration implementation should 
follow the same guidance for opening and maintaining the previous 
record, and for its availability as discussed in Sec. 990.45 of the 
rule. The costs of maintaining the administrative record and making it 
available to the public are part of the costs of restoration.

III. Presenting a Demand for Damages to the Responsible Parties

    If the trustees and responsible parties have successfully 
implemented cooperative restoration planning, the responsible parties 
will have thorough knowledge of the trustees' preferred restoration 
alternative(s) and associated costs. In the best circumstances, the 
responsible parties will already have entered into an enforceable 
agreement to either pay assessment costs and the costs associated with 
implementing the Final Restoration Plan, or to implement the Plan 
according to trustee performance criteria and with trustee oversight 
and reimburse trustees for assessment and oversight costs. Any such 
existing agreements with the responsible parties should be described in 
the Draft and Final Restoration Plans.
    However, where such an agreement with responsible parties has not 
been achieved, the trustees must follow some specific statutory 
requirements to recover natural resource damages, as described below.
    After completion of restoration planning under subpart E of the 
rule, the trustees must present a demand in writing asking the 
responsible parties either to:
    (i) Implement the Final Restoration Plan or component of a Regional 
Restoration Plan or existing restoration project, subject to trustee 
oversight, and reimburse the trustees for their assessment and 
oversight costs; or
    (ii) Advance to the trustees a specified sum representing 
assessment costs and the trustees' estimate of all direct and indirect 
costs associated with developing and implementing the Final Restoration 
Plan or some component of a Regional Restoration Plan or an existing 
restoration project, discounted as provided in Sec. 990.63 of the rule.
    When the trustees use a Regional Restoration Plan, as provided in 
Sec. 990.56 of the rule, 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. To avoid litigation, 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 costs and the trustees' 
estimate of the costs of implementation.
    The demand must also include: identification of the incident from 
which the claim arises; identification of the trustees asserting the 
claim and a statement of the statutory basis for their trusteeship; a 
brief description of the injuries for which the claim is being brought; 
the index to the administrative record; the Final Restoration Plan or 
Notice of Intent to Use a Regional Restoration Plan or Existing 
Restoration Project; and a request for reimbursement of reasonable 
assessment costs, as defined in Sec. 990.30 of the rule and discounted 
as provided in Sec. 990.63(b) of the rule; the cost, if any, of 
conducting emergency restoration under Sec. 990.26 of the rule, 
discounted as provided in Sec. 990.63(b) of the rule; and 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.

IV. Discounting and Compounding Components of the Claim

A. General
    Discounting is necessary for the trustees to be able to present a 
claim for a ``sum certain,'' as required by section 1001(3) of OPA (33 
U.S.C. 2701(3)). The reference date for the discounting calculations is 
the date at which the demand is presented. Trustees must discount 
future restoration costs back to the present and compound assessment 
and emergency restoration costs already incurred forward to the 
present. The use of discounting in scaling restoration actions is 
discussed separately in subpart E of the rule.
    NOAA recommends that trustees use the U.S. Treasury borrowing rate 
on marketable securities of comparable maturity to the period of 
analysis for both calculations, with some qualifications noted below. 
Alternatively, for state or tribal claims for past damage assessment 
and restoration costs, the state or Indian tribe may use the state or 
tribal borrowing rate on marketable securities. The analysis should be 
conducted either in terms of nominal values (denominated in dollars of 
the year in which the losses or gains are incurred) or in constant 
dollars of a specified base year. For compounding past emergency 
restoration and assessment costs, trustees should use U.S. Treasury 
rate as the discount rate and represent the costs in nominal terms, 
since the nominal interest is observed and past costs are likely to be 
denominated in nominal terms. Anticipated inflation can be incorporated 
in estimates of future restoration costs with an appropriate inflation 
index.
B. Estimated Future Restoration Costs
    Most restoration actions will be carried out over a period of 
years. If funds are insufficient to cover the full costs of 
restoration, including post-implementation maintenance and monitoring 
operations, natural resource and service recovery will be incomplete, 
and the public will be deprived of full compensation for the injuries. 
NOAA recommends that, for discounting future restoration costs, 
trustees specify future restoration costs in nominal terms (i.e., in 
terms of dollars of the year in which the costs will be incurred) and 
then discount the nominal costs using the nominal U.S. Treasury rate 
for marketable securities of comparable maturity to the period of 
analysis, when this rate of return is available to the trustees for 
investment of settlement monies. To specify the future restoration 
costs in nominal terms, the trustees should employ the indices of 
projected inflation appropriate to the major components of the 
restoration costs (e.g., construction price indices for construction 
costs; the federal employee wage index for trustee monitoring costs). 
If component-specific inflation indices are unavailable, the Gross 
Domestic Product price index may be used.
    If legal and/or institutional constraints prevent investment of 
settlement monies yielding the U.S. Treasury rate for marketable 
securities of comparable maturity to the period of analysis, trustees 
should structure the claim to ensure that sufficient funds will be 
available to fund the entire selected restoration alternative. One 
option is to calculate the discounted value of this component of the 
claim using an alternative discount rate that represents the yield on 
settlement monies available to the trustees. An alternative option is 
to structure a multi-year schedule for claim payments to ensure it 
provides the cash flow for each year required for planned expenditures.
    If the settlement is structured so that the responsible parties 
carry out the restoration actions, the trustee restoration costs to be 
discounted will be substantially reduced, but they will 

[[Page 457]]
not be eliminated because trustee monitoring and oversight costs will 
still be included in the claim.
C. Past Assessment and Emergency Restoration Costs
    Past assessment and emergency restoration costs may accrue from the 
time of the incident to the date of the demand. To calculate the 
present value of these costs at the time the demand is presented to the 
responsible parties, the trustees will compound forward the costs 
already incurred. Because the rate of interest employed as the compound 
rate for past costs incurred should reflect the opportunity cost of the 
money spent, NOAA recommends that the trustees use the actual U.S. 
Treasury rate for marketable securities of comparable maturity to the 
period of analysis for discounting this component of the claim. NOAA 
acknowledges that, at the discretion of the trustees, a state or tribal 
borrowing rate may be used to compound the state or tribal component of 
past costs. Where the costs are denominated in dollars of the year in 
which they were incurred (i.e., in nominal terms), the nominal interest 
rate should be employed.
D. Sources of Data
    U.S. Treasury bill and bond rates may be found in the Federal 
Reserve Bulletin, issued monthly, or the Treasury Bulletin, issued 
quarterly. The Gross Domestic Product fixed-weighted price index and 
the Consumer Price Index may be found in the Survey of Current 
Business, issued monthly, and the Economic Report of the President, 
issued annually. The Administration prediction for future Gross 
Domestic Product deflators is updated twice annually at the time the 
budget is published in January or February and at the time of the Mid-
Session Review of the Budget in July. The current Treasury rates and 
inflation adjustment assumptions, as well as guidance in calculation 
procedures, are reported in regular updates of Appendix C of Circular 
No. A-94, available from the OMB Publications Office (202-395-7332).

V. Unsatisfied Demands

    If the responsible parties deny all liability for the claim or fail 
to settle the claim embodied in the demand within ninety (90) calendar 
days after they are presented with the demand, trustees may elect to 
commence an action in court against the responsible parties or 
guarantors, or to seek an appropriation from the Oil Spill Liability 
Trust Fund. Thus, delivery of the demand should be made in a manner 
that establishes the date of receipt by the responsible parties.
    Judicial actions and claims must be filed within three (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 the statute of limitations for natural 
resource damages under OPA (33 U.S.C. 2717(f)(1)(B) and 2712(h)(2)).

VI. Opening an Account for Recovered Damages

    Section 1006(f) of OPA (33 U.S.C. 2706(f)) requires that sums 
recovered by trustees in satisfaction of a natural resource damage 
claim be retained, without further appropriation, in a revolving trust 
account. Sums recovered for past assessment costs and emergency 
restoration costs may be used to reimburse the trustees. All other sums 
must be used to implement the Final Restoration Plan, implement all or 
an appropriate component of a Regional Restoration Plan or existing 
restoration project.
    Where multiple trustees are involved in a recovery, trustees may 
wish to establish a joint account. One acceptable mechanism would be an 
account under the registry of the applicable federal court when there 
is a joint recovery involving federal and non-federal trustees. The 
joint account should be managed by the trustees through an enforceable 
written agreement that specifies the parties authorized to endorse 
expenditures out of the account, and the agreed-upon procedures and 
criteria for such expenditures.
    Although a joint account may be the preferred approach, trustees 
also have the option of dividing the recoveries and depositing their 
respective amounts in their own separate accounts, if such action would 
be consistent with the terms and objectives of the restoration plan. 
These accounts should be interest-bearing, revolving trust accounts.
    Trustees may establish escrow accounts or any other investment 
accounts, if otherwise authorized by law. Funds in such accounts must 
only be used as specified in section 1006(f) of OPA (33 U.S.C. 
2703(f)).
    Trustees must maintain appropriate accounting and reporting 
procedures to keep track of the use of sums recovered. Brief reports on 
the status of the sums recovered and expenditures for particular 
incidents should be made part of the administrative record for the 
Restoration Implementation Phase.
    Any sums remaining in an account established under this section 
that are not used either to reimburse trustees for past assessment and 
emergency restoration costs or to implement restoration must be 
deposited in the Oil Spill Liability Trust Fund, as provided in section 
1006(f) of OPA (33 U.S.C. 2706(f)).

VII. Additional Considerations

A. General
    As discussed throughout the rule, the Final Restoration Plan may be 
implemented by the trustees, or by the responsible parties with trustee 
oversight. In either case, several common steps may characterize the 
Restoration Implementation Phase, including establishment of a trustee 
committee and/or Memoranda of Understanding, development of more 
detailed workplans for the conduct of restoration actions, monitoring 
and oversight, and evaluation of restoration success or need for 
corrective actions.
B. Trustee Committee and/or Memorandum of Understanding
    In many instances, it is likely that a trustee committee and/or a 
Memorandum of Understanding or other agreements will have governed 
trustee involvement through the Restoration Planning Phase. However, it 
is critical that these agreements extend through the Restoration 
Implementation Phase, or that new agreements or committees are formed 
for the restoration implementation. At a minimum, representatives of 
each participating trustee agency should be appointed to an oversight 
committee. Functions of such a committee may include authorizing 
expenditures from a joint account, participating in monitoring and 
oversight of restoration actions, evaluating performance criteria for 
restoration actions, and making the determination that the goals and 
objectives of the Final Restoration Plan have been achieved or 
determining the type of corrective actions that need to be pursued, and 
ensuring that these actions are implemented.
C. Detailed Workplans
    Depending on the incident and the restoration alternative(s), 
detailed workplans for accomplishing restoration goals and objectives 
may have been developed during the Restoration Planning Phase. Clearly, 
as many details outlining the restoration expectations, performance 
criteria, timelines, criteria for success, etc., should be included in 
the Final Restoration Plan and in agreements with the responsible 
parties as are practicable to determine prior to presenting the demand 
or settling a claim. 

[[Page 458]]

D. Monitoring and Oversight
    Reasonable monitoring and oversight costs are included in 
recoverable damages. A well-designed and executed monitoring and 
oversight plan is required to assess progress toward the stated goals 
and objectives of a restoration plan. Reasonable monitoring and 
oversight costs are limited to those costs necessary to determine 
restoration success, or the need for, type of, and scale of corrective 
actions. Monitoring should be designed around performance criteria that 
will indicate success of restoration.
E. Restoration Success and Corrective Actions
    Restoration plans, particularly those including agreements for 
responsible parties to implement restoration, must identify criteria 
against which success and completion of restoration actions will be 
judged.
    In some cases, pilot projects will lessen the need for corrective 
measures. In other cases, settlement agreements can include reopeners 
to deal with specific points of uncertainty, for instance, for 
significant injuries that could not be determined and/or quantified at 
the time of a settlement. Another possibility is for the responsible 
parties to deposit an agreed-upon amount of money in an escrow account 
to cover future contingencies that could not be fully anticipated at 
the time of the settlement. These funds would then be used for future 
actions, or revert to the responsible parties if not needed. In most 
cases, trustees should consider including a mechanism to deliberate the 
need for and type of corrective actions in a settlement agreement where 
the types of contingencies that suggest the need for corrective actions 
cannot be completely foreseen.
    In all cases, the type and scale of corrective actions must be 
determined relative to the restoration goals and objectives set out in 
the Final Restoration Plan. In addition, trustees must recognize that 
circumstances well beyond the control of any of the parties may not be 
the basis of requiring corrective actions, such as natural occurrences 
that would meet an ``Act of God'' standard.

TREATMENT OF COMMENTS

Extension of Comment Period

    Comment: Several commenters requested a 60-day extension in the 
public comment period. These commenters stated that an extension was 
required to strike the proper balance between the time allotted for the 
public's review and comment, and the time needed for a thorough 
analysis of comments on the proposed rule. According to some 
commenters, the public's interest in having an adequate opportunity to 
review and comment on regulatory initiatives under the Administrative 
Procedure Act (5 U.S.C. 551-59, 701-06) should not be compromised by 
the establishment of arbitrary deadlines. One commenter requested that 
the comment period be extended for at least 60 days after the last of 
the guidance documents is made available for public review, as a 
thorough understanding and review of the guidance documents are 
essential to adequately present comments on the proposed rule.
    Response: NOAA has made every effort to consider all comments 
submitted on the 1994 proposal, the August 3, 1995, proposed rule, and 
comments expressed during the conferences held in August and September 
of 1995. NOAA believes that the rule describes the assessment process 
in sufficient detail, including listing of decision points, 
determinations, decision criteria, and standards for selection of 
procedures such that the guidance documents are truly complementary, 
and not required to understand how to plan assessments in accordance 
with this rule.

Subpart A

Section 990.10--Purpose

    Comment: Many commenters supported the scope and direction of the 
new proposal. Some of these commenters specifically noted that the 
focus on restoration is a positive change. One of these commenters 
stated that this approach will provide increased flexibility and 
improve cooperation among trustees and responsible parties in achieving 
restoration. Other commenters noted that this proposal is simpler and 
more straightforward. Several of these commenters in particular 
supported the move away from the use of claims based upon monetization 
of natural resource values.
    Response: NOAA notes and appreciates the support from the 
commenters for the scope and direction of the rule.
    Comment: While supportive of the new direction of the rule, one 
commenter pointed out that, as a federal agency, NOAA should recognize 
its fiduciary duty to Indian tribes and tribal natural resources, and 
take care not to impinge upon the ability of the tribes to recover 
damages.
    Response: NOAA believes the rule's restoration focus will better 
facilitate recovery of damages, while still allowing trustees, 
including tribes, the discretion to apply whatever assessment approach 
is most appropriate to the particular natural resources and services 
injured by a given incident.
    Comment: Another commenter suggested that NOAA should consider 
reserving troublesome sections of the rule for future development, 
perhaps through one or more Federal Advisory Committee Act (5 U.S.C. 
App. 2) groups.
    Response: NOAA does not believe that any provisions of the rule are 
so wholly problematic to warrant the treatment suggested by the 
reviewer. NOAA believes that the process embodied in the rule will 
facilitate development of appropriate solutions to some questions that 
can only be answered on an incident-by-incident basis.
    Comment: One commenter stated that the new approach is an untried 
theory, thus it is unclear whether this approach would be better or 
worse than the approach under the CERCLA rule. Another commenter 
suggested that the provisions in the proposed rule are vague, that 
critical terms are undefined, and insufficient guidance is provided for 
implementation of the approach. Another commenter noted that the 
proposed rule fell short of providing trustees with a balance of 
discretion and constraint needed to apply the still-developing science 
of natural resource damage assessment within the dictates of the law.
    Response: NOAA notes that the approach embodied in the rule is far 
from untried, rather it embodies the approaches taken in some of the 
most successful cooperative settlements reached to date. Trustees, 
responsible parties, and interested members of the public must be 
afforded the ability to respond to injuries resulting from incidents 
that can vary greatly from incident-to-incident; in this respect, 
natural resource damage assessment will never be a static field. NOAA 
has defined more terms in the final rule. The rule provides technical 
and legal boundaries within which assessments must fall to be in 
compliance with OPA. For instance, restoration must be necessary and 
linked to the injuries from an incident under the rule. Finally, 
assessment procedures must be technically appropriate for the 
circumstances of an incident while providing information of use in 
determining restoration needs.
    Comment: Some commenters argued that the excessive and arbitrary 
assessments anticipated, given the rule's unlimited grant of discretion 
to trustees, will result in unnecessary financial 

[[Page 459]]
burdens that cannot be borne by the maritime industries. Some 
commenters suggested that the effect of the rule will be to rid from 
U.S. waters all forms of water craft, as well as to freeze businesses 
potentially liable under the rule. Another commenter suggested that the 
potential large recoveries allowed by the rule could threaten the 
ability of private individuals and businesses who suffer quantifiable 
economic losses as a result of incidents to obtain full and fair 
compensation for their losses.
    In contrast, several commenters argued that the new proposal is 
significantly weaker than the 1994 proposal, with no justification 
except industry pressure for an untested restoration-based approach 
instead of the well-tested and supported economic valuation procedures. 
The commenters suggested that this approach will lead to greater delays 
in prosecuting and settling cases and that, to conform with the intent 
of Congress, the rule must allow trustees greater discretion in 
choosing assessment procedures or restoration options.
    Response: The intent of the rule is solely to ensure that natural 
resources and their services that are injured, destroyed, or lost as a 
result of an incident will be restored where there is a need to do so, 
and where feasible and cost-effective means to accomplish restoration 
are available. The rule's focus on restoration will eliminate unneeded 
assessment studies and prevent unnecessary adversarial conflicts over 
misunderstood goals of trustees. This rule invites responsible parties 
to act cooperatively and responsibly to seek expeditious and cost-
effective restoration, while clearly constraining trustees' actions to 
those necessary to achieve OPA's restoration goals. Thus, costs and 
damages will not be excessive or unpredictable. The rule has no 
relation to private party claims that may be brought against 
responsible parties under OPA, but the cost savings expected under the 
rule from cooperation alone should alleviate fears that some third 
parties will go uncompensated. In any event, uncompensated third party 
claims may be presented to the Oil Spill Liability Trust Fund.

Section 990.11--Scope

    Comment: One commenter requested that the rule clarify that its 
provisions apply only to assessments being conducted under this rule, 
not other causes of actions, for example causes under federal admiralty 
or maritime law.
    Response: NOAA has explicitly stated in the rule that the various 
provisions of this rule would apply only to assessments being conducted 
under this rule for purposes of bringing a natural resource damages 
claim pursuant to OPA and thus do not affect claims brought under other 
authorities.
    Comment: One commenter stated that the rule should provide guidance 
on how to distinguish trustee claims on behalf of the public from 
private causes of action, particularly when natural resource injuries 
are caused indirectly by an incident on private property.
    Response: It is not possible for NOAA to describe all instances 
where trustee and private party claims may appear to be duplicative. 
NOAA notes that the rule requires that trustees determine their 
jurisdiction to proceed under the rule, which includes a determination 
that the trustees have relevant responsibility over natural resources, 
as defined under OPA, that are expected to be injured by an incident. 
However, the preamble now includes guidance in the discussion of 
Sec. 990.22 for trustees to avoid double recovery of damages with 
private parties.
    Comment: A number of commenters remarked on NOAA's inconsistent 
reference to what may be assessed and what may be restored under the 
rule, by interchangeably using the terms ``natural resources and/or 
services,'' and ``natural resources or services.'' Similarly, the 
commenters suggested that the proposed rule inconsistently referred to 
OPA's goal as making the ``environment and public whole,'' or simply 
making ``the public whole.''
    Response: The rule has been clarified to reflect OPA's intent to 
make the environment and public whole for injuries resulting from an 
incident. This intent is clear in OPA's reference to natural resources 
themselves as the focus of restoration, and in the distinction between 
restoration costs and diminution in value as elements of a claim for 
damages. Complete and expeditious restoration may be the best way to 
make both the environment and public whole.

Section 990.13--Effect of Rule

    Comment: One commenter questioned why, if a foreign entity is a 
trustee under OPA, such entity cannot receive the rebuttable 
presumption.
    Response: OPA does not, by its terms in section 1006(c)(1) (33 
U.S.C. 2706(c)(1), grant the rebuttable presumption to foreign 
trustees.
    Comment: Some commenters noted that the preamble description of the 
meaning of the rebuttable presumption, i.e., that the responsible party 
has the burden of proving that the trustees' claim and determinations 
are incorrect, is wrong. Instead, the commenters stated that the 
rebuttable presumption is overcome when the preponderance of the 
evidence indicates a different result. Similarly, other commenters 
argued that section 1006(e)(2) of OPA (33 U.S.C. 2706(e)(2)) describes 
the rebuttable presumption as applying only to the determination or 
assessment of damages, therefore it is only the final amount of 
damages, not the particular steps taken to reach that result that 
receive the rebuttable presumption.
    Response: NOAA has revised the rule to incorporate the statutory 
language describing the provision of a rebuttable presumption for 
assessments. In response to the comment regarding the meaning of such a 
provision, NOAA interprets this presumption to mean that the 
responsible parties have the burdens of presenting alternative evidence 
on damages and of persuading the fact finder that the damage assessment 
presented by the trustee(s) is not an appropriate measure of damages.
    Comment: Several commenters expressed strong support for the 
provision found in Sec. 990.20(b) of the proposed rule extending the 
rebuttable presumption to state, local, and tribal assessment 
procedures. Some of these commenters noted that this will promote 
consistency by providing an incentive for the development and use of 
state and tribal procedures that are consistent with the federal 
approach, thus benefiting responsible parties who deal with trustees 
from different regions of the country. One commenter noted that the 
five listed requirements for consistency with the proposed OPA rule are 
straightforward and should aid state, local, and tribal trustees in 
efficient implementation of the rule. Other commenters supported the 
provision, but suggested that the rule explicitly include compensation 
schedules, models, and procedures that estimate expected injuries in 
the language of this section. One commenter was concerned that it is 
unrealistic to expect any given procedure will not conflict in some way 
with the proposed OPA rule.
    In contrast, several other commenters strongly objected to 
extending the rebuttable presumption to state, local, or tribal 
assessment procedures as being contrary to OPA. These commenters stated 
that the criteria provided in the rule are far too general to 
constitute substantive standards for the performance of assessments. 
The commenters argued that NOAA has no authority to define the scope of 
the rebuttable presumption since it is not a regulatory issue 
implicating the assessment of damages, but is within the exclusive 
province of the federal courts 

[[Page 460]]
to address. The commenters stated that Congress intended the rebuttable 
presumption to attach only to assessments performed under section 
1006(d) of OPA (33 U.S.C. 2706(d)), and only according to substantive 
standards promulgated by NOAA, and that NOAA may not delegate this 
authority. One other commenter argued that it would be unfair to allow 
the rebuttable presumption for the plethora of assessment procedures 
now available.
    Response: NOAA has revised Sec. 900.20 of the rule and removed the 
explicit reference to state, local or tribal assessment procedures. 
NOAA agrees that determining the scope of application of the rebuttable 
presumption is not a necessary task in promulgating this rule. However, 
NOAA notes that existing procedures that may be applicable to assessing 
natural resource injuries and restoration needs may be used for 
assessments under this rule, regardless whether those procedures were 
promulgated under state laws respecting natural resource damage 
assessment, developed through private scientific research, or developed 
or adapted by the parties assessing the injuries of a particular 
incident. It is not feasible to identify all assessment procedures, nor 
the varied ways of applying such procedures, that will constitute 
reliable and valid technical application for all potential incidents. 
Thus, this rule specifies standards, in Sec. 990.27, that must be met 
in order for any particular procedure to be used and deemed in 
accordance with this part.
    Comment: One commenter stated that the rule does not provide 
sufficient guidance to determine whether trustees' discretionary 
actions are cost-effective, technically feasible, or in accordance with 
generally accepted scientific practices. Therefore, assessments 
conducted pursuant to this rule should not be granted a rebuttable 
presumption. Another commenter, also arguing that it would be unfair to 
grant a presumption to procedures that are speculative and unproven, 
suggested that implementation of the rebuttable presumption be delayed 
until there is more experience with restoration and valuation 
procedures.
    Response: NOAA believes that the rule does provide the appropriate 
constraints and standards for fashioning assessments that will be 
technically sound, cost-effective, and reliable. The assessment focuses 
on determining only the types and amounts of restoration required given 
the particular injuries resulting from individual incidents. A 
requirement to use ``generally accepted scientific practices'' would 
result in overly-costly assessments in most instances, as the goals of 
research science may be different than the goals of science for 
purposes of natural resource damage assessment and restoration. 
Finally, procedures cannot be deemed to be reliable or unreliable out 
of context; the merits of different procedures will vary depending on 
how they are proposed to be used in a given incident scenario. This 
judgment will be made by trustees, in an open record atmosphere, with 
input from responsible parties and the public.
Use of Other Assessment Procedures, and the Scope of the Rebuttable 
Presumption
    Comment: Several commenters took issue with the provision in the 
proposed rule that allowed the rebuttable presumption to apply to other 
procedures in lieu of or in addition to the process described in this 
rule so long as the other process is ``in accordance with this part.'' 
The commenters stated that Congress intended the assessment to function 
as an integrated unit with each step in the process leading logically 
to the next. The commenters also cited the Ohio decision (Ohio, et al., 
v. U.S. Department of the Interior, 880 F.2d 432 (D.C. Cir. 1989)) as 
specifically emphasizing that the rebuttable presumption is 
particularly appropriate given adherence to all of the regulatory 
procedures that, in their totality, result in a logical, disciplined, 
efficient, and cost-effective assessment. Several commenters argued 
that such a provision is contrary to the statutory goal of cost-
effectiveness. Some commenters also found the language of the provision 
both confusing and internally inconsistent because it would be 
impossible for ``another'' process, which is a process other than one 
included in the rule, to still be a process that is ``in accordance 
with'' the rule.
    Response: To eliminate confusion, NOAA has deleted the section 
referring to other procedures from the final rule. The rule provides 
procedural and substantive standards in Sec. 990.27 that must be 
complied with in order for an assessment to be judged ``in accordance'' 
with this rule. Trustees must demonstrate that their assessments are in 
accordance with this rule on an incident-by-incident basis in order to 
obtain the rebuttable presumption.

Section 990.14--Coordination

Coordination Among Trustees
    Comment: Several commenters argued that the rule should require, 
and that OPA mandates, trustee coordination during assessments to avoid 
an adversarial and litigation-charged atmosphere among trustees and 
prevent double recovery of damages. Another commenter suggested that 
the rule limit the number of trustees to those who have clear 
restoration concerns for a particular incident. Some commenters 
suggested that the rule deny the rebuttable presumption to trustees who 
do not coordinate, while others suggested that an affirmative proof 
burden of certifying a lack of double recovery should be placed on non-
coordinating trustees. Some commenters requested that model MOUs for 
trustee coordination be included in the rule, while others who support 
trustee coordination and incident-specific coordination agreements, 
applauded the omission of any model agreements.
    Response: Changes to the rule state that trustees should coordinate 
their assessments in order to ensure there is no double recovery of 
damages. NOAA believes that any claimant that files what appears to be 
a duplicative claim for natural resource damages against a responsible 
party will face a substantial burden of proof to demonstrate that the 
claim has not already been satisfied. NOAA notes, however, that it is 
conceivable that claims for distinct natural resource injuries 
resulting from an incident could be effectively processed independently 
by trustees without double recovery of damages. Finally, NOAA strongly 
supports development of agreements among trustees, but realizes from 
experience that it is not feasible to specify a single workable model 
for all trustees, locales, and incidents.
    Comment: Several commenters supported the designation of a Lead 
Administrative Trustee (LAT), so long as the rule provides flexibility 
in this designation. These commenters suggested that the rule allow for 
co-LATs or sequential LATs, recognizing that one trustee may be the 
lead for restoration planning while another trustee might be the lead 
for the implementation phase. One of these commenters stated that 
designation of an LAT should not be mandatory. Another commenter 
suggested that, in cases where an incident affects multiple trustees, 
the state trustee should be the LAT because of superior knowledge of 
``local'' natural resources. Still other commenters argued that the 
rule should vest arbitration authority in a lead trustee, citing the 
Ohio decision as stating that such a provision is ``entirely 
reasonable.'' The commenters stated that arbitration authority would be 
essential to settling disputes among trustees, which might disrupt 

[[Page 461]]
cooperative efforts among trustees and responsible parties.
    Response: It has been NOAA's experience that an LAT is essential to 
efficiently and cost-effectively manage most assessments. Executive 
Order 12,777, section 1 (56 FR 54757, October 22, 1991), requires 
Federal trustees to designate one trustee to act as Lead Administrative 
Trustee for incidents at which more than one federal trustee is 
involved. NOAA has amended the rule to allow for co-LATs or sequential 
LATs. NOAA does not believe it is necessary, advisable, or within legal 
authority to mandate that state trustees always serve as LATs. Finally, 
NOAA believes it is unnecessary to provide for arbitration or veto 
authority in a single trustee, given the experience that demonstrates 
trustees have been successful in a consensus decisionmaking approach to 
assessments.
    Comment: One commenter specifically asked that the rule address the 
issues associated with a trustee agency who might also be a responsible 
party at an incident. The commenter suggested that the trustee/
responsible party would want to work closely with co-trustees to 
develop a restoration strategy, but recognizes that, in doing so, would 
open itself up to the risk of shared information being used against it 
as a responsible party. The commenter also asked if the co-trustees 
could exclude the trustee/responsible party from the assessment if the 
trustee/responsible party could not afford to fund the assessment 
activities. Other commenters stated that the rule should specifically 
preclude a trustee agency that is also a responsible party for a 
particular incident from being eligible to be an LAT for that incident. 
The commenters suggested that such a provision would avert conflicts of 
interest, minimize problems of public perception, and help the trustee/
responsible party fulfill its dual obligations.
    Response: NOAA notes that the rule cannot exclude participation by 
any trustee. Where a trustee is also a responsible party, all of the 
co-trustees may want to determine among themselves the nature and 
extent of involvement by any given trustee. Generally, participation 
should not be denied unless it would impede the assessment or be an 
inherent conflict of interest.
Coordination With Response Agencies
    Comment: One commenter suggested that the rule explicitly state 
that restoration actions by trustees are intended to supplement the 
initial response and cleanup activities of response agencies. Another 
commenter suggested that the rule require that response agencies 
coordinate with trustees.
    Response: NOAA agrees that restoration actions by trustees are 
intended to supplement the initial response and cleanup activities of 
response agencies. NOAA believes that response agencies and trustees 
should coordinate during the response phase to prevent or minimize 
residual injuries to natural resources that would require restoration. 
However, OPA does not grant NOAA authority to place requirements on 
response agencies.
Coordination With Responsible Party
    Comment: Several commenters stated that early and substantial 
involvement of the responsible party in the assessment would 
significantly reduce the threat of litigation and facilitate cost-
effective, feasible restoration. Some of these commenters, however, 
stated that the rule language is somewhat ambiguous and vague as to the 
timing and extent of that participation, as well as the extent of the 
trustees' discretion in excluding or refusing to continue responsible 
party participation. These commenters suggested that the rule should 
provide for mandatory participation by the responsible party, unless 
the trustee can demonstrate that such participation will interfere with 
trustees' fulfilling their responsibilities under the rule and OPA. One 
of these commenters suggested that the rule provide that the parties 
seek mediation if reasonable disagreements develop, to prevent trustees 
unfairly characterizing the responsible party as interfering. Another 
commenter stated that the responsible party should be involved in the 
entire process as soon as trustees arrive on site and that the trustees 
should not be allowed to exclude a responsible party unless there is 
clearly documented evidence that the responsible party is intentionally 
undermining the process. Another commenter suggested that the rule 
encourage the parties to enter into an agreement respecting the 
coordination of responsible party participation, with trustees 
prohibited from imposing conditions that are not directly related to 
the efficient coordination of the process.
    Other commenters expressed concerns with participation by the 
responsible party. These commenters argued that the rule should ensure 
that trustees have the discretion as to whether, when, and how the 
responsible parties are permitted to participate and when the trustees 
will be able to dismiss a responsible party that is interfering with 
the process. One commenter also suggested that the decision to exclude 
a responsible party from the process should not be reviewable, so that 
trustees would not have to divert time and resources in defending that 
decision. Several commenters stated that the rule needs to be 
consistent among sections in the provisions for responsible party 
participation. Some commenters pointed out that the responsible party's 
role is unique from that of the public represented by the trustees, in 
that the responsible party has an interest in protecting the investment 
of its owners and stock holders, and that this natural conflict of 
interest should be acknowledged by the rule.
    Some commenters suggested additional or alternative considerations 
for responsible party participation, including the level of cooperation 
provided by a particular responsible party in prior incidents and the 
willingness of the responsible party to defer to the trustees' final 
decisions. Other commenters stated that the responsible party should be 
subject to the same administrative record rules as the trustees and, 
therefore, be precluded from assembling experts and data outside the 
public process. One commenter noted that a need for funding should not 
be a determining factor in involving the responsible party in the 
assessment, while another commenter stated that the rule should require 
that the responsible party fund the assessment, requiring that the 
responsible party place the trustees' estimate of costs in escrow.
    Response: NOAA believes that open and cooperative assessments 
performed by trustees and responsible parties can result in the most 
expeditious and cost-effective assessments and restoration. NOAA has 
clarified the rule to require trustees to invite identified responsible 
parties to participate in the assessment as early as practicable, but 
no later than issuing the Notice of Intent to Conduct Restoration 
Planning. NOAA has also clarified the rule to indicate that it is 
within trustees' authority to determine to what extent responsible 
parties may participate, and that trustees can terminate or limit 
responsible party participation if it interferes with trustees 
fulfilling their statutory obligations. The rule specifies that the 
minimum level of participation that will be afforded to responsible 
parties is notification of all determinations required by trustees 
under the rule, and notice and comment opportunity on all documents 
that may significantly affect the direction or outcome of assessment 
decisions. In no 

[[Page 462]]
event may trustees delegate essential statutory decisionmaking powers 
to responsible parties. The rule also now includes guidance, such as 
that suggested by the commenters, to determining the nature and extent 
of responsible party participation. Responsible party funding is not a 
pre-condition to their participation. The rule also strongly encourages 
formal agreements between trustees and responsible parties so as to 
ensure cooperation and cost-effectiveness. The parties are encouraged 
to reach agreement on a list of facts, such as the natural resources 
injured, the extent of injury, the most appropriate assessment 
procedures to determine injury and/or restoration needs, and how the 
results of the procedures will be interpreted.
Public Involvement
    Comment: Several commenters noted that public involvement should be 
clearly designed so as not to detract from the primary goal of 
restoration in a timely manner. One commenter suggested a graded 
approach to public involvement. Some commenters noted the potential 
expenses of public involvement. One of these commenters stated that 
increased costs of public outreach efforts should be explicitly 
included in recoverable assessment costs or trustees will be unable to 
comply with these requirements. Another commenter stated that trustees 
should be required to give notice to the responsible party regarding 
the stages at which opportunities for public involvement will be 
provided. One commenter, however, stated that the rule should expand 
the provisions for public involvement and allow such involvement in 
several stages of the process.
    Response: Public involvement is required by OPA in development of 
restoration plans. NOAA considers that this requirement will be 
fulfilled by allowing, at a minimum, opportunities for public 
involvement in development of draft and final restoration plans that 
will form the basis of any claim for damages. However, NOAA notes that 
it may be advantageous or necessary to seek broader public input, 
depending on the circumstances of a particular incident, particularly 
when that input can be obtained from members of the public that may 
have particular expertise concerning the affected environment or 
proposed assessment or restoration approaches. NOAA is mindful that 
restoration decisions made by trustees are made on behalf of the 
public, so public involvement should augment the decisionmaking 
process. Involving the public does not need to be excessively costly if 
it is well-planned and tailored to the incident. The costs of public 
involvement required by OPA are recoverable assessment costs. Finally, 
as a member of the affected public, responsible parties will be 
notified when trustees seek public input.

Section 990.15--Facilitation of Restoration

    Comment: Several commenters expressed strong support for pre-
incident planning, some stating that such exercises should be required 
by the rule. Some of these commenters pointed out that the rule should 
encourage involvement of response agencies, natural resource managers, 
and area industry representatives in the planning process. The 
commenters also requested that the rule clarify how these plans might 
be coordinated with or included in Area Contingency Plans or U.S. Fish 
and Wildlife Service Recovery Plans and Habitat Conservation Plans. One 
commenter specifically suggested that the rule add consideration of 
pre-incident baseline and injury data-collection procedures and 
protocols to the list of possible pre-incident planning activities. One 
commenter asked for clarification as to whether pre-incident planning 
would be subject to NEPA.
    Response: NOAA has clarified the rule to indicate that potentially 
responsible parties, appropriate response personnel, local governmental 
natural resource management entities, and local environmental groups or 
representatives should be included in any pre-incident planning. NOAA 
does not believe it has the authority to mandate pre-incident planning 
under this rule, but does note that Area Contingency Plans or U.S. Fish 
and Wildlife Service Recovery Plans and Habitat Conservation Plans may 
provide an efficient focal point for structuring pre-incident damage 
assessment planning. Finally, NOAA does not believe that pre-incident 
planning is subject to NEPA, except where Regional Restoration Plans 
serve as, or become part of, a programmatic Environmental Impact 
Statement process.
    Comment: One commenter supported further development of Regional 
Restoration Plans with extensive federal and state natural resource 
agency coordination. The commenter noted, however, that funding for 
such planning activities is in question and asked for any information 
on available funding sources for such plans, other than recovered 
damages.
    Response: NOAA believes that activities such as identifying 
planned, proposed, or desired environmental restoration projects, 
particularly for areas expected to be injured often or severely by 
incidents, can provide a highly cost-effective means to identify 
appropriate restoration alternatives for particular incidents. NOAA 
suggests that development of these project databases can be a useful 
addition to pre-incident planning activities. Funding for these 
activities may come from a variety of sources such as joint funding by 
trustees and those parties potentially liable under OPA for 
restoration. Regional restoration planning in some areas is already 
being performed pursuant to other authorities, such as the National 
Estuary Program Plans.

Section 990.16--Review of Rule

    Comment: Some commenters expressed support for NOAA's commitment to 
review and revise this rule every five years, especially with the need 
to keep the OPA rule consistent with the CERCLA rule, which is reviewed 
every two years.
    Response: NOAA has determined that the specific five-year review 
provision is unnecessary. NOAA is committed to maintaining the accuracy 
and relevance of the assessment process described in the rule and will 
make every effort to keep it current.

Subpart B

Section 990.20--Relation to CERCLA Rules

    Comment: Several commenters spoke of the need for consistency 
between the OPA and CERCLA rules, with one reviewer stating that the 
proposed OPA rule does not seem to be coordinated with the CERCLA rule. 
Another commenter asked, given that the OPA rule is substantially 
different from the CERCLA rule, whether DOI will incorporate OPA rule 
changes into its regulation so that it is effective for incidents 
inland and in the Great Lakes areas, or whether trustees and 
responsible parties have to operate within two separate processes. 
Another commenter suggested that the OPA rule is confusing in its 
discussion about where the OPA rule will supersede 43 CFR part 11.
    Response: The Department of the Interior participated in the 
interagency working group that drafted and reviewed the OPA rule. Thus, 
NOAA and DOI took advantage of the experience gained in applying the 
CERCLA rules. The rule was also formulated in recognition of the 
differences between oil and hazardous substances, and the different 
nature of 

[[Page 463]]
the incidents involving these two types of products. NOAA has referred 
questions regarding incorporation of OPA rule provisions into the 
CERCLA rule to DOI. However, it should be noted that the OPA rule does 
apply to incidents in all navigable waters, which would include inland 
incidents and incidents in the Great Lakes. NOAA has clarified the rule 
to incorporate statutory language regarding where the OPA rule 
supersedes 43 CFR part 11.
    Comment: One commenter questioned whether coal tar and other coal-
derived chemicals are more appropriately classified as hazardous 
substances, and covered by CERCLA rule, rather than the OPA rule.
    Response: NOAA notes that whether coal tar and other coal-related 
chemicals are oils or hazardous substances is an on-going issue that is 
being evaluated by the federal agencies implementing OPA.

Section 990.22--Prohibition on Double Recovery

    Comment: One commenter suggested that requiring consideration of 
independent actions of other trustees may not be possible if trustees 
are acting separately rather than together.
    Response: Trustees must diligently avoid double recovery of 
damages. In NOAA's experience, the identity of other trustees with 
interests in incidents has always been ascertainable early in the 
process, thus facilitating efforts to coordinate assessment objectives 
and activities.

Section 990.23--Compliance With NEPA and the CEQ Regulations

    Comment: Some commenters noted that rigid compliance with NEPA 
notice requirements may not be desirable or necessary for incidents 
involving non-federal trustees, and that these notice activities should 
be optional at trustees' discretion. The commenters also suggested the 
rule should explicitly state that the provisions of the rule fulfill 
the public notice requirements of NEPA, even without providing the 
Notice of Intent to Conduct Restoration Planning.
    Response: The rule has been amended to indicate that NEPA 
compliance is solely a federal trustee requirement, and that the 
procedures entailed in compliance will vary depending on the identity 
of federal trustees involved and their regulations governing their own 
NEPA conduct. The notice requirements contained in various sections of 
the final rule are not related solely to NEPA compliance, but are 
important elements to facilitate the open and cooperative process 
envisioned in this rule and OPA.

Section 990.25--Settlement

    Comment: Some commenters were concerned that the U.S. Department of 
Justice (DOJ) will impede settlements, that state trustees can restore 
natural resources in a more efficient manner through administrative 
agreements, and that the rule should provide guidance for the scope and 
timing of DOJ participation. One of these commenters suggested that DOJ 
taking 3% of settlement sums for participation is unwarranted and, 
perhaps, an improper use of restoration money.
    Response: Except where explicitly provided by statute, only the 
Department of Justice has the authority to compromise claims of the 
United States. One of these exceptions, applicable to some federal 
trustees operating under OPA, is a provision allowing executive 
agencies to compromise claims within their authority when such claims 
do not exceed $100,000, or such other amounts as the Attorney General 
may from time to time prescribe (33 U.S.C. 3711). The Department of 
Justice plays a vital role in ensuring that the laws of the United 
States are applied similarly by different federal agencies. The costs 
to the Department of Justice of collecting recoveries for claims of the 
United States in civil litigation, as authorized by H.R. 2519 (November 
16, 1993), should be included in the estimated costs of the assessment 
so that restoration money is not impacted.
    Comment: Several commenters disagreed with the rule's provisions 
concerning terms of settlements. One commenter argued that the decision 
to accept such a settlement should be within the discretion of a 
trustee, so long as it is reasonable and justified. Some commenters 
stated that this provision could be read as establishing substantive 
standards to govern adequacy of a settlement, which would be 
inappropriate and outside NOAA's authority. Several of these commenters 
suggested that the rule simply provide that settlement sums may only be 
expended in accordance with a restoration plan that is made available 
for public review.
    Response: NOAA has revised the settlement provision, now 
Sec. 900.25, to reflect the standard of review that federal courts have 
used in reviewing natural resource damage assessment settlements under 
other laws, and settlements by federal agencies in general. Federal 
courts will look favorably upon the determination by an agency 
entrusted with authority to prosecute laws that a settlement of a claim 
is in the public interest--that it is fair, reasonable, adequate, and 
consistent with the purposes of the governing statute. With respect to 
OPA, NOAA expects that a court will look to see that a trustee has made 
a determination of the adequacy of the settlement to restore, 
rehabilitate, replace, or acquire the equivalent of the injured natural 
resources and services. NOAA recognizes that in reviewing an agency's 
action in accepting a settlement a court will also look to such factors 
as litigation risk, time and expense to litigate, and advantages to 
obtaining an immediate recovery through settlement, rather than through 
litigation.

Section 990.26--Emergency Restoration

    Comment: One commenter argued that the On-Scene Coordinator (OSC) 
must authorize emergency restoration and that trustees act in a 
consultative role during the removal phase. Another commenter suggested 
that any emergency restoration action had to be tied into the National 
Response System to alleviate any potential contradictory actions or 
interference with the OSC's actions. One commenter suggested that 
trustees do not have independent authority to act or intervene in 
response activities during that phase. This same commenter noted, 
however, that the requirement that responsible parties and the public 
be notified of emergency restoration actions, with the responsible 
parties additionally being invited to participate, will tend to foster 
cooperation and trust. Another commenter asserted responsible parties 
should be invited to participate at first notice of an emergency, not 
within a ``reasonable time frame.'' Several commenters supported 
allowing responsible parties to implement emergency restoration. 
Another commenter suggested that notice to the public or responsible 
parties should be discretionary due to the time-sensitive nature of 
such actions.
    Response: NOAA fully agrees that any actions conducted during the 
response phase should not interfere with nor be independent of the 
OSC's activity. The rule is clear that the OSC must be notified prior 
to implementation of emergency restoration actions by trustees, and 
that emergency restoration may not interfere with response actions. 
Further, the rule requires that any emergency restoration actions must 
be coordinated through the trustee Regional Response Team (RRT) member 
or designee, since the RRT is a part of the National Response System, 
and that this member must work through the OSC to ensure adequate 
coordination. In addition, the National Oil and 

[[Page 464]]
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, 
is clear on the types of and procedures for coordination between the 
trustees and the OSC, who retains overall responsibility for activities 
during response. However, only trustees, not response entities, have 
the authority to assess injuries and collect restoration costs under 
OPA. NOAA has clarified the rule to indicate that known responsible 
parties must be notified and invited to participate in emergency 
restoration actions, to the extent time permits. Notice to the public 
is provided to the public, to the extent practicable, of these planned 
emergency restoration actions.
    Comment: Another commenter noted that the requirement that 
emergency restoration costs should not be unreasonable appears to 
appropriately suggest that trustees must affirmatively demonstrate the 
reasonableness of such costs, without any entitlement to the rebuttable 
presumption.
    Response: If trustees responsibly make a determination that 
emergency restoration is needed to prevent or minimize natural resource 
injury, that the action is feasible and likely to succeed, and that the 
costs of such action are not on their face excessive compared to the 
expected benefits in limiting injury, then emergency restoration 
actions and costs are reasonable, and entitled to a rebuttable 
presumption.
    Comment: Another commenter questioned whether there are any 
exclusions for liability for damages resulting from any additional 
injuries caused by the emergency restoration or response actions.
    Response: Liability for natural resource damages extends to 
injuries that result from reasonable and necessary response and 
emergency restoration actions taken in response to an actual or 
threatened discharge of oil.

Section 990.27--Use of Assessment Procedures

Criteria for Selecting Assessment Procedures--General
    Comment: One commenter noted that the greater flexibility in 
assessment procedures provided by the proposed rule is likely to result 
in greater likelihood of litigation. Another commenter suggested that 
such flexibility may result in trustees applying numerous procedures, 
charging the responsible party with these costs, then basing their 
claim on the procedures that yield the highest damage figure. Another 
commenter stated that the trustees should be required to document the 
decision as to why a particular assessment procedure was chosen.
    Other commenters, however, agreed with the rule listing criteria 
that assessment procedures should meet, rather than specifying 
acceptable procedures themselves. Some commenters suggested that 
trustees must be provided flexibility to select the most efficient 
procedure to assess injuries, based upon factors such as reasonable 
cost, validity, reliability, and incident-specific considerations, 
however, one of these commenters suggested that the rule should simply 
require that procedures be reliable, valid, and cost-effective as 
minimum criteria and that other incident-specific factors should be 
considered in selection of procedures.
    Response: In eliminating categories of assessment procedures, and 
providing instead a list of standards to guide selection of the most 
appropriate assessment procedure for the injury and incident at hand, 
the rule will make assessments less rigid and more cost-effective, and 
NOAA expects this will reduce litigation by fostering cooperative 
settlements. The rule expressly prohibits the approach suggested by the 
commenter in which trustees may apply a suite of procedures to produce 
the highest damages estimate, and charge for all of the procedures 
used. This approach would clearly violate provisions of Sec. 990.27 and 
the definition of reasonable assessment costs. Finally, standards for 
selecting assessment procedures, and the types of assessment procedures 
available, are now included in Sec. 990.27.
    Comment: Most commenters applauded the approach taken in subpart E 
of the proposed rule to provide generic standards for possible 
assessment procedures, given the universe of procedures available and 
possible injuries likely to result from incidents. However, several 
commenters were concerned that some of the proposed criteria might be 
mutually exclusive and difficult to meet for all incidents. For 
instance, one commenter noted that procedures that meet the criterion 
that procedures must provide information useful in determining and 
quantifying restoration needs, might not be the most cost-effective 
procedures. The commenter also noted that procedures that provide 
information required for restoration determinations may entail 
additional costs with no assessment benefit, violating the requirement 
for consideration of cost. Some commenters suggested that none of these 
criteria be mandatory, or that only the ``cost-effectiveness'' and 
``valid and reliable'' criteria might be appropriately mandatory.
    Response: The standards for acceptable procedures were moved from 
subpart E of the proposed rule into a new section, Sec. 990.27, to 
emphasize that these standards apply to any and all procedures used in 
performing assessments under this rule. Procedures must meet the 
standards in order to be deemed part of an assessment in accordance 
with this rule. The concerns that one standard may be contrary to 
another have been resolved. The standards now provided in Sec. 990.27 
must all be met, but the criterion concerning restoration information 
has been changed to a recommendation, rather than a requirement, in 
recognition that procedures that provide information useful in 
restoration scaling are not always available, nor are they always cost-
effective.
    Comment: Some commenters were concerned that the criteria requiring 
cost-effectiveness and weighing benefits of a procedure against its 
costs might be interpreted to require strict cost-benefit analyses of 
all possible procedures, inappropriately diverting trustee efforts from 
assessment work, and needlessly driving up costs. A few other 
commenters suggested that strict cost-benefit analyses should be 
required. One commenter suggested that the balance should more 
appropriately weigh expected assessment costs against overall expected 
damages, because assessment costs cannot be meaningfully scrutinized 
relative to expected informational benefits from an assessment 
procedure.
    Response: The various standards for procedures were never intended 
to require a strict cost-benefit analysis. The rule language has been 
revised to indicate that additional costs of more complex procedures 
must be reasonably related to the expected increase in information 
provided by those procedures. The standards are intended to guide 
trustees in selecting individual assessment procedures and discourage 
trustees from using procedures that do not provide information 
beneficial for restoration planning purposes.
    Comment: Some commenters suggested that the terms ``reliable'' and 
``valid'' should be expressly defined. Various definitions were offered 
by the commenters.
    Response: The technical definitions of the terms ``reliable'' and 
``valid'' vary in usages of the terms across various disciplines. In 
general, under this rule, these terms refer to technical judgments by 
experts in a particular field that a procedure is consistent with best 
technical practices for the measure 

[[Page 465]]
being investigated under the circumstances.
Specific Procedures
    Comment: Many of the commenters' discussion on assessment 
procedures focused on how specific procedures might relate to the 
standards provided in the rule. Some commenters were concerned that the 
listing of procedures in the appendix to the preamble might be 
interpreted as an endorsement of those procedures. The commenters 
requested that the rule state that procedures that do not meet the 
criteria are not entitled to the rebuttable presumption. The commenters 
noted that, if specific procedures are listed in the preamble, NOAA has 
a duty to provide additional standards relating to the use of such 
procedures, either in the rule or in guidance documents. Other 
commenters stated that the rule should clarify that reliable and valid 
procedures are not limited to those specifically listed in the preamble 
and should not necessarily be excluded from use under the rule.
    Response: Assessment procedures must meet the standards in the rule 
in order to be deemed part of an assessment conducted in accordance 
with this rule. No explicit or implicit endorsement, nor lack of 
endorsement, is intended to be given to the specific identification or 
omission of any particular procedure in either the preamble or rule. It 
is not feasible for the rule to identify all acceptable procedures, nor 
the acceptable applications of those procedures, for all possible 
circumstances of all incidents. Procedures and their applications must 
be evaluated on a case-by-case basis.
    Comment: A number of commenters stated that NOAA should not 
establish requirements for use of procedures and strongly supported 
NOAA's decision to remove specific guidance on the application of 
certain procedures (e.g., contingent valuation, benefits transfer). The 
commenters suggested that discussion on how to apply specific 
procedures should be placed in guidance documents. One commenter 
suggested that the rule should allow trustees to use any criteria that 
are generally accepted by the scientific community. One commenter 
stated that the four criteria listed in the rule are still 
insufficient, and could be strengthened by distilling the most 
important guidelines in the guidance documents into rule language so 
that they will be binding upon trustees.
    Response: NOAA believes that discussion on the appropriateness and 
use of specific assessment procedures is more suited to guidance 
documents. The commenters should refer to these guidance documents as 
well as the literature for support along this line.
    Comment: Another commenter asked that the rule clarify that 
trustees may use models or extrapolate from literature when it is more 
appropriate and cost-effective than gathering site-specific data.
    Response:  The rule, in Sec. 990.27, provides that such procedures 
as models or literature extrapolation that meet the standards for 
acceptable procedures are available for use in accordance with the 
rule.
Option of Responsible Party to Request Alternative Procedures
    Comment: Some commenters argued that trustees should be required to 
use an incident-specific procedure when the conditions in the rule are 
met. However, the commenters stated that the conditions currently in 
the rule are contrary to OPA because they force the responsible party 
to waive the right to challenge the reasonableness of the assessment 
costs. The commenters argued that this would force responsible parties 
to choose between using a procedure that may assess non-existent 
damages and waiving their statutory right to expect reasonable 
assessment costs. Another commenter noted that the responsible party 
should not have to advance the assessment costs if the responsible 
party can demonstrate that an incident-specific assessment is really 
appropriate and warranted. Some commenters also suggested that the rule 
specify a time frame for the responsible party request, such as 21 days 
from the time of the incident, rather than the ambiguous ``acceptable 
time frame'' currently in the rule.
    One commenter pointed out that responsible parties would want to do 
expanded assessments in any case in order to assist in the defense of 
third party claims.
    Some commenters noted that detailed field studies may be expensive 
and in those instances where the likelihood of injury is so high as to 
not require extensive study, trustees and responsible parties may agree 
that non-field-based procedures may be used.
    Other commenters argued that the ultimate decision on assessment 
procedures should always be left to the trustees. The commenters 
suggested that, if trustees determine that procedures selected by a 
responsible party are technically unsound or would inadequately address 
natural resource injuries, then the trustees should have the ability to 
modify or reject the request. Some commenters also noted that the rule 
should be clarified to state that the responsible party must advance 
the trustee's estimate of the costs of conducting the incident-specific 
assessment.
    Response: The final rule has clarified, in Sec. 990.14(c), the 
conditions for the responsible party option to request a different 
procedure than that selected by the trustees. The option will be 
provided to responsible parties who have accepted the trustees' 
invitation to participate in an assessment, and who are doing so 
cooperatively. Alternative procedures proposed by the responsible party 
must meet the standards for acceptable procedures provided in 
Sec. 990.27. The rule allows trustees to reject the responsible party's 
request if the alternate procedure, in the judgment of trustees, is not 
technically feasible, not technically or scientifically sound, and 
could not be completed within a reasonable time frame. Because 
participating responsible parties will have already been afforded 
opportunity to review and comment on proposed procedures that trustees 
have selected in accordance with Sec. 990.27, the responsible party 
option is really a mechanism to resolve disputes between trustees and 
responsible parties as to the most appropriate procedure for the injury 
and incident at hand. Responsible parties should be willing to fund 
alternative procedures they feel strongly about, given that trustees 
will have already made a determination that other procedures are 
appropriate, and they should agree not to challenge the results of 
procedures that they request be used. The rule has removed the 
requirement that responsible parties agree not to challenge the costs 
of those requested procedures.
Simplified Procedures--General
    Comment: Several commenters raised objections to the use of 
simplified assessment procedures. Several commenters argued that all 
existing simplified procedures, federal and state, are flawed and 
unreliable. The commenters argued that these procedures should not be 
used without any field verification. Several of these commenters stated 
that any procedure that generates average values is by definition not 
incident-specific as required by OPA, basic requirements for proof of 
injury and causation in tort, and recent case law on causation 
requirements.
    Several commenters argued that there are strong statutory arguments 
against simplified procedures under OPA. Some of these commenters 
stated that the wording of the various sections of OPA that set forth 
the natural resource damage provisions and describe liability 

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under OPA all explicitly speak to direct impacts ``resulting from'' a 
particular incident, not some speculative concept of what might have 
resulted from the incident. The commenters cite section 1002(b)(2)(A) 
of OPA (33 U.S.C. 2706(b)(2)(A)), ``damages . . . that result from such 
incident,'' and section 1006(e)(1) of OPA (33 U.S.C. 2706(e)(1)) 
calling for rules to assess damages ``resulting from the discharge of 
oil.'' These commenters also noted legislative history associated with 
these provisions in OPA. A House Committee Report (H. Rep. No. 241, 
Part 1, 101st Cong., 1st Sess. at 34(Sept. 13, 1989)) is quoted 
supporting recovery for ``the natural resources that were injured.'' 
Also quoted was the Committee of Conference Report (H.R. (Conf.) Rep. 
No. 101-653, 101st Cong., 2d Sess. (1990) at 103) which refers to 
damages ``resulting from an incident.'' These commenters also argued 
that Congress rejected simplified procedures under OPA because an early 
draft of a Senate bill (S. 686, 101st Cong., 1st Sess., 
Sec. 102(d)(3)(A)(1989)) calling for simplified assessments was not 
incorporated into the final bill. The commenters stated that Congress 
could have adopted the type A model, which was in existence during the 
development of OPA, but didn't. In fact, the commenters noted that the 
Conference Report (at 109) explicitly states that the OPA rule, not the 
CERCLA rule, which contains the type A model, would apply to 
assessments under OPA.
    Some commenters referred to the procedures and requirements 
promulgated by the U.S. Department of Transportation concerning claims 
against the Oil Spill Liability Trust Fund (57 FR 36314 (Aug. 12, 
1992)) and suggested that such a claim would be rejected if based upon 
simplified procedures because such claims would not be based upon 
evidence of damages. These commenters argued that trustees must show 
evidence of actual exposure and actual injury at all levels of 
biological organization, not use models or literature to extrapolate 
upon evidence of exposure of some natural resources or lower-level 
biota to predict indirect exposure and a pathway to other, higher-
level, biota. The commenters argued that models and literature-based 
procedures are unreliable and tend to overstate injury and cannot take 
into account the various incident-specific factors that affect the 
outcome of incidents.
    Several commenters argued that these procedures may result in 
double recoveries for the same natural resources when one or more 
trustees and private claimants make claims based on the same natural 
resources, with a few commenters suggesting that these procedures 
promote uncoordinated actions by trustees.
    Some commenters stated that simplified assessment procedures, 
including models, need to incorporate uncertainty by, perhaps, giving a 
range of possible results rather than one definitive answer. Other 
commenters requested that any and all simplified procedures that might 
be included in the rule should be final procedures, submitted for 
public and industry review. Some commenters requested that the rule 
should provide sufficient standards and guidelines for the use of 
simplified procedures, including threshold levels for the use of those 
approaches.
    One commenter suggested an alternative to the simplified procedures 
listed in the rule. The commenter suggested that NOAA should develop a 
decision tree-based simplified procedure that would enable trustees to 
collect limited field samples and/or make minimal field observations 
and then, based on a process outlined in the rule, make a determination 
in cooperation with the responsible party of what, if any, restoration 
alternatives should be pursued.
    Other commenters stated that NOAA has unquestionable statutory 
authority to promulgate rules that include models and formulas. The 
commenters argued that the legislative history of OPA demonstrates 
Congress's desire to simplify assessment procedures and, therefore, it 
is NOAA's responsibility to accurately and cost-effectively promulgate 
the necessary procedures to make the public whole for injuries it has 
sustained. These commenters argued that it would be a waste of public 
and private resources to require trustees to conduct incident-specific 
assessments of injury when experience, models, and the literature are 
adequate to predict injury. The commenters pointed out that an 
assessment that incorporates the extensive preexisting body of 
knowledge is reliable, valid and on solid scientific standing.
    Some commenters expressed surprise over the depth of concern 
regarding the use of the simplified assessments, since they should 
reduce the costs of determining restoration alternatives and provide 
consistency to the process. These commenters indicated that the data 
and the ``bugs'' in the simplified procedures should be the concern, 
rather than the use of the procedures per se.
    The commenters stated that the argument that computer models fail 
to provide an incident-specific damage assessment is without merit. The 
commenters pointed out that model-based assessments may not be exact, 
but the same can be said for physical sampling or any scientific 
process in which averages are employed to approximate the true 
conditions. The commenters noted that computer analysis is simply 
another tool to be used in damage assessment and that, if responsible 
parties are concerned that liability for damages will be inaccurately 
determined using models or compensation formulas, they can simply opt 
to have a full-scale field research operation.
    Other commenters pointed out that the proposed rule listed only two 
types of simplified procedures, which could easily be misinterpreted to 
mean that these are the only two simplified assessment procedures 
usable under this section. To correct this problem, the commenters 
suggested that additional language is needed in the rule to provide 
flexibility and efficiency in the use of simplified procedures. The 
commenters requested that NOAA expand the description of ``simplified 
procedures'' by specifically referencing other procedures such as state 
formulas, or procedures such as habitat equivalency analysis. These 
commenters stated that the use of simplified procedures is the only way 
to determine restoration costs for the thousands of small incidents 
that occur annually, since trustees lack the personnel, time and 
financial resources to conduct in-depth, incident-specific assessments 
for each and every incident. Some commenters argued that, without 
procedures to address the vast majority of incidents, NOAA is failing 
to implement the intent of Congress to provide regulations that allow 
trustees to efficiently, reliably, and cost-effectively address the 
injuries to public natural resources from incidents.
    Other commenters argued that, since most incidents are less than 
1000 gallons, NOAA should make it a priority to include in the rule a 
credible simplified tool. The commenters suggested that the lack of 
such a procedure will result in a rule that does not fully meet the 
intent of OPA, since, at this time, the options listed in the rule are 
not available to trustees, nor is there any guarantee that they will 
ever become available. The commenters stated that provisions should be 
included in the rule that would allow for the development and use of 
other simplified procedures. Other commenters specifically suggested 
that passive values should be incorporated into these simplified 
procedures. 

[[Page 467]]

    Response: NOAA agrees that OPA intends that responsible parties be 
held liable only for restoration needed to redress the injuries caused 
by specific incidents. NOAA does not believe that simplified 
procedures, such the type A model per se, contravene the OPA liability 
limitations to actual injuries caused by specific incidents. However, 
the rule does not suggest, state, or imply that these procedures are 
acceptable procedures in all instances. Like any assessment procedure 
proposed for use under the rule, simplified procedures must meet the 
criteria for acceptable procedures listed in new Sec. 990.27. If a tool 
is not appropriate for the circumstances of an incident, it cannot be 
used and still receive a rebuttable presumption for assessments 
performed in accordance with this rule. The final rule, however, does 
not explicitly reference ``simplified'' procedures as a distinct 
category of assessment procedures, and does not identify any particular 
procedure(s) as appropriate for particular circumstances. This 
determination must be made by trustees on an incident-by-incident 
basis.
    NOAA places no significance on the omission of reference to 
simplified procedures in the final language of OPA. Congress merely 
chose not to tie NOAA's hands in promulgating these rules. The same 
conference committee report relied upon by many commenters to disavow 
simplified procedures states that these regulations should be designed 
to simplify the trustees' task of assessing and recovering the full 
measure of damages resulting from an incident. NOAA believes that 
Congress clearly intended that the rule should facilitate prompt, cost-
effective restoration, by providing a technical framework focused on 
restoration, not on needless scientific experimentation.
    While simplified procedures may be used as a stand-alone assessment 
procedure for small incidents, these procedures are rarely, if ever, 
used for larger incidents without some level of field assessment. In 
these instances, simplified procedures are used to quantify the extent 
of injury and scale restoration actions only after field investigations 
have determined that natural resources have been exposed, injuries have 
been demonstrated, or lost use has occurred.
Type A Model
    Comment: Several commenters argued that there are serious 
shortcomings in DOI's proposed type A models, and that NOAA should not 
allow use of these models in their current form under any conditions. 
Some of these commenters argued that NOAA should reserve this section 
until the models are made reliable. The commenters raised specific 
objections to certain provisions of the proposed type A models (e.g., 
cleanup and containment of oil, use of dispersants, bird oiling 
probabilities, boating and fishing closures, potentially grossly 
disproportionate restoration costs, possibly arbitrary and speculative 
mitigation costs). Many of these commenters argued that these 
unexplained problems make the proposed models unusable. Other 
commenters suggested that NOAA should continue to review and revise the 
models and subject them to further public comment.
    Some of these commenters stated that NOAA has not undertaken any 
review of the type A models that could constitute an independent 
finding of reliability. One of these commenters raised several 
procedural arguments regarding the rule's adoption of the type A 
models, particularly that adopting the proposed type A models would 
violate the Administrative Procedure Act principles of notice and 
opportunity for comment because the public cannot, at present, know 
what the final type A rule would be in the future. The commenter argued 
that, if NOAA wishes to use type A procedures, it must develop and 
propose its own version and subject it to public comment. Other 
commenters stated that the rule's criteria for the use of the type A 
model are too vague in simply requiring conditions ``sufficiently 
similar'' to those required under the CERCLA rule. Another commenter 
requested that NOAA revise the rule to specify that the type A models 
should not be used when the services provided in an area differ from 
those contained in the models, or when field observations clearly 
contradict model results.
    Some commenters disagreed with the use of models to assess injury 
because of the potential for determining damages where no injury 
exists. The commenters also argued that the lack of actual data in 
these procedures makes it impossible for trustees to evaluate 
restoration alternatives in the manner required by the rule. One 
commenter, although supporting the concept of a simplified procedure, 
urged NOAA not to adopt the type A models until they can be corrected 
to prevent occasionally arbitrary and unreasonable results and to focus 
on restoration, consistent with OPA. One commenter noted that 
predictions made through the use of models should not be allowed since 
these assume that an adverse change will always occur, whereas the 
evidence of past incidents shows that injury is not inevitable.
    One commenter noted that, if NOAA incorporates simplified 
procedures developed by DOI, NOAA would be engaged in a redelegation of 
its statutory authority under OPA.
    Response: First, NOAA was not tasked with promulgating any specific 
type of assessment procedure, thus there was no such duty that was 
inappropriately re-delegated to DOI. Further, as discussed above, DOI's 
type A models are not incorporated per se into the rule. Trustees 
desiring to use the models must evaluate whether these tools meet the 
acceptable procedures standards listed in Sec. 990.27, and if they are 
not met, trustees must determine whether use of the tools outweighs the 
loss of the rebuttable presumption, or whether another procedure exists 
that does meet the acceptable procedures standards. In addition, even 
if trustees have selected a procedure in accordance with the standards 
in Sec. 990.27, such as the type A model, participating parties who 
disagree with this decision can identify valid and reliable alternate 
procedures and request that trustees implement the alternate procedure, 
as provided in Sec. 990.14(c)(6) of the rule. Trustees must consider 
this request and determine whether to accept or reject the request 
based upon such factors as feasibility, validity, relevance, and 
timeliness of the suggested procedure. The various technical concerns 
raised by commenters may only be valid if a model is applied in certain 
circumstances, thus it would be inappropriate to bar use of the models 
completely under this rule.
Compensation Formulas
    Comment: Many comments received on the compensation formula 
proposed in 1994 deal with such issues as: utility for small incidents; 
understating or overstating damages; questions regarding factual 
underpinnings of the formulas; assumptions of injury built into the 
formulas; lack of authority to promulgate non-site-specific assessment 
procedures; predicted detrimental impacts on the oil industry; 
conclusive nature of formulas; size of incidents appropriate for 
application of formulas; relationship to state formulas; generation of 
formulas from the type A models; as well as several comments about 
specific technical or factual aspects. Several commenters on the 1995 
proposed rule supported NOAA's decision to reserve the compensation 
formulas and strongly urged NOAA to withdraw the formulas from the 
final rule. Some commenters noted that the formulas were based on the 
earlier versions of the proposed type A models and, therefore, did not 
benefit from later 

[[Page 468]]
improvements and corrections made to those models. The commenters, 
however, suggested that the development of the compensation formula 
guidance document seems to confer a regulatory or legal status to a 
tool that should be limited to an informal aid to settlement 
discussions.
    Many commenters were concerned about the withdrawal or reservation 
of the compensation formulas. The commenters argued that, without these 
tools, trustees are unlikely to be able to fulfill their responsibility 
to make the environment and public whole. The commenters noted that the 
procedures for incident-specific assessments are too rigorous and 
costly for most small incidents so that these small incidents will not 
be adequately addressed, with the losses being absorbed by the public 
in the form of lost natural resources and services.
    Several commenters pointed out that, by promulgating a compensation 
formula, NOAA has the opportunity to provide an alternative to 
individual state models and promote some consistency in the assessment 
of damages resulting from smaller incidents. These commenters suggested 
that NOAA should either recalculate the compensation formulas with the 
most current version of the type A models and publish the formulas in 
an interim final rule, or include the original formulas, which could 
then be withdrawn when new formulas are published using the final type 
A models.
    On the issue of the use of the formulas in an actual assessment, 
some commenters specifically requested that NOAA establish that only 
the data inputs into the formulas are contestable, but that the 
algorithms of the formulas are not, similar to the standard for the 
Social Security disability regulations and Medicare regulations, where 
the diagnosis of a malady is contestable but the costs of treating the 
malady are not.
    Response: The proposed rule of 1995 reserved the compensation 
formula primarily due to revisions being made in the type A models on 
which the formulas were based. The final rule, however, does not 
incorporate compensation formulas as acceptable procedures per se; like 
any other proposed assessment procedures, compensation formulas must 
meet the criteria for acceptable procedures in Sec. 990.27 of the rule 
in order to be in accordance with the rule. NOAA still supports the 
concept of such simplified procedures as compensation formulas. NOAA 
developed a guidance document in 1995 on how one might recreate 
scenarios contained in the 1994 compensation formulas using the revised 
type A models. This guidance document is still available for use. When 
the type A models under development are promulgated by DOI as final 
rules, NOAA intends to generate the compensation formulas again.
Types of Assessment Procedures Available
    Comment: Several commenters argued that, because trustees would be 
allowed to use the four listed procedures alone or in any combination, 
trustees could recover damages that are not based on proof that the 
incident actually and proximately caused an actual natural resource 
injury, in conflict with OPA. Some commenters requested that the rule 
require that the procedures be appropriate for the types of incidents 
to which they will be applied. These commenters argued that the 
proposed procedures lack adequate rigor and that some of the procedures 
result in far more persuasive scientific evidence than other, abstract 
procedures.
    Several of these commenters argued that literature-based procedures 
are not defined and are not allowed under the CERCLA rule. The 
commenter stated that this procedure will allow an injury determination 
based solely on the reporting of an injury in the literature, without 
considering the conditions existing at the incident of concern, which 
are determinative of the effects. Other commenters argued that even 
laboratory studies alone are insufficient to demonstrate injury in the 
field and cannot take account of incident-specific compensatory 
mechanisms that may be at work in an actual population of biota. The 
commenters stated, therefore, that laboratory evidence must be combined 
with field verification that an injury has actually occurred.
    One commenter argued that the guidance provided in the rule on 
incident-specific procedures fails to meet basic requirements for proof 
of injury and causation. The commenter stated that the listed 
procedures can only, at best, suggest that injury may have occurred 
and, therefore, should not be allowed without field verification. Some 
commenters stated that the rule should provide explicit acceptance 
criteria for the use of procedures to ensure that actual injury and 
causation are established, based on scientifically valid and reliable 
evidence that the natural resource was in fact exposed, directly or 
indirectly, to the discharged oil (with an exception for substantial 
threat), that the natural resource has in fact experienced injury, and 
that exposure to oil is known to cause such injury in the field. These 
commenters note that the rule should provide that these criteria may be 
waived, in whole or in part, only with the concurrence of the 
responsible party.
    Another commenter noted that trustees have broad discretion under 
the rule to decline to use the DOI type A models, and thereby employ 
costly incident-specific studies and analyses whose costs could equal 
or exceed damages. The commenter recommended that the rule should 
require trustees to use the DOI type A models whenever the criteria for 
applying such procedures listed at 43 CFR 11.33 may be satisfied.
    Response: The rule adopts a general approach, that a range of 
assessment procedures, from simplified to more detailed, should be 
available to the trustees so that assessments can be appropriately 
tailored to incidents. Procedures for documenting and quantifying any 
particular injury must be selected by considering a variety of factors, 
all focused on making the determination of necessary restoration 
actions, while ensuring that assessments are technically valid and 
cost-effective. Procedures selected must be capable of determining 
injury pursuant to subpart E of the rule.
Scaling Procedures Listed in Appendix B of the Preamble
Habitat Equivalency Analysis
    Comment: Several commenters stated that HEA is a new and unproven 
procedure and has limited application for assessments. Some commenters 
argued that the procedure is inconsistent with economic theory since 
there is no direct relationship between the cost of replacement and the 
value of the natural resource. Commenters noted that HEA is based on 
many assumptions, such as: strict proportionality between unit of 
measure and value; substituting cost for value yields social gain; 
marginal natural resource values assumed constant over time; and 
service flows assumed constant and additive across time. The commenters 
noted that fulfilling the assumption of equal unit value is difficult 
and that the chosen metric may not reflect the unique characteristics 
that define the flow of services from the habitat. Commenters suggested 
that: HEA does not address fundamental assessment issues, such as: the 
concept of baseline, making it difficult to estimate percent of 
baseline services lost; in a complex release in which different natural 
resource services are injured to different extents, there is no obvious 
way short of economic valuation of the services to combine the 

[[Page 469]]
different levels of impairment into a single index which would allow 
all the impaired natural resources to be expressed in terms of a single 
unit; HEA is not useful for habitats that are not replaceable or 
reproducible; and that problems occur in incorporating unit values of 
indigenous habitat when restoration converts one habitat type to 
another. The commenters noted that it is problematic to use HEA to 
address lost use services, because changes that may occur in the unit 
value of currently offered services at the improved site need to be 
considered (e.g. effects of congestion). Also, the commenters noted 
that physical natural resource measures do not reflect quality, and 
thus do not reflect appropriate consumer surplus values. The commenters 
suggested that HEA does not measure benefits of compensatory 
replacement, increasing the chances of selecting restoration actions 
for which the costs are disproportionate to the value of the lost 
services. Also, other commenters noted that substitutes must be taken 
into account when measuring service reductions.
    Other commenters, however, supported the use of HEA, stating that 
the procedure is appropriate, cost-efficient, and effective. One 
commenter suggested that HEA not be limited in use to ecological 
services. The commenter stated that the description of the procedure 
should clarify that the metrics used are simply indicators of overall 
environmental quality, not complete measures of damages.
    Commenters suggested that, when using HEA, trustees should provide 
evidence that the unit values of the lost and replacement services are 
likely to be equivalent. The commenters stated that HEA should 
explicitly account for baseline service quantification issues. The 
commenters also argued that, because the components of HEA embody 
substantial uncertainty, the trustees should undertake explicit 
sensitivity analysis as part of HEA. The commenters suggested that HEA 
should focus on overall habitat or ecosystem services and not on 
individual organisms or specific ecosystem components not of 
significance to overall functioning of a system. Some commenters stated 
that HEA models should be used for biological/ecological services, not 
human use services. The commenters also argued that the habitat or 
species replacement cost procedure should be specifically excluded by 
the rule, except where natural resources and/or services are actually 
restored.
Travel Cost Method
    Comment: Some commenters suggested that trustees should use multi-
site random utility models instead of single-site analyses in 
conducting travel cost studies. The commenters noted that the travel 
cost studies should clearly show the linkage between the injuries and a 
reduction in services, as well as allowing for unrestricted 
substitution between recreation opportunities. Finally, the commenters 
suggested that the sample of users should be representative of the 
population being studied and the travel costs should be measured 
accurately to reflect the true costs to the recreators.
Factor Income Method
    Comment: Some commenters noted that the factor income method is an 
unreliable procedure for calculating values when natural resources vary 
in abundance over time. Other commenters stated that the factor income 
approach measures private economic losses, not losses to the public, 
and is inappropriate for use in assessments under OPA.
Hedonic Price Model
    Comment: Commenters suggested that the hedonic price model is 
generally inappropriate for assessments, due to major difficulties with 
potential double recovery for public and private losses. Other 
commenters suggested that the hedonic pricing method should not be used 
for incidents because of the brief and temporary nature of incidents 
and their impacts.
Market Models of Demand and Supply
    Comment: Several commenters stated that the market models of demand 
and supply are poorly specified in the rule, and that the rule should 
specify their use and some standards for that use.
Contingent Valuation
    Comment: Many of the commenters argued that CV should not be used 
in scaling. The commenters argued that CV has not been proven reliable, 
that it should not be used for transitory effects, and would generate 
overstated damage claims. Some of these commenters noted that CV is a 
highly controversial procedure, and has not survived rigorous peer 
review within an atmosphere of impartial scientific research.
    Some commenters argued that the inherent upward bias in CV would 
drive up the cost of restoration. However, other commenters noted that 
concerns about CV may be satisfied if it were used in ``both sides'' of 
the scaling calculation (i.e., to calculate both the losses from the 
injury and the gains from the replacement action). This way, the 
overall scale of the selected restoration alternative would likely not 
be affected.
    Many commenters stated that the rule should allow for the use of 
CV. Some commenters noted that CV is reliable if performed properly. 
These commenters noted that CV has already been endorsed by the Ohio 
court. Other commenters stated that test-retest CV experiments show 
that CV can be reliable. Several commenters pointed out that CV is 
essential for obtaining damages for lost passive values. Commenters 
also argued that CV should be used in scaling. The commenters argued 
that trustees should retain as broad a spectrum of valuation procedures 
as possible.
    One commenter indicated that survey procedures can elicit what the 
public needs for compensation by presenting different restoration 
choices and, therefore, gaining information on the scale of restoration 
actions needed. Another commenter suggested that mail-out surveys could 
be used to assess relative values, even though the Blue Ribbon Panel 
recommended in-person surveys for dollar determinations. Other 
commenters noted the particular utility of parts of CV, such as focus 
groups and survey procedures, in planning restoration.
    Many commenters argued that CV should not be included in the final 
rule; however, that if it is included, the rule should contain specific 
standards for its use, and it should not be accorded the rebuttable 
presumption. Several of the commenters stated that the rule should 
include the Blue Ribbon Panel's recommendations on study design, 
implementation and verification. Other commenters argued that damages 
considered by respondents in CV surveys should reflect only injuries 
that have been established in injury determination and quantification. 
These commenters also stated that CV scenarios should not be based on 
willingness to pay to prevent incidents. The commenters stated that the 
rule should provide for scope tests that: show substantial variation 
with the size of the commodity; focus only on natural resource damages; 
and exclude no respondents when carried out. The commenters also 
recommended that, for response rates: standards must be developed for 
calculating response rates and zero value should be attributed to 
survey nonrespondents as a conservative approach to handling 
nonresponse bias. The commenters suggested that CV should not be 
employed in cases where nonuse values 

[[Page 470]]
are expected to be small and that additivity tests should be required. 
The commenter also stated that a zero value should be attributed to 
individuals unaware of the injury before the survey was administered.
Conjoint Analysis
    Comment: Several commenters stated that conjoint analysis is an 
unproven procedure for natural resource applications, and is not 
reliable. Some of the commenters noted that conjoint analysis may be 
better than CV, but it raises similar difficulties. Some commenters 
noted the importance of realistic descriptions. The commenters also 
suggested the procedure is subject to the potential for protest 
valuation. The commenters suggested that, when using the procedure, 
trustees need to define a relevant population for sampling and for use 
in the scaling calculations. The commenters suggested that the results 
of the analysis can be very sensitive to design decisions, 
implementation, and interpretation decisions. The commenters pointed 
out that preferences are still expressed under hypothetical conditions. 
The commenters also suggested that respondents are unlikely to be 
familiar with the different attributes and levels of habitat services 
and are inexperienced in evaluating their relative merits, that some 
respondents may feel the answers are the purview of scientific experts 
rather than the general public, and that answers to early questions may 
be of lower quality due to learning effects during course of survey. 
The commenters stated that respondents may experience fatigue in 
evaluating numerous options. The commenters also stated that the 
experimental design can easily become burdensome. The commenters noted 
the problem of environmentally correlated attributes when using the 
procedure. The commenter noted that a component-wise valuation would be 
useful in calculating compensatory damages for partially injured 
natural resources. The commenters argued that, because of a close 
relationship between conjoint analysis and CV, all the issues raised by 
the NOAA Blue Ribbon Panel may need to be considered.
    However, some of these commenters noted that the procedure need not 
be limited to evaluating restoration alternatives that provide services 
of the same type and quality and subject to comparable scarcity and 
demand conditions as interim lost services. The commenters suggested 
that the procedure could reduce assessment costs, since a single 
conjoint questionnaire could evaluate the lost interim services, as 
well as the services from several different restoration alternatives.
    The commenters argued that conjoint analysis should not be used to 
estimate passive use values. The commenters also suggested that the 
population of survey respondents should be familiar with the goods 
involved, the survey should present the choices in terms that are 
concrete and realistic as possible, and the investigators should test 
for and present evidence that the results are not sensitive to 
extraneous design decisions. The commenters stated that the elicitation 
format should be designed to prevent interviewer bias and protest 
valuation. Some of these commenters stated that the experimental design 
should be consistent with accepted design standards. The commenter 
noted that the applications should include at least two different 
elicitation formats, and should perform sensitivity analysis on the 
effects of format choice. The commenters suggested that the attributes 
used in the survey should reflect: characteristics of the natural 
resource that are salient to the responder, temporal nature of lost 
services, and restoration alternatives that are technically feasible. 
The commenters also stated that the estimation of results should be 
consistent with utility theoretic principles. The commenter noted that 
the study should include a description of commodities that serve as 
substitutes for the lost and replacement services and that the relevant 
population to be sampled should be limited to users of the same type of 
services or to individuals sufficiently familiar with the natural 
resource to be able to form preferences for the relevant services. 
Commenters also stated that, if the conjoint analysis includes a price 
term, the following standards should be added: the conjoint analysis 
should not be used to measure nonuse values; trustees should 
empirically demonstrate that respondents have considered their budget 
constraints; the survey should use a payment vehicle that is 
appropriate for the type of value to be measured, is credible, 
incentive-compatible, avoids implied value cuing, and distributes 
burden of payment equitably; the survey should include design points 
that test for ``warm glow'' effects; trustees should demonstrate 
empirically that results are sensitive to scope of lost services; and 
trustees should determine the extent of the relevant population whose 
values are to be included and document and justify that determination.
Benefits Transfer
    Comment: Several commenters stated that the responsible party must 
be allowed to challenge the merits of valuation studies conducted by 
the trustees, rather than allowing the trustee to use values derived 
from some other study.
    Some commenters pointed out that the benefits transfer approach 
should not be accepted uncritically. Other commenters, however, argued 
for more flexibility in the use of the procedure.
    Several commenters stated that studies to be used in the benefits 
transfer approach should address natural resources and services similar 
to those injured by the incident, should be scientifically sound, 
should use reliable valuation procedures, and should not attempt to 
measure passive use values, since no reliable studies have been 
conducted to date.
    Response: NOAA believes that the standards set forth in Sec. 990.27 
are sufficient to allow trustees and responsible parties to determine 
the acceptability of a particular assessment procedure for a given 
incident. NOAA supports the use of all of the procedures discussed in 
Appendix B of the preamble as reliable and valid within the appropriate 
context and when performed in accordance with accepted professional 
practices. NOAA does not believe that the rule should set forth 
specific standards regarding the implementation of individual 
procedures, as it is not feasible to prescribe all valid uses of these 
procedures. The validity and reliability of procedures will depend on 
the circumstances of particular incidents. However, NOAA is considering 
the development of a separate guidance document addressing issues 
pertaining to the use of the procedures discussed above to scale 
restoration actions under the resource-to-resource or service-to-
service and valuation scaling approaches.
    Thus, NOAA believes that most of the comments received, which 
relate to potential problems with certain applications of these 
procedures, will be dealt with in the context of specific incidents. If 
procedures do not meet the standards listed in the rule they are not 
acceptable procedures to use pursuant to this rule. In addition, 
responsible parties have the option to request alternative procedures 
that meet the requirements of the rule, if they do not accept the 
trustees' judgment that a procedure is reliable for the circumstances 
of an incident.
    In response to some common concerns expressed relative to all 

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    procedures, NOAA offers the following: (1) Trustees must make a 
determination that procedures are reliable and valid for the 
circumstances of an incident; (2) there must be no double recovery of 
damages for the same injury or loss; (3) only public losses are 
recoverable by trustees under this rule; (4) primary restoration only 
recovers to baseline or comparable conditions or levels; and (5) the 
rule requires that the most cost-effective of equally appropriate 
procedures be used.

Subpart C--Definitions

Section 990.30--Definitions

General
    NOAA has revised certain definitions in the rule to ensure that 
these definitions conform with those that are explicitly defined in 
OPA.
    Comment: Many commenters made reference to various terms used in 
the proposed rule considered to be vague and likely to hamper 
expeditious restoration if they are not defined. These terms include: 
``observable;'' ``measurable;'' ``adverse;'' ``impairment;'' ``nexus;'' 
``reliable;'' ``valid;'' ``comparable;'' ``equivalent;'' ``same;'' 
``similar;'' ``scarcity;'' ``demand;'' ``scale;'' ``scaling;'' and 
``substantial threat.''
    Response: NOAA intends that the majority of these terms have their 
ordinary and customary meaning for purposes of this rule, but offers 
the following clarification. ``Reliable'' and ``valid'' refer to 
technical judgments by experts in a particular field that a procedure 
is consistent with best practices for the measure being investigated 
under the circumstances. ``Equivalent'' and ``comparable,'' as applied 
to acquiring natural resources or services other than those injured or 
lost, have the meaning used in the legislative history of OPA-natural 
resources that can enhance the recovery, productivity, and survival of 
the ecosystem affected by a discharge, preferably in proximity to the 
affected area. (H.R. (Conf.) Rep. No. 101-653, 101st Cong., 2d Sess. at 
109 (1990).) ``Demand'' has the meaning used in section 1013 of OPA (33 
U.S.C. 2712), encompassing presenting a claim for damages, based upon a 
plan for restoration of injured natural resources and services, to a 
responsible party for payment or implementation. ``Substantial threat'' 
will be determined by response entities on a case-by-case basis. 
Finally, ``scale'' and ``scaling'' refer to the size or extent, and 
procedures to determine appropriate size, of injuries or restoration 
actions.
    Comment: Many other commenters felt that NOAA should reinsert some 
of the terms, which were included in the January 1994 proposed rule but 
were left out in the current proposed rule, or add new terms. These 
terms include: ``damages;'' ``emergency restoration;'' ``interim 
restoration;'' ``ecological services or natural resources of special 
importance;'' ``passive use;'' ``commercial and productive services;'' 
``recreational services;'' ``services of natural resources of special 
significance'' ; and ``Regional Restoration Plan.''
    Response: NOAA has incorporated the statutory definition of 
``damages'' into the rule and has expanded the discussion of emergency 
restoration and Regional Restoration Plans in the preamble. NOAA has 
also expanded the discussion of ``services'' and ``value'' and does not 
believe that detailed discussion of various specific types of natural 
resource services is necessary.
Baseline
    Comment: A few commenters stated that the definition of 
``baseline'' is too restrictive, while others felt that the definition 
is too flexible. Commenters on both sides stated that NOAA should 
provide additional clarification. Some commenters argued that 
``baseline'' should not be so strictly applied as to prohibit use of 
information collected reliably but on an intermittent or short-term 
basis, if it provides a valuable comparison. These commenters suggested 
that trustees should be allowed to make comparisons against reference, 
historical, or control conditions. Another commenter stated that 
baseline data must provide a reliable estimate of variability in the 
natural resources and services of interest, and that historical or 
reference data may not be adequate. The commenter pointed out that, in 
the absence of reliable data on variability, there cannot be a 
``baseline,'' however, there can be a ``basepoint'' or ``reference 
point.''
    Response: Baseline under this rule is used to determine the extent 
of natural resource injury such that the appropriate scale of 
restoration actions can be determined. NOAA has simplified the 
definition of ``baseline'' to encompass the use of ``control,'' 
``historical'' and ``reference'' data. Trustees and responsible parties 
may use any data, so long as that data are reliable (e.g., 
appropriately collected) and relevant (e.g., collected sufficiently 
recently) to the incident such that a ``baseline'' can be determined. 
In terms of assessing baseline, procedures should be chosen to meet the 
standards contained in the rule, including expected costs and expected 
increases in the quality of the estimate of baseline conditions.
    Comment: One commenter suggested that NOAA change the definition of 
``baseline'' to read: ``Baseline means the condition of the natural 
resource and/or service that would exist had the incident not 
occurred.'' The commenter noted that, since baseline is not static over 
time, defining the term in past tense could be misleading or 
misinterpreted.
    Response: Natural resources or services may only be restored to 
their expected current condition or level had the incident not 
occurred. It may not be appropriate to interpret baseline solely with 
reference to the condition of the natural resources at the time of the 
incident for all injuries or losses, although that condition may well 
be valuable evidence of the baseline.
    Comment: Several commenters insisted that baseline, like injury and 
restoration, may only be assessed with respect to natural resource 
services, and more specifically, services used directly by the public, 
as opposed to the condition of the natural resources themselves.
    Response: OPA is very clear that injury and restoration apply to 
natural resources themselves. Further, restoration of injured natural 
resources is one element of a claim for damages, distinct from the 
diminution in value of injured natural resources suffered by the public 
from the time of an injury until recovery.
Contributing Factor
    Comment: One commenter expressed concern that the term 
``contributing factor,'' present in the 1994 proposed rule, is absent 
in the reproposed rule. Other commenters supported omission of a 
discussion of this concept from the rule, although these commenters 
differed in their view as to whether a more or a less rigorous standard 
should be applied by reviewing courts.
    Response: Under the new structure of the rule, NOAA does not 
believe that a discussion of this concept is needed.
Cost-effective
    Comment: A number of commenters emphasized that Congress intended 
that assessments be cost-effective, but suggested there are no 
meaningful restraints on the number, extent, or cost of damage 
assessment activities that trustees may implement under the rule.
    Response: NOAA agrees that assessments, as well as restoration, 
must be cost-effective, and believes the definition indicates that the 
least costly of several procedures accomplishing the same goals with 
outcomes of similar 

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quality must be selected by trustees. NOAA suggests that the extent of 
assessment actions and costs are appropriately limited under both OPA 
and this rule through the reasonable cost requirement, the standards 
for acceptable procedures in Sec. 990.27 of the rule, and the pervasive 
requirement to focus activities on determining needed restoration.
Discharge
    Comment: Some commenters requested clarification of the definition 
of ``discharge.''
    Response: In response to comments, NOAA has replaced the previous 
definition of ``discharge'' with the statutory definition.
Exposure
    Comment: One commenter suggested that exposure should be defined to 
mean the presence of any detectable amount of the discharged oil, 
including oil sheen. Several other commenters recommended that exposure 
be defined as in 43 CFR Sec. 11.14(q), when natural resources ``may 
be'' in contact with oil, rather than requiring actual evidence of 
exposure.
    Response: For the purposes of this rule, exposure refers to direct 
or indirect contact with oil. A sheen does indicate that the surface 
water natural resource has been exposed, which may affect services 
provided, such as boating.
Incident
    Comment: Some commenters suggested that the definition of 
``incident'' should be replaced with the statutory definition.
    Response: NOAA has replaced the previous definition of ``incident'' 
with the statutory definition.
Injury
    Comment: A number of commenters noted that the definition of injury 
is an improvement from that of the January 1994 proposed rule and that 
of the CERCLA rule's definition, in that it is simpler, easier to 
apply, and includes adverse impacts that might be excluded under the 
CERCLA rule delimiting specific categories of injury.
    In contrast, other commenters argued that the definition of injury 
is insufficient because it applies to natural resources themselves, 
rather than strictly to services provided by natural resources, and 
does not incorporate the concept of baseline. Some of these commenters 
suggested that the definition allows the mere presence of a contaminant 
in water to be an injury. These commenters suggested that NOAA redefine 
injury as ``(a) an observable or measurable adverse change in a natural 
resource that produces a quantifiable reduction in the level of 
services provided by that natural resource, or (b) an observable or 
measurable impairment of a natural resource service,'' further 
specifying that ``such change and/or impairment must be measured 
relative to baseline.''
    According to these commenters, although the physical, chemical, and 
biological characteristics of a natural resource contribute to the type 
and level of services it offers, the public does not value those 
characteristics in and of themselves, it values only the services the 
natural resource provides. Thus, the commenters argued that, if a 
change in a natural resource does not affect such services, it cannot 
constitute a compensable injury. The commenters stated that, to the 
extent that trustees obtain compensation for harm to the environment as 
something separate from the services provided to the public, society 
would be overcompensated for its loss. Further, these commenters 
suggested that compensable natural resource service losses be 
restricted to those of ``measurable ecological significance'' (effects 
are manifested at the population, community or ecosystem level) and/or 
those used directly by the public.
    In addition, the commenters suggested that failure to include 
reference to baseline in the definition of injury will allow trustees 
to measure adverse changes relative to pristine, pre-industrial levels.
    Response: NOAA believes that OPA clearly intends that injuries to 
natural resources themselves form the primary focus of trustees' 
restoration actions. This intent is evident in the definition of 
liability under the statute (``injury to, destruction of, loss of, or 
loss of use of natural resources''), as well as the measure of damages 
under the statute which provides an explicit distinction between 
liability for injuries to natural resources (costs to restore) and 
liability for interim lost services (diminution in value). Adoption of 
the commenters' approach to assessment and restoration would severely 
undercompensate the public for injuries suffered as a result of an 
incident and would result in a needless sacrifice of natural resources 
that could otherwise be cost-effectively restored. The only way to 
ensure that all valuable present and future services of natural 
resources are available to the public is to restore the injured natural 
resources to their pre-incident condition. The rule requires trustees 
to quantify injuries relative to baseline, which is defined as the 
without-the-incident condition of the natural resources. This 
requirement clearly prevents assumption of a ``pre-industrial'' 
baseline. NOAA does not believe that the concept of baseline has useful 
meaning in defining injury, as opposed to quantifying injury. Finally, 
because the rule requires a measurable or observable adverse change in 
a natural resource or service be documented in addition to exposure, 
the ``mere presence'' of oil will not constitute an injury under the 
rule.
    Comment: One commenter suggested that an existing state regulatory 
definition of injury be adopted to allow for consistent natural 
resource damage assessment within the state.
    Response: NOAA believes that the definition of injury in the rule 
is consistent with the intent of OPA to facilitate expeditious, 
necessary, and cost-effective restoration.
    Comment: Some commenters suggested the terms ``measurable'' and 
``observable'' inappropriately allow injury to be determined using 
simplified procedures, notably the type A model or compensation 
formulas, which assume that injury always occurs from the presence of 
oil in the environment. Other commenters suggested that NOAA clarify 
that models that predict expected injuries based on past data are 
encompassed within the definition of injury.
    Response: The commenters are referred to the procedures for 
determining injury in Sec. 900.51 of the rule. The definition of injury 
must be met, and exposure and a pathway must be documented to determine 
injury. Any procedure used to document injury, exposure, and pathway 
must meet the standards enumerated in new Sec. 990.27 of the rule, 
which seeks to ensure that the most technically appropriate procedure 
for the circumstances of an incident and an injury be used to make 
injury determinations, including those for exposure and pathway.
    Comment: One commenter suggested that the injury definition be 
broadened to include habitat degradation.
    Response: NOAA believes that OPA and the rule do apply to habitat 
degradation caused by incidents, so long as the requirements of the 
rule for determining injury are met.
Oil
    Comment: A few commenters agreed that animal fats and vegetable 
oils are covered by OPA's definition of oil, but asserted that their 
limited capacity to cause harm in the environment should exempt them 
from coverage by this rule, or provide for a separate assessment 
process specifically tailored to these 

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different products. The commenters argued that Executive Order No. 
12,866 on Regulatory Planning and Review requires that differential 
treatment be afforded these products. Other commenters similarly 
requested clarification as to whether natural or synthetic gas 
products, or coal tar and other coal-derived chemicals are classified 
as oil for purposes of the rule.
    Response: NOAA notes that the commenters do recognize the capacity 
for animal fats and vegetable oils to cause natural resource injury if 
they are released in significant quantities. These products are 
included in the definition of oil under the NCP. NOAA believes that the 
rule's Preassessment Phase requirement that trustees assess the 
likelihood of natural resource injuries resulting from a discharge, 
along with the requirement that injury actually be determined prior to 
quantification, will provide appropriate safeguards for nonharmful 
products discharged into the environment. The preamble advises trustees 
that the nature of the product discharged (e.g., differences in 
physical, chemical, biological, and other properties, and environmental 
effects) should be evaluated in the trustee's Preassessment Phase. As 
to synthetic gas and coal-derived chemicals, substances that have been 
classified as hazardous substances are clearly not covered by this 
rule, but by the CERCLA rule.
Pathway
    Comment: One commenter stated that the definition of ``pathway'' is 
somewhat vague in the use of the term ``nexus.''
    Response: NOAA has replaced the term ``nexus'' with ``link,'' to 
refer to the required connection between an incident and a natural 
resource or service of concern.
Person
    Comment: Several commenters suggested that the definition of 
``person'' should be modified to include agencies of the federal 
government.
    Response: NOAA notes that the rule definition is consistent with 
the statutory definition.
Reasonable Assessment Costs
    Comment: One commenter noted that the costs of conducting 
assessments represent unanticipated financial burdens on trustee 
agencies, so the rule should include provisions that require 
responsible parties to reimburse trustees for all legitimate expenses 
associated with incidents covered by the rule. Several commenters 
suggested that oversight costs for responsible party participation and/
or implementation of any assessment activities should be explicitly 
recoverable. While several commenters supported inclusion of 
administrative, legal, and enforcement costs in the definition, others 
strongly opposed this as outside NOAA's statutory authority. These 
commenters pointed to rulings prohibiting recovery of court costs in 
CERCLA cost recovery actions, and suggested that damage assessment 
costs necessarily cease at the point monetary damages are determined 
for a claim. Some commenters stated that duplicate assessment costs 
incurred as a result of trustees' failure to coordinate their efforts 
should be explicitly excluded from recovery.
    Response: OPA defines damages as the costs of restoration, plus the 
reasonable cost of assessing those damages. Thus, damages encompasses 
whatever actions are reasonable and lawful under OPA to implement 
restoration, clearly including administrative, legal, and enforcement 
costs, as well as monitoring and oversight costs. OPA's requirement for 
public involvement in developing a restoration plan to form the basis 
of a claim for damages presented to a responsible party likewise makes 
the reasonable costs of facilitating public participation recoverable. 
OPA prohibits double recovery of damages, including assessment costs. 
However, NOAA does not believe that an inference of double assessment 
costs should be drawn solely from the fact that two or more trustees 
are assessing damages independently. The reasonableness of damage 
assessment costs must be evaluated relative to the specific injury for 
which a restoration action is being considered.
    Comment: With respect to incremental costs and benefits, one 
commenter suggested that the phrase ``reasonably related'' is vague and 
subjective and should be modified. Another commenter stated that 
reasonable costs should include ``expected'' before ``incremental 
cost'' and ``incremental increase.'' Some commenters interpreted the 
proposed rule to require a strict cost-benefit analysis in selecting 
any assessment procedures. One commenter suggested that the definition 
of ``reasonable assessment costs'' should not use word ``reasonably'' 
to define ``reasonable.'' One commenter suggested that the reasonable 
cost definition should return to the 1994 proposed language of 
``reasonable under the circumstances, but only if in accordance with 
the rule.''
    Response: NOAA agrees that the 1995 proposed definition of 
reasonable costs was somewhat vague. NOAA also believes that the 
element of the reasonable cost definition in the proposed rule, 
requiring incremental costs and benefits to be evaluated, is 
duplicative of the analysis trustees must make in selecting all 
assessment procedures used under this rule, as provided in the new 
Sec. 990.27. Thus, this element has been deleted from the definition. 
The new provision in Sec. 990.27 of the rule does not require a strict 
cost-benefit analysis of assessment procedures, as this would result in 
unreasonable assessment costs. Rather the costs and benefits analysis 
is intended to constrain the scope and scale of assessments to fit the 
circumstances of individual incidents and injuries.
    Comment: Several commenters suggested that assessment costs should 
be strictly proportional to damages, with some suggesting that costs 
must not exceed damages to be reasonable, consistent with the CERCLA 
rule. Another commenter stated that assessment costs should be 
proportionate to the value of the restoration action, rather than the 
cost of that action. Other commenters suggested that reasonable costs 
must be related to the severity of an incident. Several commenters were 
troubled by allowing recovery of assessment costs where restoration is 
not pursued.
    Response: NOAA agrees that trustees should determine an appropriate 
relationship between assessment costs and the costs of restoration and 
compensation sought as a result of the incident. However, NOAA does not 
believe that a strict proportion, or a cost ceiling equal to total 
damages or total value, is appropriate for all cases. There may be 
instances where assessment costs to determine appropriate restoration 
are necessarily high due to unique sampling or testing requirements, 
yet high costs would be justifiable given the importance of undertaking 
restoration--for instance, where an endangered species population has 
been injured. The rule places strict limits on instances where trustees 
can recover assessment costs if they do not pursue restoration. 
Trustees must have made, in good faith, all determinations required in 
the rule and proceeded in the assessment with a reasonable expectation 
that injury had occurred and restoration was needed.
    Comment: One commenter stated that reasonable assessment costs 
should only include those costs associated with an assessment made at 
the site of the incident, not any assessment costs incurred at regional 
restoration sites. Other commenters argued that trustee costs of NEPA 
compliance and production of an administrative record 

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should not be recoverable, pointing to the CERCLA rule's omission of 
these procedural requirements.
    Response: Reasonable assessment costs include costs associated with 
evaluating restoration alternatives and selecting an equally preferred 
approach for an incident. Costs associated with identifying and 
evaluating existing regional restoration plans or other existing 
proposed restoration projects among a range of alternatives to restore 
injuries resulting from an incident are reasonable costs under the 
rule. In addition, NOAA believes that maintenance of an administrative 
record will be a cost-effective mechanism of keeping the public and 
responsible parties informed of the progress and results of an 
assessment, and judges these costs to be reasonable costs of 
assessment. Similarly, because NEPA compliance is an existing statutory 
requirement applicable to restoration actions by federal trustees, 
these compliance costs are recoverable, just as any permitting 
requirements would be recoverable in implementing restoration under 
OPA.
Recovery
    Comment: Several commenters argued that a focus on recovery of 
natural resources themselves, as opposed to services is counter to 
OPA's mandate. Other commenters suggested that baseline be explicitly 
incorporated within the definition of recovery, to ensure that the 
proper focus is the ``without an incident'' condition.
    Response: As discussed under the definition of injury above, the 
condition of natural resources themselves may lawfully be assessed in 
identifying and quantifying injuries. NOAA does not believe that 
baseline needs to be redefined in the definition of recovery, but 
agrees that recovery refers to the condition the natural resources and 
services would have been had the incident not occurred.
Responsible Party
    Comment: Some commenters requested revisions to the 1994 proposal's 
definition of ``responsible party'' to conform with the statutory 
definition.
    Response: NOAA has replaced the definition of responsible party 
with the statutory definition.
Restoration
    Comment: Most commenters were satisfied with the definition of 
restoration as encompassing all authorized actions under the statute 
(restoration, rehabilitation, replacement, acquisition of the 
equivalent), without setting a preference for any of the statutory 
alternatives. Other commenters, however, felt that the rule limited 
trustee discretion in requiring consideration of restoration measures 
over acquisition measures.
    Response: The rule does not require that restoration, 
rehabilitation, or replacement be considered before acquisition of 
equivalent natural resources. Acquisition of the equivalent is a viable 
option and includes actions that would enhance the recovery, 
productivity, and survival of the ecosystem affected by a discharge, 
preferably in proximity to the affected area.
    Comment: Several commenters suggested that the distinction between 
``primary'' and ``compensatory'' restoration needs clarification. Some 
of the commenters suggested that primary restoration should include any 
action, whether on-site, off-site, in-kind, or out-of-kind, that will 
return natural resource and/or service levels back to baseline 
condition. These commenters supported defining compensatory restoration 
as actions to make the environment and public whole for interim losses 
resulting from the incident.
    Some commenters stated that the proposed rule could be interpreted 
to limit primary restoration to actions focused on the injured natural 
resources themselves. These commenters stated that relegating 
replacement or acquisition alternatives that use other natural 
resources solely to compensatory restoration is inconsistent with 
section 1006(d)(1)(A) of OPA (33 U.S.C. 2706(d)(1)(A)), which 
prescribes replacement and acquisition of the equivalent as measures of 
``primary restoration.''
    Response: NOAA intends that primary restoration actions encompass 
all actions authorized under section 1006(d)(1)(A) of OPA (33 U.S.C. 
2706(d)(1)(A)), while compensatory restoration includes actions to 
compensate for the diminution in value of injured natural resources or 
services pending their recovery (section 1006(d)(1)(B) of OPA (33 
U.S.C. 2706(d)(1)(B)). NOAA does not believe that OPA contains any 
explicit preference for a specific type of restoration, or whether it 
be accomplished on or off-site and has revised the rule. Because 
damages recovered for diminution in value must be spent solely to 
restore, rehabilitate, replace, or acquire the equivalent of the 
interim natural resource injuries, trustees should assess damages for 
diminution in value in terms of these types of actions. NOAA has 
amended the rule to reflect these considerations.
    Comment: Several commenters asserted that NOAA has improperly 
broadened potential recovery for diminution in value by dressing it up 
as compensatory restoration, and defining these actions as those to 
make the environment whole, in addition to making the public whole. 
These commenters argued that compensatory restoration may only replace 
interim lost service flows to the public.
    Response: The diminution in value of natural resources may be 
measured by a number of metrics, such as dollars or quanta of services 
lost. If no restoration actions are taken, or recovery with active 
restoration may still require a number of years, many types of services 
may be lost or diminished in the interim period, including ecological 
services, and OPA does not intend that only certain types of lost 
services be compensated. Diminution in value under the rule still 
appropriately encompasses interim lost services pending recovery and 
has not been broadened. The rule requires that trustees determine 
restoration actions to compensate for these losses rather than monetize 
the claim.
    Comment: A number of commenters asked for or offered additional 
clarification on the distinction between ``natural recovery'' and ``no 
action.'' Several commenters requested that NOAA delete the no action 
alternative. Several commenters strongly disagreed with classifying 
natural recovery as restoration, while several others appreciated the 
explicit requirement to consider natural recovery, which they expect 
will often provide the most cost-effective mechanism to return natural 
resources to baseline. One of the commenters noted that there should be 
a requirement that restoration only be undertaken if it significantly 
accelerates natural recovery. Finally, some commenters remarked on the 
difficulty and expense likely to be incurred to estimate the time 
required for natural recovery.
    Response: NOAA has deleted the ``no action'' alternative from the 
final rule, as it was confusing in the context of evaluating 
restoration alternatives at the stage that injury and the need for 
restoration have been determined. The final rule will continue to 
require that natural recovery be evaluated as one of a range of primary 
restoration actions--actions intended to return injured natural 
resources and services to baseline conditions. The rule already 
requires trustees to assess the relative capability of each restoration 
alternative to accelerate recovery, so it is not necessary to add a 
requirement that a restoration alternative significantly 

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accelerate recovery relative to natural recovery. Finally, the rule 
requires that procedures to estimate natural recovery be evaluated 
according to the standards governing acceptability of any other 
assessment procedure, including the cost of alternative procedures 
relative to expected informational benefits for the circumstances of a 
particular incident. Thus, the rule allows that natural recovery may be 
estimated qualitatively or quantitatively. The rule also provides a 
number of factors as guidance in estimating natural recovery timelines.
Services
    Comment: Many comments on the definition of services discussed the 
distinctions between ``ecological'' and ``human'' services. One 
commenter stated that the definition appropriately encompasses both 
concepts, but that the term ``public services'' is overly restrictive. 
By using the term ``public'' services, the commenter suggested that 
NOAA may inadvertently preclude recovery for lost services that benefit 
many individuals but not the general public. To address this problem, 
the commenter urged NOAA to use the term ``human services'' rather than 
``public services'' throughout its final rule.
    A number of commenters argued that the proposed definition of 
compensable services is faulty in including functions performed by one 
natural resource for another. These commenters suggested that 
ecological services are only compensable to the extent they provide 
services of value to the public, because ecosystem functions do not 
have economic value unless they help to support service flows to 
people.
    These commenters further suggested that the proposed definition 
exceeds the scope of NOAA's authority since OPA does not authorize 
trustees to assess damages on behalf of non-human things or beings. The 
commenters noted that the measure of damages under OPA refers to losses 
to the public, since it is only people who have values for natural 
resource services. The commenters pointed out that the legislative 
history of OPA also makes it clear that ``diminution in value'' refers 
to the lost use value standard for measuring natural resource damages 
used in the Ohio decision (880 F.2d at 462-480)(H.R. (Conf.) Rep. No. 
101-653, 101st Cong., 2d Sess. 108 (1990)), which made it apparent that 
the lost use value standard related to lost values to the public. 
Further, the commenters stated that the CERCLA rule on remand from Ohio 
specifies that compensable value means the value of ``services lost to 
the public.'' 43 CFR 11.80(b).
    Response: Humans and other species in the ecosystem are 
inextricably linked; consequently, ecological services are generally 
linked to human services. Trustees may not double-count public losses 
attributable to injured natural resources by seeking compensation both 
for human losses and for the ecological services that will return the 
same direct human services. However, in some cases it may be much more 
cost-effective to focus on the ecological services that occur on-site 
rather than the human services that occur off-site as a result of these 
ecological interactions. For example, a wetland habitat may provide on-
site ecological services such as faunal food and shelter, sediment 
stabilization, nutrient cycling, and primary productivity. Off-site 
human services may include commercial and recreational fishing, bird 
watching along the flyway, water quality improvements for drinking 
water supply or the aesthetics of nearby residential property, and 
storm protection for on-shore properties due to the creation of wave 
breaks.
     Consequently, the inclusion of ecosystem services is consistent 
with OPA. However, trustees must ensure that they do not seek 
compensation both for human losses and for the ecological services that 
will return the same direct human services, which would create a double 
recovery.
    Comment: Many commenters asserted that the concept of baseline 
should be built into the definition of compensable services. These 
commenters suggested that baseline measures of use services should 
incorporate relevant site-specific factors that influence demand for 
the services and should reflect established committed uses rather than 
speculative levels of use. The commenters stated that NOAA should 
include the CERCLA's rule definition and requirement of ``committed 
use'' in its rule, which is defined as either ``a current public use; 
or a planned public use for which there is a documented legal, 
administrative, budgetary, or financial commitment before the discharge 
of oil or release of a hazardous substance'' (43 CFR 11.14).
    Response: NOAA does not believe that baseline must be incorporated 
into the definition of services, given the requirement to quantify 
services injuries relative to baseline. NOAA agrees with the commenters 
that speculative future uses of natural resources are not compensable 
under OPA and that this limitation is inherent in the requirement that 
trustees determine the existence of injury or service injuries before 
quantifying restoration requirements.
    Comment: Several commenters suggested that the definition of 
``services'' should explicitly include both ``direct and passive 
uses.'' Some of these commenters also requested that NOAA include 
examples of passive services in the definition.
    Response: NOAA agrees that compensable services include both direct 
and passive uses, and that the rule provides for recovery of both.
Value
    Comment: A number of commenters supported the definition of 
``value'' as proposed. However, other commenters suggested that this 
definition is vague, and needs to be refined. One commenter suggested 
that the definition of ``total values'' in the rule and the discussion 
in the preamble are not consistent. Another commenter did not 
understand what the ``units'' represent in the definition, with another 
commenter suggesting that OPA restricts compensation to dollars. A few 
commenters indicated that NOAA should replace the word ``good'' with 
goods or services, as people value both goods and services. One 
commenter suggested that NOAA change the last sentence to read: ``The 
total value of a natural resource and/or service is equal to the sum of 
all values held by an individual across all individuals.''
    Finally, a few commenters argued that passive values should be 
excluded because they cannot be reliably measured. The commenters 
suggested that NOAA's silence results in an equal treatment of use and 
nonuse values; implicitly allowing for the calculation of nonuse values 
using contingent valuation without any specific standards.
    Response: NOAA does not believe that OPA restricts measuring lost 
value solely in terms of dollars, and has amended the rule to allow for 
computation in terms of goods, services, or money.

Subpart D--Preassessment Phase

Section 990.40--Purpose

    Comment: Several commenters felt that the proposed new language on 
preassessment is a significant improvement over the January 1994 
proposal. These commenters stated that the new Preassessment Phase 
achieves the necessary goals of this early stage of an assessment, 
which is to cost-effectively and timely determine whether injuries to 
natural resources have likely occurred such that further trustee action 
on behalf of the public is warranted.
    A few general concerns, however, were expressed by one commenter. 
This 

[[Page 476]]
commenter was under the impression that preassessment activities 
require identification (as reflected by the qualifier ``observable'') 
and quantification (as reflected by the qualifier ``measurable'') of 
injury. The commenter noted that observing adverse changes is typically 
less difficult than measuring actual or approximate losses, suggesting 
that this portion of the rule not be so narrow as to require precise 
measurement of degradation in situations where a loss has been 
observed. To facilitate more effective mitigative strategies, the 
commenter suggested preassessment activities be segregated into 
analyses of impacts to aquatic organisms and habitat.
    The same commenter further stated that the costs of conducting 
preassessment activities may represent unanticipated financial burdens 
on trustees. The commenter suggested the rule include provisions that 
require responsible parties to reimburse trustees for all legitimate 
expenses associated with incidents covered by the rule.
    Response: The purpose of Preassessment Phase activities is to 
determine whether it is legitimate for trustees to take action under 
this rule for purposes of OPA, and whether it is reasonable to do so, 
given their responsibilities to act on behalf of the public to see that 
injured natural resources and services are restored. At this stage of 
an assessment, actual determination and quantification of injury are 
not required. Costs should not necessarily be great at this phase of an 
assessment, depending on the circumstances of an incident and resulting 
injuries, and trustees are encouraged to contain costs by limiting the 
amount of data collection and analysis conducted, and to coordinate 
early with response agencies and responsible parties to prevent 
duplicative efforts.

Section 990.41--Determination of Jurisdiction

    Comment: One commenter stated that the notification language is too 
weak and that the OSC or lead response agency should be required to 
notify natural resource trustees. This commenter indicated that the OSC 
or lead response agency should not only consult with the affected 
trustees concerning removal actions, but should also consult with 
affected trustees concerning protection strategies.
    Response: NOAA notes that coordination between the OSC and trustees 
is covered in section 1011 of OPA (33 U.S.C. 2711) and in the NCP. The 
duties of the OSC, including coordination, are covered by other 
rulemakings, not this rule.
Excluded Discharges
    Comment: One commenter suggested that the language in this part 
should be modified to exclude only those discharges that are in 
compliance with a permit under federal, state or local law. The 
commenter pointed out that discharges that exceed permitted limits 
should not receive an exemption from natural resource damages liability 
simply because they emanate from a permitted discharge point.
    Another commenter remarked that tribal permits should also be 
included within this language.
    Response: The language of the rule copies the statutory language on 
excluded discharges, including the reference to permits under local 
law. NOAA interprets the phrase ``permitted by a permit'' to mean that 
only discharges that are authorized by, and thus in compliance with, 
the terms of a permit are eligible for the exclusion.
    Comment: One commenter noted that public vessels are used as an 
example of exclusion from liability and suggested it would be helpful 
for the preamble to reiterate that exclusion in addition to the 
permitted discharge exclusion. Another commenter questioned why onshore 
facilities subject to the Trans-Alaska Pipeline Authority Act (TAAPA), 
43 U.S.C. 1651 et seq., are exempt from liability.
    Response: NOAA has amended the preamble to include the citation to 
the OPA sections providing for the excluded discharges and notes that 
the TAAPA facility exclusion is provided by OPA.
    Comment: Another commenter noted that the Oil Spill Liability Trust 
Fund cannot be accessed to initiate assessments for incidents 
originating from a federal facility. The commenter asked what 
mechanisms exist that would allow for restoration given this situation.
    Response: NOAA notes that trustee agencies may be called upon to 
carry out restoration out of agency budgets where there are no other 
funding sources available.
Injured Natural Resources or Services
    Comment: Several commenters stated that the rule necessitates 
identification and notification of all trustees in order to determine 
whose trust natural resources may be injured, which is crucial to 
coordination among trustees.
    One commenter indicated that the rule should clearly state that all 
physical, on-site trustee activities, including data collection and 
analysis, occurring concurrently with removal efforts are subject to 
the approval and overall direction of the OSC. The commenter stated 
that the rule should also require effective coordination between 
natural resource trustees and participants in the incident response, 
consistent with the NCP (40 C.F.R. Sec. 300.305(e), 50 FR 47384, 47445 
(Sept. 15, 1994)).
    Response: NOAA agrees that coordination among all affected trustees 
is extremely important, especially during Preassessment Phase 
activities. The requirements for coordination are enumerated in 
Sec. 900.14 of the rule rather than in individual subparts, to 
emphasize that the duty to coordinate is applicable to the entire 
assessment. NOAA does not believe that an explicit requirement to 
identify and contact other trustees should be included in the rule. 
Trustees need maximum flexibility during the often hectic response 
phase to ensure that, among other things, ephemeral data is collected. 
NOAA notes that identification and contact among trustees virtually 
always occurs during the response phase, if for no other reason than 
requests for initiation funding from the Oil Spill Liability Trust Fund 
require such coordination.
    The requirement to coordinate with the OSC is also included in 
Sec. 990.14. Although NOAA agrees and the rule reflects that trustees 
activities may not interfere with response activities, NOAA disagrees 
that any requirement exists, nor should it exist, that the OSC must 
approve all trustee activities. Many of these activities are far 
outside the realm of authority or interest of the OSCs.
Decision to Proceed
    Comment: One commenter indicated that injury determination should 
be a precondition to trustee jurisdiction. The commenter pointed out 
that restoration under OPA is, by definition, wholly retrospective, and 
does not extend to measures designed to prevent or contain ``threatened 
discharges.'' The commenter stated that the injury determination in 
Sec. 990.51 should be satisfied in the Preassessment Phase before the 
restoration planning process begins.
    Response: NOAA disagrees with the comment. Injury determination is 
properly part of the formal assessment, and is not required during the 
Preassessment Phase. Determination of injury at this point may result 
in unreasonable assessment costs without some sort of screening process 
provided in this phase. 

[[Page 477]]


Section 990.42--Determination to Conduct Restoration Planning.

Considerations
    Comment: One commenter suggested that the conditions in this part 
are subjective and require more specific guidance. However, another 
commenter was concerned about being required to complete some of the 
determinations at such an early stage in the process when it may be 
particularly difficult to determine whether response actions will 
adequately address injuries.
    Response: There is necessarily a subjective component in trustees 
applying their best professional judgment to existing or readily 
available information in order to make the determinations in this 
section. NOAA believes that this balance of judgment and data analysis 
is most appropriate and cost-effective at this stage of an incident.
    Comment: A number of commenters indicated that the responsible 
parties should be included (and officially notified) in the 
determination to conduct restoration planning. The commenters 
questioned whether the administrative record will be open during this 
stage, and whether all data used to make a determination to conduct 
restoration planning will be made available to responsible parties.
    Response: The rule provides that identified responsible parties be 
notified and invited to participate in the assessment as soon as 
practicable, but no later than the point that trustees decide to 
conduct restoration planning and prepare a public notice to that 
effect. Participating responsible parties will be provided documents 
detailing the determinations that are required under the rule. The rule 
also indicates that the administrative record should be opened 
concurrently with issuing the Notice of Intent to Conduct Restoration 
Planning. The record is available to responsible parties as well as any 
other member of the public.
    Comment: Another commenter noted that the need for restoration is 
based on an evaluation of whether response actions will alleviate the 
residual injuries. The commenter suggested that the rule should clarify 
that both residual injuries and direct, initial injuries are to be 
considered at this point.
    Another commenter suggested that it may also be difficult to 
determine whether feasible restoration alternatives exist when the 
trustees do not yet know the full extent of the injuries. A number of 
commenters were concerned that the notion of ``feasible'' might be 
narrowly interpreted to mean ``on-site/in-kind,'' in which case 
restoration may not be possible. One of these commenters suggested that 
the rule allow both primary and/or compensatory restoration actions 
that might be considered.
    Response: NOAA agrees that all injuries occurring from the time of 
the initial or threatened discharge should be considered in evaluating 
the efficacy of response actions in alleviating the need for 
restoration. Response actions may be effective in restoring some 
injuries caused by the initial incident, for instance by removing oil 
from a sandy beach so that the beach can be reopened. While this 
response action may restore a natural resource service to baseline, it 
would not compensate for the interim lost use that occurred during the 
closure period. The rule has also been amended to indicate that 
feasible primary or compensatory restoration actions should be assessed 
in making the determination to proceed with restoration planning.
Decision to Proceed
    Comment: Several commenters supported the provision authorizing 
trustees to recover reasonable assessment costs incurred up to the 
point that preassessment determinations are made. However, one 
commenter notes that it is thus incumbent upon the trustees to limit 
their assessment costs. The commenter suggested that prompt decisions 
by the trustees on jurisdiction and the need for restoration will 
ensure that costs are contained, and eliminate the possibility for 
responsible parties to delay completion of response measures until such 
trustee determinations are made. The commenter thus recommended 
trustees be required to make both determinations within ninety (90) 
days of an incident.
    Response: The rule provides that all reasonable costs of assessment 
are recoverable, including those costs incurred up to the point 
trustees decide not to pursue restoration. Costs must meet the rule's 
definition of ``reasonable assessment costs'' to be recoverable. NOAA 
disagrees with the need for or utility of a ninety-day limit on making 
the determination to conduct restoration planning, and doubts that fear 
of this determination will cause responsible parties to drag out costly 
response activities. NOAA believes that any time limit would be 
arbitrary, given the great variability in the progress and timing of 
cleanup activities from incident to incident.

Section 990.43--Data Collection

    Comment: One commenter questioned how the determinations in 
Sec. 990.42 are to be made based upon ``readily available 
information.'' The commenter suggested this limitation is acceptable if 
it includes all the sources listed in this section. One commenter also 
suggested the term ``limited'' in the proposed rule may imply that if 
trustees went too far in data collection, they might not be entitled to 
the rebuttable presumption and/or costs for that data collection 
because they might not be considered ``reasonable.'' A few commenters 
stated that, so long as the data to be collected is reasonably related 
to the assessment, no other restrictions should be placed on its 
collection. In contrast, one commenter noted that there are no controls 
specified in this part over the expense or timing of preassessment data 
collection activities.
    Response: The rule has been amended to specify that data collection 
and analysis that are reasonably related to the purposes of the 
Preassessment Phase may be conducted in accordance with the rule. The 
rule provides guidance on the types of information that may be useful 
in making Preassessment Phase determinations. The term ``limited'' has 
been removed from the rule, but was originally intended to suggest that 
data collection should be related to the determinations required to be 
made at this stage, and thus to the nature of the incident and its 
injuries, and the relevance and utility of available information.
    Comment: Another commenter suggested that trustees should be able 
to use models or extrapolations from scientific literature when it is 
more appropriate and cost effective than gathering site-specific data.
    Response: NOAA notes that the type of analysis suggested by the 
commenter is exactly the type of reliance upon existing information 
that this section intends to be available to trustees, if such 
information is relevant to the incident.

Section 990.44--Notice of Intent to Conduct Restoration Planning

    Comment: Several commenters suggested that the rule should 
explicitly acknowledge the need for flexibility in completing the 
Preassessment Phase. The commenters noted that, since incidents vary 
greatly in scope, the effort invested by trustees should be 
proportional to the magnitude of the incident, therefore, the rule 
should allow the public notice and participation steps to be 
compressed, when appropriate. Other commenters pointed out that the 
proposed language requires trustees to prepare a public notice, even if 
they have declined to proceed with an assessment. Another commenter 
suggested that trustees 

[[Page 478]]
should be required to provide the specific authority for which the 
trustees are asserting a potential claim in the Notice.
    Response: NOAA believes that the rule does direct trustees to 
tailor their preassessment activities to the nature and extent of an 
incident, given the determinations that this section requires trustees 
to make. Section 990.14(d) has been amended to explicitly provide that 
the degree, extent, and timing of public participation prior to 
development of a draft restoration plan is within the discretion of the 
trustees. The final rule also indicates that the manner of making the 
Notice of Intent to Conduct Restoration Planning publicly available 
will depend on the nature and extent of the incident. The final rule 
also explicitly requires that the notice reference the specific 
authority under which trustees are pursuing a claim for restoration of 
their trust natural resources.
    Comment: One commenter suggested that notice requirements to the 
responsible party, and required contents of the notice, are unclear. 
Another commenter noted the requirements to prepare a notice and open 
the administrative record should be moved to a later point in the 
assessment, so that such requirements will not hamper necessary 
trustees activities.
    Response: NOAA has amended the rule to indicate that a written copy 
of the notice must be sent to identified responsible parties, and the 
rule at Sec. 990.44 now specifies information for inclusion in the 
notice. The rule provides trustees the flexibility to conduct essential 
Preassessment Phase activities that will allow them to make the 
requisite determination that they should proceed with restoration prior 
to turning their efforts to preparing a Notice of Intent to Perform 
Restoration Planning and opening an administrative record.

Section 990.45--Administrative Record

Review on the Record
    Comment: Several commenters argued that the rule should not be 
silent on the standard of review for assessments, but should 
emphatically, specifically, and clearly state that the standard of 
review applicable to trustee decisions, based upon an administrative 
record, is like that of any other ``final agency action'' contemplated 
under the Administrative Procedure Act (5 U.S.C. 551-59, 701-06), or 
applicable State or tribal counterparts. Some of these commenters 
suggested that because OPA authorizes NOAA to provide for the 
administrative adjudication of damages (33 U.S.C. 2706 (c)-(e)), the 
promulgation of a rule providing for such administrative adjudication 
would ensure that OPA's restoration goals are met. These commenters 
also objected to NOAA's failure to provide for procedures to 
administratively adjudicate natural resource damages that should, in 
particular, provide for a hearing to be held by a neutral arbitrator 
when requested as the statute requires.
    Several commenters noted that, if NOAA is wrong about the effect of 
the rule, then following the rule will severely prejudice the trustees. 
The commenters stated that, if responsible parties are successful in 
conducting ``shadow'' assessments and convincing courts that they are 
entitled to trials de novo, then the public will be ill-served by 
trustees complying with the rule. The commenters pointed out that, 
unlike the responsible parties, trustees will be forced to reveal their 
claim, data, procedures, and analyses in an open process and losing any 
litigation privileges on their scientific information, which will put 
trustees at a distinct disadvantage in litigation compared to 
responsible parties. The commenters also noted that protections are 
necessary so that a breakdown of a cooperative process, in which 
information has been shared, does not undermine the ability of trustees 
to make recoveries and complete restoration.
    Several commenters described the expected benefits of review on the 
administrative record process, including greatly reduced amounts of 
litigation, and associated transaction costs, greater public 
participation in damage assessment and restoration decisions, and 
enabling trustee agencies to make decisions on natural resource damage 
assessments and restoration plans within their areas of expertise, 
instead of having courts decide extremely complex technical, 
scientific, and economic determinations. Other commenters stated that 
record review would be beneficial to the responsible party, who will be 
able to contest any trustee decisions from a neutral, common body of 
data which they may help to develop.
    Other commenters argued that the Seventh Amendment to the U.S. 
Constitution, which guarantees a jury trial in suits at common law, 
does not preclude record review of the damage determination, stating 
that the Supreme Court has interpreted this language as applying to 
actions analogous to those brought in 18th-century English courts of 
law as opposed to courts of equity or admiralty. The commenters argued 
that a claim for damages to natural resources is much more analogous to 
an equitable action than a legal one. Some commenters stated that 
record review is also mandated by the rebuttable presumption since it 
would make no sense for there to be such a presumption absent record 
review. The commenter noted that the rebuttable presumption is based on 
the existence of a full record and careful administrative decisions.
    Other commenters addressed other statutory processes that grant 
record review to comparable regulatory processes, such as NEPA. The 
commenters pointed out that, although the cases are not directly on 
point, a few courts have applied a deferential standard of review to 
decisions of state or local agencies made pursuant to NEPA. One 
commenter specifically stated that NOAA should not try to imply that 
NEPA compliance is intended to or construed as an indirect means of 
attaining deferential review on record.
    Some commenters suggested that the rule now creates a negative 
inference regarding applicability of record review by retreating from 
its earlier, wholly defensible position. The commenters stated that 
NOAA need not make the standard of review mandatory in the rule, but 
should express its legal opinion in the preamble regarding record 
review based on the ``arbitrary and capricious'' standard.
    Several commenters endorsed the decision not to expressly address 
in the rule a standard of judicial review, but the commenters argued 
that legal and policy considerations dictate that NOAA should not imply 
such a standard either. The commenters noted that simply changing 
``compensable values'' to ``compensatory restoration'' is not enough to 
bring such components under a presumed preferential standard of review. 
The commenters argued that, since this element remains based on the 
same statutory provision for ``diminution in value,'' it would still be 
subject to de novo review.
    One commenter noted that the rule provides so little meaningful 
restraint on trustee discretion, the unfairness of a record review 
approach is patent.
    Response: NOAA agrees that damage assessment determinations made 
pursuant to OPA constitute final agency actions typically subject to 
review on the record by federal courts, and fully expects that this is 
the standard of review that will be applied. NOAA agrees with the 
benefits and rationales discussed in support of record review, and also 
agrees that the rebuttable presumption is not inconsistent with review 
on the record. NOAA does not agree that diminution in value 

[[Page 479]]
necessarily provides for de novo review by a court, given that this is 
but one element of a claim for damages, all of which must be applied to 
restoration. NOAA does not believe that many responsible parties are 
interested in conducting ``shadow'' assessments.
    However, NOAA does not believe that it is within the scope of 
responsibility tasked to NOAA to promulgate natural resource damage 
assessment regulations to specify reviewing court procedures and 
protocols. No negative inference should be drawn from lack of 
declaration within the rule that review on the record is the expected 
standard of review.
    Comment: Some commenters noted that preparation of an 
administrative record need not significantly delay the assessment or 
``overwhelm'' trustees in conducting assessments. The commenter stated 
that it is usually rather simple and straightforward for the trustee 
contemporaneously to organize all documentation supporting its 
decisions into an administrative record, and that such preparation will 
save tremendous time and resources in preparing for a record review 
trial, although not necessarily for a trial de novo.
    Some commenters stated that the responsible party should be 
required to meet the same public disclosure standards as the trustees, 
to whatever extent they are involved in the assessment. These 
commenters noted that public involvement is made more meaningful and 
restoration plans are more properly suited to the injury as more data 
is available, and the availability of data also removes the uncertainty 
of litigation as well. One commenter expressed concern that the use of 
the record will compromise trustees' litigation, with no corresponding 
risk for the responsible party. Some commenters noted that sharing 
information may be an enticement to responsible parties to join 
trustees in an assessment; this incentive would not exist if the 
trustee is required to reveal information in the record in any case.
    Response: NOAA agrees that preparation of an administrative record 
need not delay the assessment. Past experience has indicated that 
secretive assessments are not in the best interests of the public or 
the natural resources. It is in all parties' interests to openly and 
cooperatively determine what restoration actions are needed as a result 
of an incident, so that restoration can be implemented quickly. NOAA 
believes that delayed restoration defeats the purposes of OPA. NOAA 
does not believe that responsible parties are likely to gain any 
advantage by not participating equally and openly in preparation of the 
administrative record, and expects a reviewing court would view with 
disfavor the withholding of information to spring upon the trustees at 
the eve of trial.
Contents of the Record
    Comment: One commenter asked for clarification as to what types of 
documents should be included in the administrative record.
    Response: NOAA points out that federal trustees should maintain the 
administrative record, including what documents might be included in 
administrative record, in manner consistent with the Administrative 
Procedure Act. Trustees should be guided by an understanding that all 
documents relied upon in making ultimate determinations about 
restoration should be included in the record.
    Comment: Some commenters expressed concern that third party 
litigants would use the information in the record to advance private 
claims. One commenter suggested that attempts by third parties to 
obtain information from the record would delay the restoration process. 
Another commenter noted that the kind of information in the record, 
focused on restoration, may not be particularly helpful to third party 
litigants.
    Response: It is not uncommon that private parties use publicly 
available information obtained from governments to support their 
private claims. Information gathered during an assessment on behalf of 
the public should not be withheld from the public. NOAA does not expect 
that allowing public access to an administrative record will result in 
delays in restoration.

Subpart E--Restoration Planning Phase

Section 990.51--Injury assessment

Causation
    Comment: Some commenters stated that the proposed rule does not 
clearly require trustees to use sound and reliable science, or provide 
specific requirements to be met in the various steps of the injury 
assessment. Several commenters stated that the rule must include 
rigorous standards and criteria for determining that an observed injury 
was caused by an incident to avoid unsupported, unnecessary, and 
unreasonable claims. One commenter noted that if the damage assessment 
is used for evidence collection, the question of how the data will be 
used raises a question of the level of confidence.
    Response: The treatment of injury determination within the rule 
supports the use of sound and reliable science to demonstrate that 
injuries identified have resulted from the incident. This treatment 
embodies the principles and practices of natural resource damage 
assessments developed over the past several years.
    Comment: Several commenters raised concerns regarding demonstrating 
causation for injuries resulting from response actions or a substantial 
threat of a discharge. These commenters noted that trustees must still 
show clear and specific causation for those injuries resulting from the 
response or threat, not from some other cause. Other commenters also 
stated that the rule should clarify that injury assessment is not 
limited solely to addressing injury residual to response actions, but 
should include direct, initial injuries.
    Response: For injuries resulting from an actual discharge, trustees 
must evaluate exposure and pathway and demonstrate that injury resulted 
from the incident. For injuries resulting from a response action or a 
substantial threat of a discharge, trustees must also demonstrate that 
the injury occurred because of the incident. Under this rule, 
assessments are not limited solely to addressing injuries residual to 
response actions, but include the direct, initial injuries. Evidence 
supporting the linkage between the incident and injury must be 
established to demonstrate injury. The rule's requirement to quantify 
injuries relative to baseline may provide the proof of causation.
    Comment: One commenter requested that the rule state that an 
incident should be deemed the cause of an injury if the incident was a 
contributing factor to an indivisible injury, as provided in the 1994 
proposal.
    Response: NOAA does not believe it is appropriate to advocate legal 
standards of causation in the rule. Injuries must be determined to have 
occurred, then quantified relative to baseline, to be in accordance 
with the rule.
Injury Determination
General
    Comment: Several commenters stated that the exceedance of some 
threshold or criterion by itself should not constitute an injury unless 
it can be shown to be relevant to each phase of injury determination, 
have population, habitat, or ecosystem level effects, or directly 
affect the human population. The commenters noted that the rule 

[[Page 480]]
should require injury determination and quantification for such 
injuries unless there are special circumstances such as threatened or 
endangered species.
    Response: NOAA disagrees that the suggested limitations on the 
definition of injury are appropriate or warranted given OPA's mandate 
to make the environment and public whole. If an injury resulting from 
an incident can be cost-effectively and reliably determined and 
quantified, and feasible, cost-effective, environmentally-beneficial 
restoration actions can be identified, then restoration should be 
pursued. However, NOAA does not suggest that each and every injury, 
regardless of its nature and scale, should be pursued in an assessment. 
Trustees proceed with an assessment when the information on injury is 
adequate to justify restoration.
    Comment: Some commenters suggested that the acceptance criteria in 
the CERCLA rule for injuries should be adopted in this rule. Other 
commenters did not understand the need for acceptance criteria, which 
were viewed as too restrictive and narrow. Another commenter 
specifically asked that the rule make the assessment consistent with 
the Archaeological Resources Protection Act (ARPA), 16 U.S.C. 1361 et 
seq., or at least incorporate the ARPA criteria.
    Response: The rule does not list specific acceptance criteria for 
injuries per se. The rule does, however, include factors aimed at 
achieving meaningful restoration. NOAA believes that the rule is 
adaptable and will allow trustees to select the injuries and assessment 
procedures that will provide reliable and valid information to 
determining appropriate restoration. Thus, the assessment process 
described in the rule should be flexible enough to incorporate the 
concerns and goals of ARPA.
Demonstrating Exposure and Pathway
    Comment: Several commenters argued that allowing demonstration of 
exposure and pathway by procedures other than field procedures would 
allow trustees to claim injury without leaving their desks. The 
commenters stated that the rule should require trustees to show 
evidence of actual exposure and a pathway. Another commenter, however, 
suggested that trustees might use procedures other than those used in 
the field to demonstrate exposure and a pathway, if environmental 
conditions or other assumptions are comparable between the proposed 
procedures and the actual field conditions. Some commenters suggested 
that the phrase ``plausible pathway'' be changed to ``reasonably likely 
pathway.''
    Response: Like any other assessment procedure used under this rule, 
procedures to determine exposure and pathway must meet the standards 
for acceptable procedures in Sec. 990.27. Thus, the most appropriate 
procedure for the circumstances will be selected by trustees, and NOAA 
does not believe that any of the suggested limitations or qualifiers 
are necessary in the rule.
Focus on Services
    Comment: Many commenters argued that injury assessment should focus 
on the services provided by a natural resource rather than simply the 
natural resource's physical, chemical, or biological properties. The 
commenters noted that, given that ecosystems need some level of 
disturbance to maintain biological diversity, and the difficulty in 
determining recoverability of natural resources since natural resource 
stability does not exist, adverse effects to natural resources that 
cannot be linked to services provided to the public or the overall 
functioning of the population, community, or ecosystem ought not be 
considered under the rule.
    Response: OPA states that trustees ``shall assess natural resource 
damages'' (section 1006(c)) and that these damages are ``for injury to, 
destruction of, loss of, or loss of use of, natural resources'' 
(section 1002(b)(2)(A)). The language of OPA clearly does not indicate 
a preference for services over natural resources.
    On a practical basis, the determination of recovery is possible, as 
demonstrated by the wealth of information on this topic in the 
literature and summarized on NOAA's restoration guidance document, 
listed in the Bibliography at the end of the preamble. Ecological 
concepts such as stability, although not static, can also be reasonably 
determined and thus used to define recovery. This is also supported by 
the literature. Thus, contrary to the commenter's position, NOAA 
maintains that recovery of natural resources, as a practical matter, 
can and must be considered in order to fulfill OPA's goal of making the 
environment and public whole.
Panel of Experts
    Comment: Some commenters suggested that NOAA establish a team of 
experts in ecology to provide a better scientific basis for determining 
and quantifying injury to natural resources. These commenters also had 
specific concerns with the use of certain procedures, e.g., biomarkers, 
and the manner of accounting for indirect effects.
    Response: NOAA does not believe it is necessary at this time to 
convene a panel of experts. Instead, the standards for procedures 
provided in Sec. 990.27 should address the concerns about certain 
procedures on a case-by-case basis.
Types of Injuries
    Comment: Several commenters suggested that the rule include a list 
of pre-accepted biological and non-biological injuries and parameters 
such as reproductive success and juvenile or adult survival. The 
commenters stated that the rule should also provide a mechanism to 
modify the list of accepted injuries as new information becomes 
available. These same commenters stated that, whether or not such a 
list is finalized, the rule should allow an injury to be determined 
based on a discharge, known concentrations, and literature 
documentation that such substances in such amounts injure certain 
natural resources. One commenter suggested the rule implies that 
trustees will assess injuries that do not meet some unarticulated 
threshold. The commenter stated that the decision to select injuries 
for assessment should be left to the discretion of the trustees.
    Response: The rule does provide that it is within the discretion of 
trustees to select subsets or representative injuries and parameters 
from the suite of injuries and parameters to include in the injury 
assessment and restoration planning. Rather than specify discrete 
categories for limiting this scope, e.g., recreational importance, the 
rule encourages a focus on accomplishing meaningful restoration by 
identifying factors to consider in selecting injuries to include in the 
assessment. The guidance document on injury provides information on the 
types of injuries that may result from incidents involving oil.
Framework for Assessment
    Comment: One commenter indicated that the rule should provide a 
framework that is interpretable to all trustees. The commenter 
suggested that the ecological risk assessment procedure would greatly 
facilitate the assessment.
    Response: NOAA believes that the rule does provide a 
comprehensible, logical, and straightforward assessment procedural 
framework. The general logic of ecological risk assessment is reflected 
in the assessment process in the rule. However, NOAA does not believe 
that the approach typically involved in risk assessment is appropriate 
for all, or even most, incidents. 

[[Page 481]]

Injury Procedures
    Comment: One commenter stated that the rule should more clearly 
state that both quantitative and qualitative procedures may be used in 
an injury assessment.
    Response: Both quantitative and qualitative procedures are 
available to trustees under this rule. This flexibility is made clear 
in the discussion of the standards for acceptable procedures in 
Sec. 990.27 and in the definition of injury in Sec. 990.30.
Proceeding With the Assessment
    Comment: One commenter stated that the rule requires that all of 
the listed criteria for determining injury must be met before trustees 
may proceed with an assessment. The commenter noted that it might not 
be feasible to have documented all the criteria at this point, thus the 
rule should simply require that trustees ``consider'' these criteria 
before proceeding with restoration planning.
    Response: The conditions in the rule are intended to encourage a 
focus on necessary and meaningful restoration. Therefore, proceeding 
with an assessment at this stage is contingent upon demonstrating 
injury.
Public Involvement
    Comment: Some commenters argued that there should be greater public 
involvement in the injury determination, quantification, and 
restoration process so that the public will be allowed to participate 
in the selection of injuries to be included in the assessment. The 
commenter noted that the public may be aware of injuries of which the 
responsible party and trustees are unaware. The commenters stated that, 
if the public input is to be meaningful and comply with OPA, the public 
must be given a formal means of involvement throughout the process.
    Response: The rule acknowledges the value of involving the public 
in the assessment, and requires that trustees provide opportunities for 
public involvement after making the decision to develop restoration 
plans. Additional opportunities may be provided at any time prior to 
this decision if such involvement facilitates the decisionmaking 
process or helps to avoid delays in restoration.

Section 990.52--Quantification

Baseline
    Comment: Some commenters stated that the rule does not require 
quantification relative to baseline. Commenters noted a number of 
difficulties associated with determining baseline for quantification 
purposes including the use of historical data that may not reflect 
current conditions at the site of the assessment and the need to 
account for natural variability or confounding influences to adequately 
compensate for injuries without overestimating the injuries. The 
commenters also pointed out that non-equilibrium systems are the rule, 
so baseline may be difficult to define, let alone achieve. Finally, the 
commenters also noted that funding is rarely if ever available for 
establishing baseline.
    Some commenters argued that quantification should focus on services 
rather than natural resources, therefore baseline should be defined as 
the flow of services to the public that would have existed in the 
absence of the incident.
    Response: The approach for quantification does relate injury to 
baseline. The rule acknowledges the inherent difficulties in collecting 
traditional baseline data and has been expanded to encompass other 
appropriate types of data for comparison. Broadening the concept of 
baseline will allow trustees to more appropriately adapt the 
quantification approaches to the circumstances of an incident. NOAA 
also notes that strict reliance on services is neither explicitly 
stated nor implied under OPA. Thus, the definition of baseline and its 
application to quantification is retained in the rule.
Quantification Approaches
    Comment: A number of commenters argued that the rule should require 
quantification of the reduction in services resulting from the 
incident, as required in the CERCLA rule. Some of the commenters stated 
that the dichotomy of measuring the change in the natural resource 
itself, or directly in the services is unnecessary and that only the 
measurement of reduced services can serve as a predicate for 
compensable natural resource damages. Some commenters argued that NOAA 
should adopt acceptance criteria for injury quantification, such as: 
service reductions must be linked to the discharge and the natural 
resource injury; service reductions must be measured relative to 
baseline; service reductions must be measured in terms of functions 
provided by the injured natural resources, not the physical quantities 
or qualities of the natural resources; and measurements of service 
reductions must account for the presence and availability of substitute 
services.
    Response: The rule allows trustees to assess the injured natural 
resources directly and/or directly assess the lost services provided by 
injured natural resources. NOAA believes that narrow restrictions on 
assessing services to humans will fall far short of fulfilling the 
intent of OPA to make the environment and public whole. NOAA believes 
that the public does value and benefit from productive, functional, and 
healthy natural resources, habitats, and ecosystems. Neglecting OPA's 
mandate to restore that which was injured and substituting natural 
resources on a narrow cost and human use basis would result in real 
degradation of the natural resources. Establishing additional 
quantification criteria focusing on human services would be 
inappropriate.
Scale of Injury
    Comment: One commenter stated that quantification should be limited 
to only those injuries necessary, and only to the degree necessary, to 
develop appropriate restoration measures. Some commenters pointed out 
that a consideration of the extent of injuries should not be restricted 
to the physical boundaries of the incident, particularly where natural 
resources at risk are highly mobile and seasonal in their 
distributions.
    Response: Quantification is appropriate where injury has been 
determined to have resulted from the incident. Where information on 
injury provided by quantification procedures is adequate to justify 
restoration, then restoration actions should be pursued. Also, under 
the rule, the spatial and temporal extent of injury is not restricted 
to the physical boundaries of the incident and trustees may consider 
the particular characteristics of a natural resource, including its 
mobility, in quantifying injury.
Committed Services
    Comment: Some commenters requested that the rule allow reduction in 
service flows only for established or ``committed'' services to avoid 
speculative recoveries.
    Response: The provisions in the rule relating to quantification of 
services lost relative to baseline ensure that speculative recoveries 
are avoided.
Injury Quantification Procedures
    Comment: One commenter stated that the rule should call for field-
based quantification procedures, including a set of general and basic 
standards for quantifying reductions in services. Other commenters 
requested that the rule provide trustees with the ability to choose one 
or any combination of quantification procedures, so long as there is no 
double recovery.
    Response: NOAA does not believe that the rule should prescribe 
limited or 

[[Page 482]]
specific procedures for quantifying injury, as it is infeasible to 
determine the universe of procedures that would be appropriate for all 
incidents. Such a limitation would prevent trustees from using the most 
appropriate procedure for the circumstances of the incident, and would 
likely prevent use or adaptation of procedures to provide 
quantification information that is useful in restoration scaling. 
Instead, the rule provides standards in Sec. 990.27 for use in 
determining appropriate procedures. The rule does allow trustees to use 
a combination of the suggested quantification approaches, but prohibits 
trustees from applying injury quantification procedures in a manner 
that would result in double recovery.
Substitutes
    Comment: One commenter argued that the rule fails to require 
consideration of substitutes when injury is defined in terms of a 
reduced population as opposed to a broad enough category to incorporate 
substitution.
    Response: Substitution is not explicitly identified as a factor in 
quantifying injuries because it is only relevant to a subset of 
injuries or losses--those that relate to value flowing from behavioral 
opportunities available to humans.
Natural Recovery
    Comment: Several commenters stated that the requirement for 
estimating the time for natural recovery may be difficult to meet, and 
that the rule should instead call for this estimate when such estimate 
is readily available and cost-effective, and when no primary 
restoration is likely to be effective.
    Response: NOAA acknowledges the difficulty in estimating natural 
recovery and has provided the necessary flexibility to trustees. The 
rule has been amended to provide that recovery may be estimated 
quantitatively or qualitatively, depending on the circumstances of the 
incident and procedures available that meet the standards for 
procedures under Sec. 990.27.

Section 990.53  Restoration Selection--Developing Restoration 
Alternatives

General
    Comment: Many commenters supported the shift in focus from 
monetization of damages to scaling of restoration actions. These 
commenters stated that the proposed rule properly places the focus of 
the damage assessment on the ultimate goal of OPA to restore injured 
natural resources and services, and incorporates best current practices 
currently being used by trustees and responsible parties to achieve 
this goal in an expeditious manner. However, many other commenters 
raised concerns that the scaling approach would lead to delays and 
increased assessment costs, since trustees would undertake studies of 
lost services and replacement services, and would not substantially 
further the goal of reducing transaction costs. Other commenters 
suggested that requiring trustees to quantify all damages in terms of 
specific restoration actions and costs places trustees in the position 
of either settling for compensation for immediately apparent, short-
term losses or delaying the restoration process while waiting for long-
term injuries to become apparent. One commenter noted that the public 
will not be served in either case; therefore, trustees should be 
allowed to recover damages, then determine the most appropriate 
restoration approach over time. Another commenter argued that as 
accurate assessment becomes more difficult and costly, less scientific 
rigor will be required.
    Response: Trustees are required, under section 1006(c) of OPA (33 
U.S.C. 2706(c)), to ``develop and implement a plan for the restoration, 
rehabilitation, replacement, or acquisition of the equivalent, of the 
natural resources under their trusteeship.'' By permitting a variety of 
possible restoration activities, this section of OPA leaves to the 
trustees' discretion the determination of the most appropriate 
activity, recognizing the legislative history's indicated preference 
for restoration over acquisition of equivalent natural resources. All 
damages recovered must be spent on some restoration activity. Thus, it 
makes sense that evaluating potential restoration actions provide the 
focus of an assessment. It does not benefit the natural resources or 
the public if monies are collected without a view toward how they will 
be spent, nor whether sufficient funds have been collected to implement 
any meaningful action. OPA is not about collecting money. NOAA believes 
that, contrary to some comments, the restoration approach will 
generally speed restoration and avoid litigation, by alleviating 
distrust that claims for monetary damages are speculative and punitive. 
Practical experience in implementing the restoration scaling approach 
in past cooperative assessments has led NOAA to the belief that this 
approach is effective in significantly expediting the restoration of 
injured natural resources and services, and that the benefits to the 
environment and public do not come at the expense of increased 
assessment costs. While trustees now must assess replacement services 
in addition to lost services in most incidents, NOAA believes that, in 
general, a net increase in assessment costs will not result, due to 
both the cooperative provisions set forth within this rule and the 
removal of the requirement that trustees estimate the monetary value of 
damages. NOAA also believes that the standards for assessment 
procedures set forth in Sec. 990.27(a) of the rule will ensure a 
sufficient level of rigor for all assessments.
Range of Alternatives
    Comment: Some commenters requested guidance on what might be an 
appropriate range of restoration alternatives. Other commenters noted, 
however, that the rule should not require the development and 
consideration of a predetermined number of potentially unreasonable 
alternatives.
    Response: NOAA does not agree with the commenters who recommended a 
limit on the range of alternatives trustees should consider. Trustees 
should consider a range of alternatives that is reasonable for the 
incident of concern, and the specific natural resources injured. The 
rule requires that only actions that are feasible and legal be 
considered. The range of feasible actions may vary greatly, depending 
on the types of injuries suffered, or the nature of the environment or 
habitat, among other things. Guidance on the types of actions and how 
they might be considered is provided in the Restoration Guidance 
Document, referenced in the Bibliography at the end of this preamble.
Natural Recovery Alternative
    Comment: Some commenters suggested that, when injuries are not 
extensive or are short-term, no restoration actions are needed, 
therefore, the rule should more strongly require consideration of 
natural recovery. Many commenters supported the requirement that 
trustees always consider natural recovery as an option. Several 
commenters stated that the rule should adopt a preference for natural 
recovery.
    Other commenters stated that the language regarding the ``no 
action'' alternative is confusing. Another commenter suggested that the 
confusion over the terms might be a result of the different objectives 
of OPA and NEPA.
    Several commenters stated that the rule should set out reasonable 

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    expectations for analysis of natural recovery, especially where 
injuries are evident from the Preassessment Phase investigations and 
feasible restoration alternatives exist. These commenters suggested 
either deleting the requirement to evaluate a no action alternative or 
making it optional.
    Response: The rule requires that natural recovery be evaluated as a 
primary restoration action in every case. ``No action'' refers to 
alternatives in which trustees take no primary restoration action and 
no compensatory restoration actions. Natural recovery, which must be 
considered for each incident, is only considered under the primary 
restoration component of the alternative and only refers to direct 
restoration involving no human intervention. Trustees have the 
discretion to choose any combination of primary and/or compensatory 
restoration actions, given the circumstances of the incident.
Primary Restoration
    Comment: Many commenters requested that the rule clarify the 
distinction or relationship between primary and compensatory 
restoration. Another commenter, however, suggested that this was a 
distinction without any significance. Some commenters interpreted the 
regulations to allow only on-site, in-kind actions in primary 
restoration. Some commenters noted that, if the rule is interpreted to 
limit primary restoration to actions focused on the injured natural 
resources themselves, and to relegate replacement or acquisition 
actions solely to compensatory restoration, it is inconsistent with 
OPA, which authorizes replacement and acquisition of the equivalent as 
measures for primary restoration. Other commenters noted that primary 
restoration could include any action, whether on-site, off-site, in-
kind, out-of-kind, that returns natural resource and/or service levels 
back to baseline condition.
    Response: NOAA has sought to clarify the distinction between 
primary and compensatory restoration, including specifying explicitly 
in the preamble discussion of the definition of ``restoration'' that 
primary restoration may include on-site, off-site, in-kind, and/or out-
of-kind restoration actions that return injured natural resources and 
services to baseline. Actions to restore, replace, rehabilitate, or 
acquire the equivalent of injured natural resources or services may be 
considered in evaluating both primary and compensatory restoration 
actions.
    Comment: Some commenters suggested that primary restoration should 
attempt to make the public whole by returning net services to the 
public to baseline.
    Response: NOAA believes that in most cases, primary restoration 
alone will not be sufficient to make the environment and public whole. 
When incidents result in interim lost services, an additional 
compensatory restoration component will be necessary to fully 
compensate for injuries to trust natural resources.
    Comment: One commenter stated that the rule should require a 
hierarchy of alternatives, such as on-site, in-kind; off-site, in-kind; 
and off-site, with substitute natural resources or services with 
equivalent economic value.
    Response: NOAA does not support the development of such a 
hierarchy, since it may prevent the trustees from selecting and 
implementing the alternative which best meets the criteria for 
evaluation of alternatives presented in Sec. 990.54(a).
Acquisition of the Equivalent
    Comment: One commenter contended that acquisition of the equivalent 
is inconsistent with the stated aim of compensatory awards and should 
not be considered. The commenter questioned how acquiring the 
equivalent restores the injured natural resources, since the effects of 
most incidents are transient. Some commenters on the 1994 proposal 
objected to the ranking of restoration alternatives whereby acquisition 
of the equivalent is the option of last resort, especially where 
natural resources are subject to development or other pressures (e.g., 
in urban areas). The commenter stated that trustees should be free to 
acquire the equivalent even if other restoration alternatives are 
possible. Some commenters stated that the goal of restoration is to 
make the public whole through whatever alternatives are available under 
OPA, which may or may not include returning natural resources to 
baseline.
    Response: NOAA contends that, in some instances, acquisition of 
equivalent natural resources or services may be necessary to adequately 
compensate the environment and public. The present rule does not 
prevent acquisition of the equivalent even in the presence of other 
feasible alternatives.
Restoration of Services
    Comment: Several commenters argued that restoration alternatives 
must be formulated and evaluated by reference to the services provided 
by the injured natural resource, not the natural resource itself. 
Therefore, the commenter suggested that NOAA should make every effort 
to clarify that the restoration of services of natural resources refers 
only to those services or functions provided to society. Commenters 
added that the service-focus is needed to select the most cost-
effective, rational, and efficient restoration alternatives. The 
commenters argued that allowing trustees to choose full physical 
restoration where a less expensive alternative can fully replace the 
services provided by the natural resource is contrary to the goal of 
cost-effectiveness since the additional expenditure required for full 
physical restoration provides no additional benefit to the public. 
Other commenters suggested that a natural resource-based approach could 
result in overcompensating the public.
    Response: The rule focuses all assessment decisions on restoration, 
and making the environment and public whole. Primary restoration 
focuses on the injured natural resources themselves, as authorized by 
OPA's language basing liability and damages on injuries to natural 
resources themselves, while compensatory restoration focuses on the 
services that are lost as a result of the incident, and which are not 
compensated for by implementing the primary restoration action. Both 
elements must be considered in designing restoration alternatives. 
Because OPA defines damages to include both the cost of restoration and 
diminution in value, a focus solely on natural resources or solely on 
services risks undercompensating the environment and the public.
Other considerations
    Comment: Several commenters suggested that a focus on ``certain key 
species or habitats'' may lead to controversy, since terms are not 
defined. The commenters noted that there is sufficient guidance in the 
quantification section on this issue and that these terms are not 
needed. However, the commenters suggested that, if the terms are 
retained, the phrase ``key services'' should be added.
    One commenter suggested that there is the need to develop 
procedures that allow for non-predictable attributes of the ecosystem. 
The commenter noted that, for other programs requiring restoration, a 
poor job has been done in the past of documenting restoration outcomes 
needed to provide data for development of new models.
    One commenter stated that the procedures for restoration under OPA 
are unlikely to replace injured natural resources because of inadequate 


[[Page 484]]
knowledge on critical habitat functions, long-term success and the lack 
of procedures to assess impacts due to multiple stressors.
    Response: The final rule retains the guidance that primary 
restoration actions that return key natural resources or services to 
baseline may be an appropriate restoration alternative if, for 
instance, such an action would facilitate return or recovery of other 
natural resources. The concept of key services has been added to the 
rule. NOAA believes that the rule's requirements to determine standards 
to gauge the success of restoration actions, and performance criteria 
to measure the progress of actions in achieving goals and success, will 
provide the types of information through monitoring that the commenters 
suggest are needed.
Compensatory Restoration
Mandatory Inclusion
    Comment: Some commenters argued that the inclusion of compensatory 
restoration should be required in all planning efforts, and not be 
discretionary. Some of these commenters stated that if trustees do not 
include compensatory restoration actions, they should include a written 
justification for compelling reasons of why such actions were not 
included.
    Response: The rule and preamble have been revised to reflect that 
trustees must consider compensatory restoration action and also must 
document this decision in the restoration plan.
General
    Comment: Many commenters noted that there are too many undefined 
terms, e.g., ``scarcity,'' ``comparable,'' ``equivalent,'' used in the 
compensatory restoration provisions.
    Response: NOAA has amended the rule to require that the relative 
value of injured and replacement natural resources and services be 
evaluated, rather than scarcity and demand.
    Comment: Several commenters suggested that the compensatory 
restoration approach seems to have been structured as an attempt to 
circumvent the difficulties in accurately measuring interim lost 
values. However, the commenters stated that the concepts of 
compensatory restoration and scaling do not address the defects of the 
1994 proposal and that these concepts are based upon economically and 
legally unsound assumptions and, therefore, fail to comply with the 
statutory measure of damages.
    Response: NOAA has put forth the revised rule with the intent of 
expediting restoration of injured natural resources and services. NOAA 
believes that the compensatory restoration approach in this rule is 
technically and legally sound, and consistent with the language and 
intent of the statute, and more appropriate to adequately assess and 
compensate for interim losses than previous approaches.
Concept of Compensatory Restoration
    Comment: Several commenters argued that the concept of compensatory 
restoration creates the potential for exaggerated or excessive damage 
awards and will enable excess money to be spent on natural resource 
projects without limitations. Some of these commenters argued that this 
approach has insufficient constraints on the application of procedures, 
which may result in double counting, assessments beyond the scope of 
OPA, or damages that are grossly disproportionate to the value of the 
natural resources.
    Response: NOAA believes that the standards provided in the rule for 
acceptable procedures, the prohibition on double recovery, and the 
opportunities for public review and input provide constraints 
sufficient to avoid the problems suggested by the commenters.
Services Eligible for Compensatory Restoration
    Comment: Some commenters suggested that the rule is unclear as to 
what types of services would be eligible for compensatory restoration. 
The commenters stated that the rule should have an additional section 
that would list protocols that would enable trustees and responsible 
parties to easily ascertain what service functions were impaired by the 
incident, if any, and then make rational decisions about what types of 
projects would serve as adequate restoration.
    Response: NOAA has developed draft guidance documents, listed in 
the Bibliography at the end of the preamble, that directly address 
these commenters' concerns. These guidance documents will be finalized 
after the rule is final. All quantifiable lost services for which 
feasible restoration actions can be identified are compensable under 
the rule.
Components Included Under Compensatory Restoration
    Comment: Some commenters noted that the rule should clarify that 
compensatory restoration is defined as actions to make the environment 
and public whole for interim losses. Another commenter noted that 
compensatory restoration could also address any additional injury 
associated with the incident. On the other hand, another commenter 
stated that interim lost values should not be collected by trustees 
because that would be double recovery, and that collection of these 
damages should be allowed only if there is a mechanism for distributing 
those recoveries to the group injured by the incident.
    Some commenters noted that the rule should clarify that 
compensatory restoration is defined as actions to make the environment 
and public whole for interim losses. Another commenter noted that 
compensatory restoration could also address any additional injury 
associated with the incident.
    Response: In order to make the public whole for the resource 
injuries, it is not sufficient to ensure that the resources are 
returned to baseline condition, the public also must be compensated for 
the losses from the time of the injury until full recovery of the 
resources. For example, when beaches, parks, or fisheries are closed 
and natural resource stocks are injured, people either will lose or 
will have impaired opportunities for fishing, hunting, hiking, 
birdwatching, and other activities. OPA provides that the measure of 
damages includes recovery of the costs of restoring natural resources 
and services to baseline, plus compensation for interim losses (and for 
assessment costs). These recoveries are not to be distributed to 
affected groups or individuals, rather OPA requires that they be used 
to restore, rehabilitate, replace, or acquire the equivalent of the 
injured natural resources. The recoveries are to be collected and spent 
on natural resource restoration actions by the public agencies managing 
the natural resources in trust for the public.
    Private parties also may have standing to claim for private losses 
resulting from a particular incident. Double recovery is not allowed 
under statute. Public and private claims are for logically different 
categories of losses. Specific provisions are articulated in the rule 
in order to avoid double recoveries.
    Comment: Some commenters stated that the rule should not allow for 
recovery of any private losses because of the potential for double 
recovery. These commenters noted that such recoveries would include 
economic rent, private recreational losses (consumer surplus), lost 
commercial revenue, and government revenues. One commenter stated that 
changes in economic rent as a result of an incident are too complicated 
to estimate reliably because of changes in factor costs and other 
prices. Another commenter argued that trustees should not be able to 
collect for economic rent even when private 

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parties do not make such claims because this recovery by trustees is 
not included within the language of OPA.
    Some commenters noted that the final rule should include the 
``multiplier impact'' from interim losses to estimate the true loss. 
These same commenters also stated that the final rule should consider 
nationwide, statewide, and regional assessments to account for areas 
affected outside the direct impact area.
    Another commenter suggested that the final rule should clarify the 
factors that may weigh into a natural resource damage assessment 
involving subsistence resources, particularly nutritionally and 
culturally critical, as well as highly regulated natural resources.
    Response: The preamble discussion of Sec. 990.22 has been revised 
to provide trustees with detailed guidance in distinguishing between 
public and private economic losses in order to avoid double recovery. 
Under the valuation scaling approach, trustees are entitled to scale 
restoration actions based on the total diminution in value of lost or 
diminished services from injured public trust natural resources not 
recovered by a private party. One component of this total diminution in 
value is the resulting reduction in economic rent, which represents the 
income that accrues to a producer as a result of access to an unpriced 
natural resource. The procedures identified for calculating economic 
rent are well accepted economic procedures. The rule, in Sec. 990.27, 
provides standards for a case-by-case determination of reliable 
application of any procedures employed by trustees.
    In general, private parties can make claims for damages under 
common law only when a private proprietary interest has been injured 
(with an exception under admiralty that commercial fishermen do not 
require an injury to a proprietary interest). These claims are 
generally limited to ``economic'' (i.e., financial) losses. This 
restriction excludes claims for lost consumer surplus attributable to 
impaired recreation. See Alaska Sport Fishing Ass'n v. Exxon Corp., 34 
F.3d 769 (9th Cir. 1994) (affirming dismissal of private claims on 
behalf of approximately 130,000 recreational anglers seeking 
compensation for the Exxon Valdez spill.)
    Ambiguities could arise where impaired recreational uses of public 
natural resources are linked with uses of private property that is 
injured due to an incident. In this case, the trustees would seek full 
recovery occur except for those losses being sought by private parties 
so that double recovery did not occur.
    The loss of government fees attributable to a reduction in 
government services as a result of injuries from an incident are 
appropriately elements of public claims. On the other hand, the changes 
in expenditures captured by the multiplier effect do not represent 
public losses. For example, when an incident occurs, tourists may shift 
the location of their vacations to other substitute sites. The loss in 
hotel and restaurant business at the site of the incident will have a 
ripple effect on suppliers of goods and services for those businesses. 
The ``multiplier effect'' captures the second- and later-round losses 
in expenditures from an incident. However, the shift in tourist 
expenditures to hotels and restaurants at substitute sites (and to 
substitute activities) will bring comparable gains, with a comparable 
positive multiplier effect. The net impact will be zero in markets in 
which there is no change in price or direct impairment of productive 
capacity as a result of the incident. Consequently, public claims do 
not take into account shifts in expenditures as a result of the 
incident. Private parties may be able to file claims for such losses.
    In addressing claims for subsistence losses the trustees must take 
into account all of the services provided by the injured resources, 
including nutrition and cultural/spiritual values.
    Because evaluation of compensatory restoration actions requires 
scaling of the natural resources or services lost and linking them to 
appropriate compensatory restoration actions, there will be no double 
recovery for services restored under primary restoration actions. This 
approach should also ease concerns over speculative injuries being 
included in an assessment, as only measurable service losses, and only 
public losses, will be included.
Restorable Natural Resources
    Comment: Some commenters noted that the rule should not limit 
restoration to ``restorable'' natural resources or services since, from 
an ecosystem point of view, almost any injury can be redressed at least 
in part even if the particular services or site cannot be.
    Response: NOAA agrees and believes the rule is sufficiently 
flexible to provide compensation for those natural resources or 
services that are not directly restorable.
Types of Compensatory Actions
    Comment: One commenter stated that the rule should require that 
lost services and the replacement services be truly equivalent in type 
and quality. Other commenters, however, suggested that trustees may 
also consider, when establishing the range of compensatory restoration 
actions, actions that provide comparable injured natural resources and/
or services. These commenters noted that the rule is unclear whether 
trustees may examine restoration options that provide comparable 
services in those cases where there are sufficient options that restore 
same-type services. The commenters suggested that this limitation 
should be removed and trustees permitted to identify and choose any 
restoration options since a limitation to ``same or comparable'' 
services is too narrow given the complexity of natural ecosystems and 
their use (and nonuse) by humans. One commenter stated that the 
division between ecological and human services is blurry and that in 
planning restoration of lost services, it is often possible to restore 
both ecological and human services through the same action. Other 
commenters pointed out that the rule does not require that the selected 
compensatory restoration actions will have any connection whatever with 
the injured natural resources.
    Response: The rule states that trustees must consider compensatory 
restoration actions that provide services of the same type and quality 
and comparable value as those injured. However, if a reasonable range 
of actions meeting these criteria is not available, trustees are 
afforded the flexibility to consider actions that provide natural 
resources and services of comparable type and quality. The rule also 
develops a clear linkage between the injured natural resources and 
services and the selected compensatory action(s) by requiring that 
trustees develop restoration alternatives that provide services of the 
same or comparable type and quality.
Scaling
Scaling Primary Restoration Actions
    Several commenters suggested that scaling of primary, as well as 
compensatory, restoration will be necessary.
    Response: The rule has been revised to provide that scaling of 
actions generally applies to primary restoration actions that involve 
either replacement or acquisition of equivalent natural resources and/
or services.
Scaling Compensatory Restoration Actions
Inclusion of Passive Use Values
    Comment: Some commenters stated that the heavy reliance on services 
for 

[[Page 486]]
scaling may result in passive use services and services flowing from 
the unique character of a natural resource being excluded from 
recoveries, and that, even if they are included, the direct restoration 
approach is unlikely to be successful. Some commenters stated that 
passive uses should specifically be used in scaling the restoration 
actions.
     Some commenters noted that the loss of passive values should be 
compensated because such values represent part of the total value, 
therefore damages, under OPA. Other commenters noted that the rule 
should encourage rather than discourage the recovery of passive values 
in order to increase the incentives for actions to avoid and reduce 
such damages.
    Several other commenters specifically argued that passive use 
values should not be included in scaling restoration actions, primarily 
because such values cannot be measured reliably. Other commenters 
stated that including such values would unreasonably extend the scope 
of potential liability for responsible parties; would generate 
overstated damage claims, and would be punitive. Some of these 
commenters argued that such values are inappropriate for compensation 
because they are already incorporated into the legal requirements and 
compliance programs of OPA and, therefore, recovery of such values in 
natural resource damage cases would result in double recovery. Some 
commenters stated that Congress did not expressly provide for the 
recovery of passive values in OPA and that such values are overly 
inclusive and unrealistic. One commenter suggested that passive value 
loss is not meaningful within the statute.
    Some commenters stated that, generally, incidents involve short-
term, transitory injuries, therefore recovery for lost passive values 
is especially inappropriate because such recoveries would be punitive.
    Some commenters noted that future effects from injuries are highly 
speculative and, in the case of small injuries, insignificant; 
therefore, any passive value determinations should be reduced to real, 
near-term losses if they are to be included in a damage claim. Other 
commenters pointed out that compensable values should have a maximum 
recovery period for the future. One commenter suggested that some 
passive values involve behavioral traces, contrary to the proposed rule 
definition, and that the rule should encourage the measurement of 
observable damages, even for those who do not directly use the natural 
resource. Other commenters suggested that such values are not only 
speculative, but are not economic in nature.
    Response: NOAA believes that the flexibility provided by the range 
of available scaling approaches will prevent the public from being 
deprived of full compensation. By allowing trustees to consider 
restoration actions providing natural resources and services of 
comparable type, quality and value, the rule provides a means for 
compensating the public for injuries to unique natural resources, even 
in cases where direct restoration of these injured natural resources is 
either not feasible or fails to bring the injured natural resources 
and/or services fully back to baseline.
    NOAA notes that there is a general consensus in the economic 
community that passive use values exist. Under OPA, and in accordance 
with the Ohio decision, passive use values may be used in calculating 
the level of compensation necessary to fully compensate the public. The 
procedures used to quantify passive use losses are subject to the same 
standards for acceptable procedures in Sec. 990.27 as all other 
procedures used to scale compensatory restoration actions. NOAA 
recognizes that in cases involving temporary injury, individuals may 
not experience a significant sense of loss. However, there are cases 
where the death of individual members of a species may cause a 
significant loss in passive use values even though the species levels 
may at some point return to baseline.
    Where appropriate, NOAA supports the inclusion of reliably 
calculated passive use values in the scaling process. NOAA notes that 
some of the commenters' concern about inclusion of passive use losses 
may have been addressed by defining compensation for interim losses in 
terms of the cost of compensatory restoration actions rather than as 
the value of interim losses. Furthermore, in the revised format for 
claims, valuation procedures, including stated preference methods, are 
used to make relative comparisons between the loss and the compensatory 
restoration action gains, rather than to generate absolute dollar 
amounts of lost value for a claim. Scaling compensatory restoration 
actions may involve a single survey eliciting the direct resource-to-
resource trade-offs between the injured natural resources and potential 
compensatory natural resources. In this case it is not necessary to 
elicit a monetary value for natural resources.
    Alternatively, scaling may involve a two-sided calculation, in 
which measures of both loss due to injury and gains from compensatory 
restoration actions are estimated separately. Where valuation 
procedures are employed, the decision as to the appropriate scale of a 
restoration action will require a relative comparison of the loss in 
value and the potential gains in value. NOAA recommends that, where 
feasible, trustees should use the same or similar valuation procedures 
for both sides of the calculation in order to reduce the possibility of 
bias in the scaling calculations.
Inclusion of Nonmeasurable Functions
    Comment: Some commenters stated that the rule should include 
nonmeasurable functions provided by natural resources, allowing for 
subjective assessments by trustees in determining the value of such 
losses. One of these commenters specifically requested that the rule 
acknowledge the spiritual, cultural, and religious nature of services 
unique to tribes. Some commenters argued that full consideration must 
be given to all of the natural resource services, whether they are of 
direct human use or not.
    Response: The rule does not limit the range of services to be 
included in scaling compensatory restoration actions, except to the 
extent that the procedures used to assess service injuries and scale 
compensatory restoration meet the standards presented in Sec. 990.27.
Need for Guidelines in Conduct of Scaling
    Comment: Many commenters suggested that the rule should contain 
guidelines for the scaling approach and procedures in the rule. Several 
commenters argued that economic valuation procedures are not 
sufficiently accurate or reliable at this time to allow trustees to 
make the comparison of services gained to services lost in a reliable 
way in many cases. Some commenters noted that detailed guidance is 
necessary to expedite damage claims and to avoid lengthy and expensive 
litigation.
    Some commenters stated that experimental and/or unreliable scaling 
procedures should not be accorded the rebuttable presumption under the 
rule. Several commenters argued that the absence of standards would 
allow the rebuttable presumption for any valuation procedure, no matter 
how poorly structured, including unnamed procedures that the trustees 
believe are appropriate. Therefore, some of these commenters stated 
that the rule should clearly define what ``valid'' and ``reliable'' 
mean with regard to assessment procedures. The 

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commenters also suggested that trustees who choose to use new or 
unorthodox procedures should be required to demonstrate that these 
procedures provide comparable or higher levels of validity and 
reliability than the procedures previously recognized by NOAA.
    Several other commenters, however, supported the decision to remove 
specific guidance on procedures from the rule and place them in 
guidance documents. These commenters argued that the rule should not 
establish premature or overly prescriptive procedural requirements for 
any economic or natural science procedure, since such procedures are 
the subject of research and refinement.
    Response: NOAA notes that the rule has been revised to provide a 
set of standards in Sec. 990.27 with which to judge all procedures 
under consideration, as well as factors to consider when selecting 
among those procedures. Assessments using procedures that meet these 
standards may receive the rebuttable presumption, if they are otherwise 
performed in accordance with the rule. In addition, NOAA is considering 
the development of a separate guidance document on resource-to-
resource, service-to-service, and valuation scaling procedures.
Choice of Resource-to-Resource and Service-to-Service vs. Valuation 
Scaling Approaches
    Comment: Many commenters opposed mandating the use of the service-
to-service scaling approach for restoration options providing the 
``same type and quality'' of services subject to ``comparable scarcity 
and demand conditions.'' These commenters state that this requirement 
restricts the flexibility of trustees in an assessment. The commenters 
stated that the restriction is unworkable, given the lack of direction 
as to what constitutes ``same type and quality'' and ``comparable 
scarcity and demand conditions.'' The commenters stated that trustees 
should be allowed maximum flexibility in selection of the most 
efficient assessment procedure. Some commenters pointed out that the 
requirement of service-to-service for any portion of restoration where 
in-kind natural resources or services are feasible will in some cases 
present difficulty in application of valuation procedures for remaining 
portions of a claim due to problems of double counting or indivisible 
losses and gains. The commenters argued that the selection of 
procedures should be based on factors such as reasonable cost, 
validity, reliability and incident specific considerations, which will 
not always favor the use of service-to-service scaling over valuation. 
The commenters pointed out that OPA defines the measure of damages to 
include ``diminution in value'' to the public; therefore, NOAA's 
authority to preclude trustees from assessing diminution in value in 
monetary terms is questionable. Some of these commenters argued that 
the service-to-service approach is not yet well developed, especially 
in the areas of human uses. However, the commenters pointed out that 
economic procedures have been well developed and frequently relied upon 
and should be accorded equal weight in the rule.
    Some commenters noted that the rule does not clearly specify when 
trustees should use the service-to-service instead of the valuation 
scaling approach.
    Response: NOAA agrees with the comments recommending elimination of 
the requirement to use a resource-to-resource or service-to-service 
scaling procedure when determining the scale of a compensatory 
restoration action that provides natural resources and/or services that 
are of the same type and quality and are subject to comparable natural 
resource scarcity and demand conditions as those lost. Consequently, 
NOAA has modified the rule to maximize the trustees' flexibility in 
choosing the most appropriate scaling approach. The trustees must now 
consider, but are not required to implement, a resource-to-resource or 
service-to-service approach for actions that provide natural resources 
and/or services of the same type and quality, and of comparable value 
to those lost. NOAA also has replaced the phrase ``comparable scarcity 
and demand'' with ``comparable value.'' The rule requires that the 
relative value of injured and replacement natural resources and 
services be evaluated.
Use of Public Natural Resources for Restoration Actions
    Comment: Some commenters argued that the compensatory restoration 
approach would transfer to the polluter for free the consumer surplus 
provided by public natural resources. The commenters stated that many 
public goods and natural resources provide a public benefit in excess 
of the cost of maintaining them. The commenters pointed out that a 
restoration-based approach is preferable to industry because it focuses 
on the cost of restoring an injury, rather than the value of the 
injury; that the difference between these two figures is the surplus 
value inherent in the natural resource. Therefore, the commenters 
argued that the responsible party pays the ``cost,'' the ``surplus'' is 
contributed and the appropriate ``value'' is achieved. The commenters 
stated that the rule must be amended to require restoration actions of 
a magnitude that create a net benefit (i.e., subtracting the pre-
existing value) equal to the injury.
    Response:  The rule does require that restoration actions create 
comparable benefits to those that were lost due to the injury. NOAA 
agrees that trustees should only count the incremental benefits created 
by a restoration action. For example, if an action is rehabilitating a 
wetland currently functioning at 50% effectiveness, only the 
incremental improvements beyond 50% should be taken into account. 
Trustees also should carefully consider the opportunity costs 
associated with the use of public natural resources for compensatory 
restoration actions. For example, if the restoration action is to 
transform land currently in upland use into marsh, the opportunity cost 
of forgoing the previous upland uses needs to be taken into account.
Consideration of Economic Benefits
    Comment: One commenter suggested that scaling should also consider 
the economic benefits resulting from the incident.
    Response: The economic benefits resulting from incidents will 
accrue primarily to individuals and, in most cases, will represent 
transfer payments rather than net social benefits. For example, whereas 
hotels in the area of an incident may lose tourist business, hotels in 
a substitute location may incur gains comparable to the on-site hotel 
losses. Just as losses to private parties are not included in the 
trustees' claim, neither should private gains be included.
Use of Same Procedure to Measure Injured and Replacement Natural 
Resources/Services
    Comment: Several commenters argued that the same procedure should 
be used to measure the value of losses and value of benefits of 
restoration. One commenter pointed out that the use of different 
assessment procedures for the same injury or loss would make it 
impossible to adjust accurately for bias and that the rule should 
require that trustees use procedures that are not subject to upward 
bias.
    Response: NOAA agrees that, where feasible, use of the same 
procedure to measure the value of injuries and benefits is recommended 
to reduce the opportunity for introducing bias in the scaling of 
compensatory restoration. However, NOAA believes that requiring 
trustees to use the same procedures to 

[[Page 488]]
measure the value of injuries and benefits is overly restrictive, since 
such a requirement may preclude trustees' ability to apply revealed 
preference procedures (i.e., procedures based on data on use of natural 
resources) in a range of circumstances. Revealed preference methods can 
only be used to value natural resources and opportunities to use 
natural resources with characteristics that fall within the range of 
currently existing natural resources and use opportunities. 
Consequently, though it may be feasible to value lost recreational use 
of a particular natural resource with a revealed preference method, 
such as the travel cost model, it will not be feasible to evaluate the 
benefits of a proposed compensatory restoration action if its 
attributes are outside of the range of what is currently available. For 
example, if there are no dune walkways at regional beaches it will not 
be feasible to value a restoration action constructing a dune walkway 
with revealed preference methods. NOAA believes that the issue of bias 
is addressed by the requirement in Sec. 990.27(a) requiring assessment 
procedures to be reliable and valid for the particular context.
Discretion to Use Valuation Procedures
    Comment: Several commenters argued that the rule gives virtually 
unbounded discretion to the trustees with regard to valuation 
procedures. The commenters were concerned that valuation ``sneaks in 
the back door'' through the restoration planning process by allowing 
the option to value lost services while not valuing the services 
gained.
    Response: NOAA believes that the conditions under which the 
trustees may employ the valuation scaling approach are sufficiently 
specified in Sec. 990.53(d). Under the valuation scaling approach, 
trustees explicitly or implicitly measure the value of both the natural 
resources/services lost and natural resources/services provided by the 
selected restoration action(s). The one exception is when the valuation 
of the replacement natural resources/services cannot be performed 
within a reasonable time frame or at reasonable cost, but the valuation 
of natural resources/services lost is practicable.
    Comment: Some commenters requested clarification as to what 
conditions invoke the ``unreasonable cost'' exception in which trustees 
may use the interim loss in value to scale the restoration claim, 
rather than scaling the action by demonstrating that an action of the 
chosen size will provide benefits equal to the interim losses from the 
injury.
    Response: Assessment costs are deemed to be unreasonable if 
trustees fail to follow the guidance provided in the rule. For example, 
the additional costs of a procedure must be related to the information 
expected to be gained with that procedure, as provided in Sec. 990.27 
of the rule. These standards are intended to avoid excessive costs in 
an assessment.
    Comment: Several commenters pointed out that the rule does not, but 
should, explicitly provide for the use of valuation procedures when a 
responsible party challenges the cost of service-to-service restoration 
as disproportionate to the value of the damages.
    Response: Section 990.14(c)(5) allows responsible parties to 
request assessment procedures other than those selected by the 
trustees, if they follow the procedures for making the request in 
Sec. 990.14(c)(5) and the alternative procedures meet the standards for 
acceptable procedures provided in Sec. 990.27.
    Comment: Several commenters argued that the responsible party 
should not have the unilateral right to require economic valuation of 
restoration options. The commenters noted that such an option would 
result in the responsible party having more rights than the trustees to 
choose assessment procedures, which would be improper and unfair. The 
commenters stated that the trustees, in all cases, should have the 
right to use valuation procedures.
    Another commenter argued that the option for the responsible party 
to request a more specific procedure contravenes OPA, which requires 
trustees to perform assessments, advance costs, file, and establish 
claims for damages.
    Response: The rule has been revised to allow the trustees to reject 
the responsible parties' proposed alternate assessment procedures if 
they do not meet the criteria specified under Sec. 990.14 (c)(5)(iii), 
and thus the requirements for acceptable procedures described in 
Sec. 990.27.
Discounting and Uncertainty
Addressing Uncertainty
    Comment: Several commenters stated that trustees should be required 
to address uncertainties in measures of losses and gains as a separate 
matter from discounting. Some of these commenters suggested addressing 
uncertainties using a Monte Carlo framework. The commenters pointed out 
that differences in discount rates are driven by financial risks, which 
are unrelated to uncertainties in measuring lost or replacement service 
flows. The commenters stated that the use of risk-adjusted discount 
rates should be eliminated from the rule.
    Other commenters, however, suggested that the language ``must 
address the uncertainties associated with the predicted consequences of 
the alternative'' should be revised to read ``should address when 
possible in a valid manner.''
    Response: NOAA agrees that, where feasible, the trustees should use 
risk-adjusted measures of losses and gains, in conjunction with a 
riskless rate of discount reflecting the social rate of time preference 
for natural resources. However, in cases where the streams of losses 
and gains cannot be adequately adjusted for risks, trustees should use 
a discount rate that incorporates a suitable risk adjustment to the 
riskless rate. NOAA agrees that in some cases, Monte Carlo analysis may 
be an appropriate approach to addressing uncertainties. The discount 
rate employed in a scaling application is to reflect the social rate of 
time preference for the injured and replacement natural resources and/
or services. Because of the difficulty in determining the rate of time 
preference for goods, such as natural resources, that are not generally 
sold in a market, a real rate of 3% is recommended as a riskless rate, 
unless justification is presented for a rate more appropriate for the 
specific context.
Use of ``Over-Compensation''
    Comment: One commenter questioned the amount of ``over-
compensation'' that should be included in the restoration plan as a 
contingency for possible lack of restoration action success. The 
commenter suggested that such over-compensation could be used to 
account for restoration aspects that do not produce the expected 
results or fail completely. The commenter suggested that responsible 
parties would agree to over-compensation if doing so would provide 
absolute closure for the responsible party.
    Response: This comment basically restates the requirement in 
Sec. 990.53(c)(4) that trustees must evaluate the uncertainties 
associated with the projected consequences of the restoration action. 
The selected restoration action(s) should be scaled to incorporate the 
reasonable range of uncertainty associated with the level of natural 
resources/services that will be provided by the action(s). 

[[Page 489]]

Bounds on discount rates
    Comment: Several commenters suggested that the rule should place 
some bounds on an appropriate discount rate for societal time 
preference. These and other commenters also requested guidance on risk 
and uncertainty.
    One commenter suggested that, in the case where services will be 
lost or interrupted for a relatively short period of time, trustees 
should use the OMB projected rates of return on 20-year U.S. Treasury 
bills, rather than a long-term average of past rates. The commenter 
noted that a long-term average may be unduly influenced by unusually 
high or low past rates arising from past economic circumstances not 
applicable to the period in question. The commenter suggested that, 
should the final rule mandate a long-term average, trustees should 
calculate that average as a moving average to give more weight to 
recent rates. The commenter also recommended that, in the event that 
the damages must be estimated for an extended period, the most distant 
projection available from OMB be used. Finally, the commenter suggested 
that the discount rates for HEA should be real, after-tax, riskless 
rates.
    Some commenters suggested that a discussion should be placed in the 
preamble that describes a discount range of 3% to 7% as generally 
reasonable for most future benefits associated with restoration 
actions, and a range of 0% to 3% for discount rates associated with 
natural resource and/or service losses. The commenters stated that it 
is appropriate to discount future losses at a very low rate, if at all.
    Some commenters suggested that the procedure for determining a 
discount rate should reflect the guidelines for water resource projects 
since those projects provide a much closer analogy to natural resource 
damage assessments than the lease-purchase or benefit/cost and cost-
effectiveness analysis currently in use.
    Response: For scaling restoration actions, the appropriate rate of 
discount is the social rate of time preference for the injured natural 
resources, i.e., the rate at which society is willing to trade off 
natural resources during the period of the incident for natural 
resources during the period of restoration action. NOAA is recommending 
that use a 3% discount rate as a proxy for the social rate of time 
preference (unless justification for a more appropriate rate is 
presented).
    Because the public use of natural resources does not occur 
primarily through private market transactions, consumers do not 
necessarily adjust their inter-temporal consumption of natural 
resources in response to the relevant intertemporal financial trade-
offs available to them, as represented by the U.S. Treasury rates. U.S. 
Treasury rates (both realized and projected future rates) have been 
relatively volatile over the last few years, even for long-term rates. 
There is no particular reason to assume that the volatility of the 
observed financial rates carries over to the social rate of time 
preference for these non-marketed goods.
    NOAA is considering the development of a separate guidance document 
on resource-to-resource, service-to-service, and valuation scaling 
procedures that would address issues pertaining to discounting, risk, 
and uncertainty in greater detail.
    Comment: One commenter also stated support for the use of state and 
tribal borrowing rates in calculation of present value of assessment 
costs. This commenter agreed with the use of discount rates that 
represent the yield on recoveries available to the trustees. Several 
commenters noted that, when the state is the lead administrative 
trustee, the corresponding state borrowing rate should be used as the 
discount rate instead of the U.S. Treasury rate.
    Response: NOAA supports the use of state or tribal rates where 
appropriate. However, designation of the lead administrative trustee is 
primarily an administrative decision and should not substantively 
affect the choice of an appropriate discount rate, except to the extent 
that it affects the yield on recoveries available to trustees.
Discounting and HEA
    Some commenters suggested that the rule should clarify the role of 
discount rates in HEA. The commenters stated that the rule should 
explicitly state the assumptions that the unit dollar value of forgone 
services equals the unit dollar value of the restoration services and 
these dollar values do not change over time, in order for financial 
discount rates to be appropriate in HEA models.
    Response: NOAA does not disagree with the substance of these 
comments, but believes that such a level of detail regarding specific 
procedures is most appropriately included in guidance documents, rather 
than the rule itself.
Sensitivity of Scale to Discount Rate Choice
    Comment: Some commenters noted that the choice of discount rate is 
largely responsible for the resulting size of the compensatory 
restoration action.
    Response: The sensitivity of the scale of compensatory restoration 
action to a given discount rate will depend on the relationships among 
a number of factors including, but not limited to, the duration of the 
injury, the time necessary for the compensatory restoration action(s) 
to provide full service flows, and the lifespan of the compensatory 
restoration action(s).
Choice of Appropriate Inflation Index
    Comment: One commenter recommended using the Gross Domestic Product 
(GDP) deflator when the adjustment is being made to determine the 
present value of future restoration costs or when a stream of future 
service flows is being discounted, and using the Consumer Price Index 
when lost consumer surplus requires discounting. The commenter stated 
that when a clear distinction cannot be drawn, the GDP deflator should 
be used because it is more general.
    Response: NOAA believes that this structure for scaling restoration 
actions is generally acceptable and consistent with the rule language. 
However, by definition, a quantity of services is already in real 
terms. Quantities of services generally will not need adjustment with a 
price index because they only appear in the scaling calculation, which 
will generally be carried out in real terms (with a real discount 
rate). For purposes of calculating restoration costs, more specific 
indices, such as construction and employment cost indices, may be used 
where appropriate and available.

Section 990.54  Restoration Selection--Evaluation of Alternatives

Selection Criteria for Alternatives
    Comment: Many commenters had suggestions for revisions to the 
selection criteria for restoration alternatives. These commenters 
argued that the selection criteria in the rule provide no overall 
standard for selection of alternatives. Some commenters suggested that 
without standards for evaluating and selecting restoration 
alternatives, there are no meaningful bounds on responsible party 
liability.
    Other commenters, however, argued that the rule should establish no 
specific ``weight'' for any of the selection factors, that such a 
requirement would limit the flexibility required for restoration and 
could undermine the validity of the whole process. One commenter stated 
that the requirement to minimize damages is unnecessary so long as 
trustees are required to document the relevant factors and tradeoffs in 
selecting a restoration alternative and 

[[Page 490]]
explain their selection in response to any public comments prior to the 
implementation of the restoration plan.
    Response: NOAA believes that the modified criteria for evaluation 
of restoration alternatives presented in Sec. 990.54 in the final rule 
are sufficient to ensure that selected alternatives are reasonable, 
cost-effective, and adequate to compensate the environment and public 
for injuries to natural resources and/or services. The selection of 
restoration actions that truly make the environment and public whole is 
a highly incident-specific analysis, and NOAA believes that prescribing 
a rigid hierarchy of selection criteria will not facilitate achieving 
OPA's compensatory goal. Trustees must evaluate the numerous selection 
criteria listed in the rule, at a minimum, and describe in the draft 
restoration plan how each factor played in the selection and 
elimination of alternatives.
    Comment: Some commenters pointed out that, if all the parties agree 
to a restoration solution, the trustees should not have to develop 
numerous restoration alternatives.
    Response: Under the rule, trustees may settle claims for natural 
resource damages at any time, provided that the settlement is adequate 
in the judgment of the trustees to satisfy the goal of OPA and is in 
the public interest. However, it is expected that even early settlement 
will entail an evaluation of available restoration actions in order to 
meet the varied interests of all parties.
Cost Effectiveness
    Comment: Some commenters argued that the rule should specifically 
require cost effectiveness as the major selection criterion. Other 
commenters disagreed, stating that a simple requirement to select the 
most ``cost-effective'' option is too narrow and should not be 
required. These commenters argued that cost-effectiveness alone 
disregards distributional differences and ecological integrity, which 
may well leave a natural resource seriously impaired. The commenters 
suggested that the selection decision should be driven by criteria that 
emphasize making the environment and public whole, both in aggregate 
and by user group.
    Response: NOAA fully supports choosing the least costly restoration 
action(s) among equivalent alternatives. However, NOAA believes that 
prescribing a rigid hierarchy of selection criteria, including 
designating one criterion as always singularly more important than 
others, will not facilitate achieving OPA's compensatory goal.
Minimization of Costs/Damages
    Comment: A number of commenters stated that, when sufficient data 
on costs and benefits are available, trustees should ultimately base 
their selection of restoration alternatives on a cost-effective 
approach that will minimize total damages or make the public whole at 
the least cost. The commenters stated that selection of the alternative 
that minimizes damages is consistent with economic theory, OPA's 
legislative history, and the decision in Ohio. Many other commenters 
opposed any strict requirement to minimize damages as inconsistent with 
the statutory language of OPA (section 1106(d)(1)) as well as the 
holding in Ohio overturning the approach contained in the 1986 version 
of the CERCLA rule that directed trustees to recover the lesser of 
restoration cost or diminution in value. The commenters stated that OPA 
contains the statutory preference of restoration, and not the 
minimization of damages.
    Response: NOAA supports the consideration of the relationship 
between costs and benefits when selecting a preferred restoration 
alternative(s). However, NOAA does not support reducing the selection 
process to a strict cost-benefit or cost-minimization decision rule. 
The rule requires trustees to identify and consider a reasonable range 
of restoration alternatives for a given incident, or for individual 
injuries of an incident. The rule further enumerates specific criteria 
that must be considered by trustees in selecting preferred restoration 
approaches from the range of alternatives. These criteria include 
feasibility, likelihood of success, effectiveness, and speed with which 
baseline will be returned, benefits to multiple natural resources, and 
cost. Consideration of these criteria will constitute a qualitative 
cost-benefit analysis that is appropriate to the task at hand--
restoration--and will ensure that cost-effective actions are selected.
Qualitative Assessments
    Comment: Some commenters stated that benefits should be required to 
be quantified in cases where it is practicable. One commenter suggested 
that, for cases where benefits cannot be measured at reasonable cost, 
the assessment should be qualitative; however, qualitative assessment 
should not be used to justify very costly restoration.
    Response: The resource-to-resource, service-to-service, and 
valuation scaling approaches all inherently involve the quantification 
of benefits of the selected restoration alternative(s), either in terms 
of quantifying the level of natural resources/services or the value 
provided by the restoration actions. The evaluation standards for 
selecting the preferred alternative(s) presented in Sec. 990.54 
represent a combination of quantitative and qualitative factors.
Not Grossly Disproportionate
    Comment: A number of commenters stated that the trustees should 
also be required to compare costs to benefits/value of services, to 
determine whether the cost of the alternative being evaluated is 
grossly disproportionate to the value of the injured natural resources 
or, alternatively, to the benefits of that alternative. Some commenters 
requested that NOAA clarify the term ``grossly disproportionate'' and 
state whether it has a role in the process, especially in the 
compensatory restoration process.
    Response: NOAA believes that the evaluation and selection of 
restoration alternatives according to the factors provided in the rule 
will ensure that preferred actions are commensurate with the value of 
natural resource losses.
Reinstatement Costs
    Comment: One commenter argued that restoration should be based on 
the reasonable cost of reinstatement of the environment under the 
international regime.
    Response: The international regime allowing recovery of reasonable 
reinstatement costs generally incorporates only direct restoration of 
natural resources directly injured by an incident, which is more narrow 
than actions authorized by OPA and thus would not be appropriate for 
this rule.
Violation of Laws and Regulations
    Comment: Another commenter argued that the criterion concerning 
violation of laws or regulations be taken into account in determining 
the viability of a particular alternative, rather than in determining 
which restoration alternative(s) is preferred.
    Response: NOAA agrees that legality of alternatives is a screening 
criterion to eliminate alternatives from consideration, and has amended 
Sec. 990.53 of the rule to reflect this.
Effects on Public Health and Safety
    Comment: Some commenters noted that any alternative considered 
should not exacerbate natural resource injuries or otherwise cause 
adverse effects on public health, safety or the environment. 

[[Page 491]]

    Response: NOAA agrees. Section 990.54 of the rule directly states 
that these factors must be considered by trustees when evaluating 
restoration alternatives.
Pilot Projects
    Comment: Several commenters suggested that the provision allowing 
pilot projects should be revised, or at least clarified. Some of the 
commenters argued that the responsible parties should not be required 
to fund pilot projects. Other commenters stated that pilot projects 
should only be allowed where they can be shown to be reasonable, 
relevant, and linked directly to the incident of concern.
    Response: The rule has been clarified to indicate that pilot 
projects may only be undertaken when additional information is needed 
to identify and evaluate the feasibility or likelihood of success of 
restoration alternatives, and where they can be undertaken in a 
reasonable time frame and at a reasonable cost.

Section 990.55--Restoration Selection--Preparation of a Draft and Final 
Restoration Plan

    Comment: One commenter expressed concern about placing injury 
determination and quantification information in the Draft Restoration 
Plan, making this information available to the public and the 
responsible party, all within the context of civil litigation. The 
commenter recommends that trustees be granted some litigation privilege 
to protect their potential claim.
    Response: This information, if relied upon by the trustees in 
decisionmaking, is essential to meaningful public involvement.
    Comment: Some commenters suggested that the proposed restoration 
planning process prior to presenting a demand to responsible parties 
places unreasonable expectations on the parties. These commenters 
suggested that the rule naively assumes that restoration efforts can be 
described in terms of a detailed restoration plan in a short period of 
time after completing assessment studies. These commenters, noting the 
Exxon Valdez experience, suggested that this will not always be 
practicable. The commenters requested that the rule provide trustees 
authority to make additions, substitutions, or other modifications to 
the restoration plan based on experience and additional information 
gained in the implementation phase.
    Response: The extent to which trustees can, and need to, develop 
specific, detailed workplans to implement restoration actions as part 
of draft or final restoration plans will depend on the circumstances of 
the incident, the nature of the preferred restoration actions, and 
trustees' relationship with responsible parties. It may be possible to 
reach binding agreements regarding the nature and scale of actions that 
will constitute restoration and compensation, with an agreed upon 
timetable for developing the implementation plans for those actions. 
Often it will be advantageous to all parties that the responsible 
parties or their representatives develop the workplans based on the 
trustees' goals and objectives. However, if a cooperative relationship 
has not been possible or effective, and trustees expect they may have 
to implement restoration themselves or litigate to recover the funds to 
implement restoration, it is in the best interests of the public for 
trustees to have a plan that provides the most accurate estimate of 
required restoration costs possible. Depending on the preferred 
alternative, detailed work or implementation plans may have been 
developed for prior actions, parts or all of which may be applicable to 
the incident at hand.
    Comment: Some commenters disagreed with a prescribed minimum public 
comment period for all incidents, while others stated that 30 days 
should be an absolute requirement, with a corresponding requirement 
that trustees respond to public comments in the subsequent 30 days.
    Response: NOAA has removed a specific time requirement for a public 
notice and comment period, realizing that the circumstances of 
individual incidents and localities, and in addition the requirements 
for NEPA or other regulatory compliance, are so varied that any one 
specified time may be inappropriate.
    Comment: A number of commenters stated their belief that 
restoration monitoring costs are not recoverable as natural resource 
damages. These commenters cite judicial decisions barring oversight 
costs as recoverable response costs under CERCLA, and an explicit 
reference to ``monitoring'' within OPA, respecting recovery from the 
Oil Spill Liability Trust Fund of the costs of monitoring removal 
actions. Other commenters agreed that monitoring is essential to the 
successful implementation of restoration, and urged that rule language 
be more explicit regarding the scope, extent, and purpose of 
recoverable monitoring costs. These commenters suggested that 
monitoring costs should be related to the value of the natural resource 
being restored, that monitoring should only be conducted long enough to 
ensure that the action is proceeding as planned, and that the rule 
should provide for performance bonds if implementation is conducted by 
responsible parties.
    Response: NOAA believes that restoration monitoring costs are a 
recoverable component of natural resource damages. Monitoring is 
essential to ensure that restoration actions accomplish their intended 
goals and objectives and do not cause unanticipated harm to the 
environment or public health. In addition, monitoring is essential to 
determine whether the terms of restoration agreements have been met, 
upon which a release from liability is premised. NOAA agrees that the 
rule itself should speak to the purposes and scope of monitoring, and 
has amended the rule accordingly.

Section 990.56--Use of Regional Restoration Plans or Existing 
Restoration Projects

    Comment: Several commenters argued that using Regional Restoration 
Plans to spend money generated from simplified assessments is contrary 
to OPA and traditional tort principles of individualized injury and 
causation. Some commenters noted that the legislative history of OPA 
demonstrates a rejection of such regional approaches to restoration 
(H.R. 1465, 1st Cong., 1st Sess. (1989), a predecessor bill to OPA, 
contained a natural resource damage civil penalty section (1006(g)(4)) 
that allowed funds recovered to go to ``general enhancement of the 
ecosystem''). The commenters made the point that common law tort 
principles applicable under OPA require damages to be used to restore a 
specific injury to a specific natural resource in order to be 
compensatory rather than punitive.
    Some commenters argued that, for small incidents where incident-
specific plans would be unreasonable, trustees should allow natural 
recovery. The commenters stated that there is no OPA mandate to restore 
injured natural resources and services regardless of the scope and 
scale of those injuries, and that, in such cases, OPA firmly implies 
liability for small incidents is de minimis in the absence of actual 
evidence of significant natural resource services losses. One commenter 
suggested that regional plans could not possibly identify precisely 
where discharged oil would go, and in the actual event of an incident, 
a regional plan will likely be inapplicable. Other commenters noted 
that before a regional plan could be used, a link between the actual 
injury and the plan must be established.
    Some commenters argued that such plans would be self-fulfilling and 


[[Page 492]]
become a proxy for investigating injuries. Several commenters noted 
that, under these provisions, trustees could amass large sums of money 
to undertake various quasi-public works projects, having no connection 
whatsoever to any of the incident sites. These commenters argued that 
this provision will allow trustees to essentially do an ``end run'' 
around the legislative process and to pursue their own ends, which is 
clearly not authorized by OPA.
    One commenter argued that this provision would be fundamentally 
unfair to responsible parties who will have no opportunity to 
participate in the development of these regional plans.
    Several commenters strongly encouraged the use of Regional 
Restoration Plans, stating that trustees must have multiple options 
available for redressing injuries. These commenters stated that 
Regional Restoration Plans allow trustees to maximize the effectiveness 
of a restoration action by combining recoveries from other incidents. 
Some of these commenters noted that only Regional Restoration Plans can 
provide for an effective response to the cumulative impacts of many 
small incidents. These commenters argued that such plans are clearly 
within the ambit of OPA and that there is no provision in OPA requiring 
that damages collected be spent remediating the specific site injured. 
In fact, the commenters noted that contrary intent is evident in 
Congress' inclusion of acquisition of equivalent natural resources as a 
restoration option.
    Several commenters expressed concern that the rule limits use of a 
Regional Restoration Plan to situations where a simplified assessment 
procedure was used. The commenters argued that whether damages from a 
specific incident are best used independently, or to fund part of a 
Regional Restoration Plan, is a separate issue that is not related to 
the type of assessment procedure used. They stated that, if 
implementation of a project plan provides suitable compensation for 
injuries that occurred as a result of a discharge, trustees should be 
able to use that specific project plan.
    Other commenters expressed concern about restrictive language 
related to ``commingling'' of simplified assessment recoveries and the 
use of newly developed Regional Restoration Plans. These commenters 
stated that it would be difficult at best to define ``similar'' natural 
resources or services in relation to small incident impacts and that 
pooling of small incident damages should not be tied to such a 
criterion. The commenters suggested that the only criterion for pooling 
of small incident settlements should be the lack of affordable and 
efficient restoration alternatives given the size of the damage 
recovery.
    One commenter requested more guidance in the rule for criteria for 
developing and implementing such plans. One commenter said the proposed 
rule was unclear about the calculation of appropriate costs for cases 
where the formulas or type A models were used and even more confusing 
where calculation of such costs are necessary for the implementation of 
a regional restoration plan. Another commenter stated that the costs of 
developing regional plans is not an appropriate use of recovered 
natural resource damages.
    Commenters proposed a number of guidelines to permit regional 
restoration planning under OPA, when the trustee and the responsible 
party agree that it is appropriate, including: (1) There is an 
ecological relationship between the injured natural resources and the 
objectives of the regional restoration plan; (2) on-site restoration is 
either not technically feasible or not cost effective; (3) the level of 
services provided by the proposed restoration action is substantially 
similar to that provided by the injured natural resources; (4) the 
restoration measures will be beneficial given the potential for natural 
recovery; (5) the measures are likely to be successful in significantly 
accelerating the natural recovery of the injured population or area; 
(6) the proposal will not itself result in degradation of the 
environment; and (7) the cost of the program is not out of proportion 
to the value of the natural resources.
    One commenter asked whether NOAA will initiate a regional 
restoration planning process and identify areas where regional plans 
could be of high priority, or whether it is incumbent upon industry and 
state trustees to do so. Another commenter noted that pre-incident 
planning may not be achievable in all cases, and recommended NOAA's 
rule endorse post-incident development of Regional Restoration Plans, 
with public review and comment, for application of subsequent 
recoveries.
    Some commenters suggested that regional restoration plans identify 
areas within the region in need of restoration or acquisition that are 
important to various species of fish and wildlife vulnerable to 
incidents and prioritize them by cost of restoration. In addition, this 
commenter suggested that the trustees be required to make a showing 
that it is environmentally ineffective to restore the injured natural 
resource and that restoration of another would provide substantially 
greater benefit to the ecology injured by the incident.
    Some commenters suggested the importance of early public 
involvement in the prioritization of areas most heavily injured by 
incidents and to ensure that the restored areas serve the same human 
populations as those served by the injured natural resources. One 
commenter noted that Regional Restoration Plans inappropriately exclude 
local participation in restoration planning, as large-scale efforts 
would bar smaller attempts.
    Response: NOAA agrees that OPA intends that responsible parties be 
held liable only for restoration needed to redress the injuries caused 
by specific incidents. Injury must be determined under the rule for all 
incidents. However, NOAA also views regional restoration planning as 
one means to resolve liability for injuries in an expeditious and cost-
effective manner.
    The rule has been amended to make it clear that in no event will 
the use of a regional restoration plan violate OPA's limitation that 
natural resource damages be used solely to restore, replace, 
rehabilitate, or acquire the equivalent of the natural resources and/or 
services injured by an incident. OPA's legislative history defines 
``equivalent'' natural resources as those that will enhance the 
recovery, productivity, and survival of the ecosystem affected by a 
discharge, preferably in proximity to the affected area (Conference 
Report at 109). The requirements in the rule are strict enough to 
ensure that regional restoration plans or other existing restoration 
projects used in lieu of an incident-specific plan do not violate OPA's 
constraints on expenditure of damages. Whether an existing plan or 
project represents restoration, rehabilitation, replacement, or 
acquisition of the equivalent will depend on the nature of the incident 
and the restoration plan or project.
    The final rule also requires that use of possible restoration 
actions in an existing plan or project be evaluated within the range of 
restoration alternatives that trustees are required to consider, 
including natural recovery. But the rule recognizes that it may be in 
the best interests of all parties not to expend funds developing 
incident-specific restoration plans in all instances.
    Experience with past incidents has shown that responsible parties 
have often identified existing planned or proposed environmental 
restoration actions that may have been developed by local governmental 
natural resource agencies or environmental groups, and 

[[Page 493]]
proposed to fund these actions as compensation for the injuries of an 
incident. NOAA intends regional restoration planning to build on this 
cost-effective approach to restoration planning, by developing 
databases that identify existing or desirable unfunded actions in a 
manner that will allow an appropriate linkage between actions and 
particular incidents. The geographic scale of a ``regional'' plan 
database will likely vary with locality, variability of local 
environmental conditions, and expected local impacts from incidents, 
but actions can be scrutinized in terms of the type and scale of 
natural resources and/or services they are expected to provide. If 
projects match the incident in terms of the scale of injuries and the 
scale of expected natural resources or services that will be provided, 
responsible parties may be given the option to fund or implement the 
project. If the scale of the incident and the project do not appear 
consistent, trustees may request that responsible parties pay damages 
equal to the relative proportion of the total cost of the project that 
would compensate for the scale of injuries from the incident. Such 
partial recoveries may be pooled until funding is adequate to implement 
the project.
    The rule has been revised to eliminate restrictions on the type of 
assessment procedures that will enable use of a regional restoration 
plan or other existing restoration project, and have omitted any 
restrictions on how partial recoveries may be pooled or commingled 
pending collection of adequate funds to implement a project.
    Finally, the rule is clear in providing for responsible party 
participation in identification of appropriate existing plans or 
projects that will resolve their liability for the injuries from a 
particular incident. The rule also provides that potentially 
responsible parties be given an opportunity to participate in any pre-
incident development of regional restoration plans or existing 
restoration project databases.

Subpart F--Restoration Implementation Phase

Section 990.60--Purpose

    Comment: Some commenters noted that the provision requiring Final 
Restoration Plans in the context of incident-specific assessments is a 
significant improvement over past proposals, since the current proposal 
bases the liability claim on projected costs of implementing the Final 
Restoration Plan, rather than developing a financial payment for 
liability and then deciding what to do with the money. Some of these 
commenters had argued that the 1994 proposal, with the Final 
Restoration Plan being developed in the Post-Assessment Phase, violated 
OPA by allowing trustees to spend recoveries on non-site-specific 
restoration actions, i.e., implementing restoration plans other than 
those developed by the trustees in the assessment phase and that 
supported the damage claim.
    Response: NOAA agrees that recoveries will be used to implement the 
restoration plans developed through the assessment, except where new 
information received after completion of the plan indicates that the 
plan needs to be modified to conform to the standards of this rule. Any 
such modification must be made by a public process documented in the 
administrative record for restoration implementation.

Section 990.61--Administrative Record

    Comment: One commenter approved of opening a parallel 
administrative record for the implementation phase to ensure that there 
is accurate and complete accountability of all activities and costs. 
The commenter suggested, however, that the provisions allowing addition 
of documents to the record is questionable and should be deleted. The 
commenter noted that the trustees should be required to document their 
implementation or the responsible party's implementation of the 
restoration plan, that the monitoring requirements were adhered to, and 
that cost effective or cost beneficial requirements were followed. The 
commenter suggested that the rule also should specify the documents 
expected to be placed in the administrative record by the trustees.
    Response: The final rule restricts augmenting the closed record of 
assessment except where new information raises significant issues 
regarding final restoration decisions, is not duplicative of 
information already in the record, and is offered by an interested 
party that did not receive actual or constructive notice of the 
availability of the draft plan. NOAA agrees with the commenter's 
suggestions to provide some minimum requirements for documents or 
determinations to be included in the Implementation Phase record, and 
has amended the rule to include this guidance.

Section 990.62--Presenting a Demand

    Comment: Several commenters complained that the rule language is 
vague in terms of discretion over the form of a demand presented to 
responsible party. These commenters noted that restoration actions 
involve management of natural resources and numerous laws at federal, 
state, tribal, and foreign levels that require that specific agencies 
maintain the responsibility for decisions involving management of 
natural resources. The commenters argued that NOAA cannot delegate this 
responsibility away from trustees to responsible parties. The 
commenters stated that the trustee should not be required in every case 
to go first to the responsible party for restoration implementation, 
but should evaluate, prior to commencing implementation of restoration 
actions, the most efficient procedure of implementing the plan. This 
evaluation should include consideration of the responsible party's 
ability to accomplish effective conduct of the restoration actions.
    Several other commenters strongly supported the provisions allowing 
the responsible party to either implement the restoration plan or pay 
damages. The commenters also stated that linking liability to the 
responsible party's implementation of a plan is a significant 
improvement over earlier proposals.
    Another commenter asked why there are different standards for 
allowing a responsible party to implement all or part of an incident-
specific versus a Regional Restoration Plan.
    Response: The rule does not delegate any essential trustee 
functions or responsibilities to responsible parties, nor does it 
create any inalienable rights in responsible parties with respect to 
implementation of restoration. This provision in the rule recognizes 
that responsible parties or their agents may be far better equipped to 
implement restoration promptly and cost-effectively, given certain 
constraints on governmental spending and contracting authorities. The 
rule also recognizes that trustees must act responsibly in allowing 
responsible parties to implement restoration, and this decision 
regarding participation should be evaluated according to at least the 
same criteria suggested in Sec. 990.14(c) for determining the scope of 
responsible party participation in any stage of the assessment. The 
rule requires trustees to identify performance criteria to gauge the 
success of restoration efforts, and encourages monitoring and oversight 
to confirm that restoration actions are carried out as intended in 
agreements with the responsible party.
    The rule has been amended to remove the unintended differences in 
standards for responsible party implementation of incident-specific 
versus regional restoration plans. 

[[Page 494]]


Prejudgment Interest

    Comment: Several commenters suggested that more flexibility must be 
added to address those circumstances when a substantial period of time 
elapses from the date the demand for payment is made to the date 
payment is actually made; in such cases, trustees should be able to use 
date of payment as the time to which to discount future costs or 
inflate ``present'' cost estimates to present value of the restoration 
action.
    Response: This rule addresses interest up to the point that the 
formal demand is presented to the responsible parties. Section 1005 of 
OPA (33 U.S.C. 2705) addresses the payment of pre-judgment interest 
from the point the demand is made until the claim is paid.
    Comment: Some commenters argued that interest computed on past 
costs amounts to prejudgment interest and section 1005 of OPA (33 
U.S.C. 2705) provides that such interest runs only from 30 days after 
claim is presented and is to be paid at a commercial paper rate. 
Therefore, the commenters stated that the rule cannot allow recovery of 
interest on periods prior to demand, which would give trustees 
prejudgment interest in excess of that which Congress deemed proper.
    Response: NOAA notes that interest recovered on past costs 
represents lost opportunity costs for the trustees, intended to 
encourage prompt payment of claims. Such a recovery is not an 
inappropriate recovery of prejudgment interest.

Section 990.64--Unsatisfied Demands

    Comment: Several commenters stated that NOAA should clarify that 
uncompensated financial damages for compensatory restoration, which is 
intended to represent compensation for diminution in value, may not be 
sought from the Oil Spill Liability Trust Fund (Fund); only site-
specific plans for primary restoration may be paid from that Fund.
    Response: The Oil Spill Liability Trust Fund (Fund) is not 
available to federal trustees for payment of uncompensated damages 
under section 1012(a)(4) of OPA (33 U.S.C. 2712(a)(4)) (see Matter of 
USCG-OSLTF, B-255979, 1995 Comp. Gen. LEXIS 670 (October 30, 1995)). 
However, federal trustees may seek an appropriation from the Fund for 
implementation of restoration plans. The rule does not provide for 
recovery of monetized damages, but does provide for the use of 
restoration actions that will restore, replace, rehabilitate, or 
acquire equivalent of interim lost services.
    Comment: Several commenters suggested that the language allowing 
the responsible party to agree to a demand in order to forestall legal 
action should be changed to require a responsible party to either pay 
the demand or enter into an enforceable agreement within 90 calendar 
days after the trustees present the demand to perform services.
    Response: NOAA agrees that the suggestion is a useful clarification 
of OPA's requirements in light of the rule's allowance for responsible 
party implementation of restoration actions.
    Comment: One commenter strongly objected to the requirement that 
trustees cannot file a civil judicial action until 90 calendar days 
after presentation of the demand to the responsible party. This 
commenter argued that this provision has no statutory support, would 
serve no purpose, and might prove to be a problem for statute of 
limitations considerations.
    Response: NOAA believes that the contested provision is consistent 
with the plain meaning of section 1013(c) of OPA (33 U.S.C. 2713(c)).

Section 990.65--Account

    Comment: Some commenters suggested that the rule should specify 
that administrative costs associated with setting up a trustee account 
are compensable. Some commenters suggested that, if the damage amount 
is not placed in an interest-bearing account, the rule should allow 
adjustment to the appropriate state rate.
    Response: NOAA notes that recovery is provided by OPA for costs 
incurred as a result of an incident. Therefore, the costs associated 
with setting up accounts are also recoverable. Also, NOAA agrees that 
adjustments should be made if damages are not placed in an interest-
bearing account.
    Comment: Some commenters expressed support for the idea of creating 
separate, interest-bearing accounts to hold recovered sums. One of 
these commenters, however, stated that joint trust accounts can be a 
problem between state and federal trustees, if the accounts are 
required to be registered under a federal court. The commenter 
suggested that joint recoveries should be exempt from the requirements 
of the Miscellaneous Receipts Act, and that NOAA should explicitly 
allow for administration of joint restoration accounts by reputable 
non-profit organizations that address restoration/replacement/
acquisition types of activities at local, state, or national levels. 
Some of these commenters asked for clarification as to why escrow 
accounts could be used. One commenter stated that interest accrued on 
these accounts should be required to be used for restoration.
    Response: The rule explicitly allows the use of such accounts. 
Also, interest earned on recoveries (not including recoveries for past 
costs incurred) should be used only for restoration.
    Comment: Some commenters strongly encouraged NOAA to provide 
guidance on implementing accounting procedures, although there was 
concern that rigorous accounting procedures would be expensive for 
trustees and thus recovery for accounting costs should be allowed.
    Response: In 1986, EPA implemented Financial Management Procedures 
for Documenting Superfund Costs. This document is available from the 
Office of the Comptroller, Financial Management Division, Superfund 
Accounting Branch. These procedures provide guidance to ensure that 
documentation of EPA's costs for cleaning up Superfund sites are 
complete and accurate and can be furnished if litigation is required. 
These procedures are also relevant guidance to trustees on procedures 
of recordkeeping that will satisfy the requirement that costs be 
appropriate/accurate/reasonable. NOAA recognizes that certain expenses 
are inherent in any cost-tracking system. Recovering such costs as part 
of the assessment and restoration implementation costs is appropriate 
since it enables a trustee to demonstrate when, how and where funds for 
natural resource restoration have been expended, therefore theses costs 
are recoverable.
    Trustees must maintain appropriate accounting and reporting 
procedures to keep track of the use of sums recovered. As determined by 
the trustee, brief reports on the status of the sums recovered and 
expenditures for particular damage assessment or restoration activities 
may be reported in the administrative record for the restoration phase.
    Comment: One commenter noted that there is no definition of 
``excess damages'' in the proposed rule, and requested that the rule 
explicitly state that excess damages must not be collected, or, if 
collected, must be returned to the responsible party.

[[Page 495]]

    Response: NOAA believes that damages will never be ``excessive'' or 
in ``excess'' of the costs needed to restore injured natural resources 
and/or services if assessments are conducted in accordance with this 
rule, and restoration is implemented in a timely manner. However, NOAA 
can envision circumstances where unanticipated environmental conditions 
require adjustments to restoration actions, conceivably resulting in 
surplus damages.
    Comment: Several commenters strongly disagreed with the language 
that requires all excess restoration funds to be placed in the Oil 
Spill Liability Trust Fund. These commenters noted that damages are 
generally settled jointly between state and federal trustees and the 
responsible party and that any excess funding should first be available 
for additional restoration. The commenters suggested that the 
responsible party should not expect to recover excess funds unless they 
are willing to pay additional funding for the restoration cases that 
result in deficits (e.g., a contingency fee), due to factors beyond the 
control of the trustees. These commenters recommended, at a minimum, 
that remaining funds should be deposited in both federal and state 
response trust funds, where states have such a fund.
    Response: The rule allows for the recovery of damages required by 
OPA, namely: (1) The cost of restoring, rehabilitating, replacing, or 
acquiring the equivalent of, the injured natural resources and/or 
services pending restoration; (2) the diminution in value of those 
natural resources pending restoration; plus (3) the reasonable cost of 
assessing those damages. The recovery of those three items is not 
excess recovery. Trustees are to use the money to restore, 
rehabilitate, replace, or acquire the equivalent of the injured natural 
resources and/or services provided by those natural resources and to 
reimburse the reasonable costs of conducting the assessment. Any 
recoveries that may be left over after implementing the restoration 
plan must be deposited in the Oil Spill Liability Trust Fund, in 
accordance with the provisions of section 1006(f) of OPA (33 U.S.C. 
2706(f)).

Section 990.66--Additional Considerations

    Comment: One commenter suggested that the final rule establish 
timetables for the development and implementation of restoration plans.
    Response: NOAA disagrees that any time table for developing and 
implementing restoration plans could have broad enough applicability 
for all possible incidents without hampering the process for some 
subset of incidents.
    Comment: Several commenters indicated the importance of monitoring 
and oversight and the need to plan for failure of a restoration plan. 
Other commenters argued that monitoring costs are not recoverable 
because such costs are not mentioned in section 1002 of OPA and, 
therefore, not intended by the statute.
    Response: As discussed in response to comments on the definition of 
reasonable assessment costs, NOAA believes that monitoring and 
oversight costs are recoverable damages. NOAA agrees with the 
importance of monitoring and oversight and has amended the rule to 
specifically discuss the purpose and scope of monitoring and oversight 
activities within the restoration implementation phase.
    Comment: One commenter stated that allowing for reopeners within 
the rule will make it difficult for businesses to anticipate costs and 
create proper reserves. Other commenters questioned the degree to which 
a responsible party could be held accountable for a restoration plan 
selected by the trustees that did not work, requesting that NOAA 
reexamine the propriety of reopeners and raised the question as to who 
should bear the risks inherent in implementing a Restoration Plan. 
Another commenter suggested that the rule provides no standards for 
mid-course corrections, but that such standards are needed. One 
commenter questioned whether a responsible party would be subject to 
the restoration plan if that responsible party had not been involved in 
the development of that plan.
    Response: Reopeners may be required to properly ensure that the 
environment and public are appropriately made whole for the injuries 
from a particular incident. Thus, reopeners should reflect the degree 
of certainty in the assessment of the nature and extent of injuries and 
losses. NOAA also agrees that reopeners must not be used irresponsibly, 
i.e., holding responsible parties accountable for unknowable 
consequences for an indeterminate period of time. Trustees must specify 
criteria upon which restoration actions will be judged successful, so 
that responsible parties may understand the goals and targets for their 
actions. Both parties should strive to identify any uncertainties in 
successful implementation of a plan such that requests for additional 
actions on the part of the responsible party will not likely result. 
NOAA has amended the rule to provide some guidance on the nature of 
performance criteria that trustees should consider in formulating 
agreements with responsible parties.
    Comment: One commenter suggested that the selection of a lead 
trustee to coordinate implementation of restoration should be 
mandatory.
    Response: Section 990.14 of the rule advises identification of a 
lead administrative trustee, or co-lead administrative trustees, for 
all phases of a joint assessment.

Bibliography

NOAA Guidance Documents

    All of the following NOAA Guidance Documents are currently in draft 
form and are expected to be available as Final Guidance Documents 
within a short time following promulgation of this final rule. A Notice 
of Availability will be published in the Federal Register as soon as 
the Final Guidance Documents are complete.

Michel, J. and E. Reinharz. 1994. Preassessment Phase Guidance 
Document. National Oceanic and Atmospheric Administration, Office of 
General Counsel Natural Resources, Damage Assessment Regulations 
Team, Silver Spring, MD.
NOAA. 1993. Restoration Guidance Document for Natural Resource 
Injury Resulting from a Discharge of Oil. National Oceanic and 
Atmospheric Administration, Office of General Counsel Natural 
Resources, Damage Assessment Regulations Team, Silver Spring, MD.
NOAA. 1995. Specifications for Use of the NRDAM/CME Version 2.2 to 
Generate: Compensation Formula for Natural Resource Damage 
Assessments under OPA. National Oceanic and Atmospheric 
Administration, Office of General Counsel Natural Resources, Damage 
Assessment Regulations Team, Silver Spring, MD.
NOAA. 1995. Injury Guidance Document for Natural Resources and 
Services under the Oil Pollution Act of 1990. National Oceanic and 
Atmospheric Administration, Damage Assessment and Restoration 
Program, Silver Spring, MD.
NOAA. 1995. NEPA Compliance in Natural Resource Damage Assessment 
Guidance Document. National Oceanic and Atmospheric Administration, 
Damage Assessment and Restoration Program, Silver Spring, MD.

[[Page 496]]


Department of the Interior Documents

DOI. 1987. Measuring Damages to Coastal and Marine Natural 
Resources: Concepts and Data Relevant to CERCLA Type A Damage 
Assessments (NRDAM/CME technical document). U.S. Department of the 
Interior, Office of Environmental Policy and Compliance, Washington, 
D.C., DOI-14-01-0001-85-C-20, Vol I-II.
DOI. 1993. The CERCLA Type A Natural Resource Damage Assessment 
Model for the Great Lakes Environments (NRDAM/GLE). U.S. Department 
of the Interior, Office of Environmental Policy and Compliance, 
Washington, D.C., Vol I-III.
DOI. 1994. The CERCLA Type A Natural Resource Damage Assessment 
Model for Coastal and Marine Environments (NRDAM/CME). U.S. 
Department of the Interior, Office of Environmental Policy and 
Compliance, Washington, D.C., Vol I-VI.

Appendix A--Considerations To Facilitate the Restoration Process

I. Pre-Incident Planning

General
    NOAA believes that commitment of time, funding, and personnel to 
up-front planning prior to an incident will help ensure that the 
assessment results in appropriate and cost-effective restoration. Thus, 
trustees are encouraged to develop pre-incident plans.
Pre-Incident Plan Contents
    NOAA suggests that pre-incident plans:
    (a) Identify natural resource assessment teams. The restoration 
process requires an interdisciplinary approach to ensure the integrated 
use of science, economics, and law necessary in planning and 
implementing restoration. Trustees are encouraged to identify 
appropriately experienced personnel needed for natural resource 
assessment teams at the area and regional levels.
    Personnel required for natural resource assessment teams should be 
appropriate to the scope and scale of the incident and natural 
resources and/or services injured. For instance, for incidents with 
complicated or long-term ecological injuries, the core team could 
include a natural resource trustee coordinator, restoration expert, 
natural resource biologist, environmental (petroleum) chemist, natural 
resource economist, quality assurance specialist, data manager/sample 
custodian, statistician, natural resource attorney, and administrative 
support specialist. If at all possible, the team should not be ad hoc; 
members should be knowledgeable about relevant statutes and 
regulations, and be able to establish a working relationship with the 
various parties likely to be involved in incidents.
    (b) Establish trustee notification systems. Prompt notification is 
essential for efficient and effective initiation of the restoration 
process. Response personnel are required under the NCP to notify 
trustees whenever natural resources under their jurisdiction or 
management have been, or are likely to be, injured as a result of an 
incident.
    Thus, each trustee should establish emergency notification 
protocols so that the process can be initiated on a 24-hour basis. 
Notification could be coordinated to minimize the number of calls 
response personnel must make to the trustees. Notification protocols 
are also needed within trustee agencies so that appropriate regional 
and local personnel can be informed of an incident. Area and Regional 
Contingency Plans should include contact information for each trustee 
and clear, unambiguous criteria for trustee notification (e.g., all 
incidents, incidents over a certain size, location, etc.).
    (c) Identify likely support services. In many circumstances, 
trustees may require specialized contractor support. For example, 
research vessels may be necessary for sample collection, or outside 
experts may be necessary to design and conduct studies. If, as part of 
pre-incident planning, the trustees can identify appropriate support 
services and pursue contracting procedures that will expedite incident-
specific hiring of contractors, potentially detrimental delays in the 
assessment can be avoided during incidents.
    The types of support and expertise expected to be needed, as well 
as potential contractor and expert names, should be identified as part 
of pre-incident planning. Contracts should be established to allow 
rapid acquisition of contractor services. Identified contractors may 
even be called on to participate in pre-incident planning so that all 
parties are familiar with the specific needs of the restoration 
process.
    Backup services should also be identified since the needs of both 
response and natural resource activities can exceed even regional 
capabilities.
    (d) Identify natural resources and services at risk. In the NCP, 
regional and area planning committees are responsible for the 
identification of natural resources under their jurisdiction that are 
potentially vulnerable to incidents for given geographic areas such as 
wetland habitats near oil terminals or bird rookeries near shipping 
routes. If there is an incident, the response teams will focus their 
efforts on protection of these natural resources and/or services 
considered most vulnerable.
    Trustees should actively participate in such planning committees to 
identify natural resources and services at risk. Further, trustees 
should identify and evaluate possible assessment procedures for these 
natural resources and services.
    (e) Identify area and regional response agencies and officials. In 
order to participate actively in area and regional planning activities, 
trustees should identify the response agencies and officials. 
Developing a working relationship with these response agencies and 
officials will optimize coordination between assessment and response 
activities following an incident.
    (f) Identify available baseline and other relevant information. 
Trustees should identify and catalog sources of baseline information as 
part of pre-incident planning, including seeking input on sources of 
information. Types of information that may be important include: (i) 
Petroleum hydrocarbon contamination in indicator organisms; (ii) 
species census and inventory data; (iii) baseline data on species 
populations; (iv) recreational use statistics; (v) values for selected 
natural resources and services; and (vi) restoration measures 
applicable to injured natural resources and services. Familiarity with 
the types of baseline information and identification of data gaps and 
needs will allow the trustees to formulate better study designs and 
restoration approaches.
    (g) Establish data management systems. Data management and record 
keeping are critical throughout the restoration process. Data 
management systems may best be designed during pre-incident planning to 
minimize the possibility of losing critical information during an 
incident. For small incidents, this may be a relatively simple filing 
system, but for large incidents, a centralized computer-based system 
may be essential.
    Trustees may decide to develop consistent data management formats, 
such as field, laboratory and quality assurance forms, to facilitate 
data management. At a minimum, data management should address the: (i) 
Type and volume of data; (ii) uses and users of the data; (iii) 
availability of existing data management structures; (iv) quality 
assurance needs; (v) reporting requirements; and (vi) accessibility of 
the data. Data management should also include provisions for 
distribution of updates for the trustees and others on a timely basis; 
and 

[[Page 497]]

    (h) Identify assessment funding issues and options. Funding of 
trustee activities should be addressed during pre-incident planning 
because of the need to initiate actions expeditiously after an 
incident. Trustees may have several sources of potential funding, 
including: (i) Responsible parties; (ii) Oil Spill Liability Trust Fund 
(Fund); and (iii) agency funding. Trustees should consult the most up-
to-date guidance available from the U.S. Coast Guard for access to the 
Fund and incorporate these procedures into pre-incident planning.

II. Regional Restoration Planning

General
    OPA emphasizes making the environment and public whole for injuries 
to natural resources and services. Where practicable, incident-specific 
restoration plan development is the preferred approach. However, for 
many incidents, such incident-specific planning may be impractical 
because, for instance, injuries are not extensive or are short-term. 
For small incidents, incident-specific planning costs may be high 
compared to the estimated damages.
    Thus, to achieve OPA's mandate to make the environment and public 
whole, trustees are strongly encouraged to use or modify existing 
restoration plans, identify other existing restoration projects, or 
develop new regional restoration plans. Such regional planning is 
appropriate so long as natural resources and services comparable to 
those expected to be injured by an incident are addressed in the plans.
 Availability of Regional Restoration Plans
    Trustees may rely on or adjust existing regional restoration plans, 
so long as they have followed or can be modified to meet the planning 
requirements under the rule. Lacking existing regional plans, trustees 
should seek to develop such plans. The trustees may organize these 
plans based on such factors as geography (e.g., ecosystems or 
watersheds), injuries anticipated from incidents, or restoration 
alternatives.
    Regional restoration plans must be developed or annotated in such a 
way that trustees are able to justify linking the injuries from a 
particular incident or set of incidents with a specific restoration 
project or set of projects within the plan. This may be facilitated by 
describing the types of injuries anticipated from incidents to specific 
natural resources within a region, and describing these injuries in 
terms of the types and importance of functions and services, ecological 
and human use.

III. Coordination

General
    Trustee coordination is crucial to an efficient and effective 
assessment and restoration planning process because of the need to 
address shared trustee interests in natural resources and services 
injured by incidents. OPA prohibits double recovery of damages, which 
strongly suggests that, where multiple trustees are involved in an 
incident, they actively coordinate their activities as early in the 
process as possible.
Incentives for Coordination
    Incentives for coordination include:
    (a) Access to funding--requests for reimbursement of the costs of 
initiating natural resource damage assessment from the Fund require 
that trustees attempt to coordinate their assessments and funding 
requests;
    (b) Conflict resolution--lack of coordination among the trustees or 
with the responsible parties will likely produce an adversarial, 
litigation-charged atmosphere. A joint trustee-responsible party effort 
will help resolve legal, administrative, and technical conflicts; and
    (c) Pooling limited resources--a joint trustee-responsible party 
effort will allow the pooling of financial and human resources for more 
efficient and effective restoration planning and implementation.
    Trustees will benefit greatly if coordination procedures can be 
established well before an incident occurs. However, cooperative 
arrangements allowing for responsible party implementation of 
assessment activities are subject to trustee oversight because of the 
trustees' fiduciary responsibility to the public.
Agreements
    Trustees should consider Memoranda of Understanding (MOUs) to 
formalize their co-trustee relationships. The MOU or similar agreements 
may be prepared either in anticipation of an incident or shortly after 
an incident. It is important that trustee agreements address, at a 
minimum: the purpose of the agreement; trustee participants; trustee 
organization; trustee responsibilities; and a decisionmaking process.
Lead Administrative Trustee (LAT)
    When conducting joint assessments under this rule, trustees must 
designate a Lead Administrative Trustee (LAT). The LAT serves as the 
contact for trustee interaction with response agencies, responsible 
parties and the public, and provides general administrative support to 
the restoration process.
    The rule does not require that a LAT be a federal agency. However, 
when more than one federal trustee(s) is involved, the federal trustees 
must select a federal LAT if the trustees wish to access the Fund to 
initiate natural resource damage assessment activities. Where 
appropriate, the trustees may designate co-LATs, consisting of a 
federal LAT and the state, tribal, or foreign trustees. Trustees may 
also elect to provide for sequential LATs to cover different stages of 
the restoration planning and implementation process.
    The LAT should be selected by mutual agreement of the trustees. In 
designating a LAT, trustees may want to consider such factors as: 
relative extent of jurisdiction over natural resources and services 
injured by an incident; capability and willingness to conduct 
assessment actions; and sequence and duration of involvement in the 
incident or similar incidents. Selection of a LAT should be made as 
soon as practicable after notification of an incident.
Co-Trustee Responsibilities
    Co-trustees should be prepared to participate fully in the 
restoration planning and implementation process by: participating in or 
conducting those studies or analyses for which they have special 
expertise or management authority; making staff available to 
participate in other assessment activities, in particular, to represent 
the trustee in decisions requiring co-trustee unanimity; and committing 
financial resources. Each trustee may limit this participation based on 
the extent of injury to its natural resources as well as legal and 
financial constraints.
Coordination With Response Agencies
    To the fullest extent practicable without interfering with response 
activities, natural resource concerns should be integrated with 
response activities before pursuing an assessment; liability for 
natural resource damages is limited to damages for injuries residual to 
the response phase, plus any injuries related to the response. NOAA 
strongly encourages trustees to coordinate natural resource injury 
assessment activities, such as gathering ephemeral data related to an 
incident, with response actions. Mechanisms to coordinate response and 
trustee data gathering needs and processes may also be addressed in 
pre-incident planning. 

[[Page 498]]

Coordination With the Responsible Parties
    Under OPA, trustees have the responsibility to determine 
appropriate actions to restore injured natural resources and services. 
However, the rule requires trustees to invite the responsible parties 
to be full or partial participants in the assessment and restoration 
process, whenever it can be achieved without compromise of the 
trustees' statutory obligations to act on behalf of the public trust.
Enforceable Agreements
    Trustees and responsible parties should consider entering into 
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, assessment, and/or 
restoration. For example, stipulated facts might concern the types of 
natural resources and services injured, the extent of injury, or the 
most appropriate assessment procedures to determine injury and/or 
restoration needs, and how the results of the procedures used will be 
interpreted.
Coordination Among the Responsible Parties
    While it is obviously not as easy to identify the mix of potential 
responsible parties that will participate in a given incident, there 
are issues that can be addressed in general terms by the potential 
responsible parties in advance, that will enable them to enter the 
cooperative restoration process more efficiently and effectively. In an 
incident with a single well-identified responsible party, the ability 
to assess the situation, identify the appropriate course of action and 
most effectively implement a cooperative response will be improved by 
pre-incident planning. In an incident with multiple potential 
responsible parties, the need for pre-incident planning is more 
apparent. In this latter situation, the potential responsible parties 
need to consider the efficacy of a cooperative restoration process, and 
the terms under which they would consider entering into such a process.

Appendix B--Assessment Procedures

    Any procedures used to assess injury and scale restoration actions 
(i.e., procedures used throughout the natural resource damage 
assessment) must meet all of the standards listed in Sec. 990.27 of the 
rule if they are to be in accordance with the rule. The rule allows for 
the use of a range of assessment procedures. The scientific and 
technical adequacy of these procedures will be judged based on the 
circumstances of the incident and associated injuries, and the 
information needed to determine restoration actions. If a range of 
assessment procedures providing the same type and quality of 
information is available, the least costly procedure must be used.
Type A Procedures
    The Department of the Interior (DOI) is responsible for developing 
``type A'' assessment procedures under CERCLA. These procedures were 
originally intended to cover both hazardous substance releases as well 
as oil discharges. This rule would allow trustees to use any final type 
A procedure incorporated into DOI's regulations that addresses 
discharges of oil.

Compensation Formulas

    As part of the 1994 proposed regulations, NOAA proposed a 
compensation formula that could be used for small incidents in both the 
estuarine and marine environments and the Great Lakes (and other inland 
waters). The formula was developed using early drafts of type A models 
being developed by DOI. The purpose of the formula is to readily 
estimate impacts based on the amount of oil discharged and several 
simple data inputs. The compensation formula was reserved in the 1995 
proposed rule.
    DOI is scheduled to issue the final revised type A models in early 
1996. When those models are final, NOAA intends to reissue the 
compensation formulas. Pending the final promulgation of the models, 
NOAA has developed a guidance document to provide an interim tool for 
such a purpose.
    The compensation formula guidance document is intended to provide 
instructions on how to recreate the incident scenarios used to develop 
the 1994 proposed estuarine/marine compensation formulas. Using the 
data in the guidance document, trustees will have a cost-effective tool 
to use in estimating expected impacts of most discharges of oil. This 
information may prove to be useful in early decisionmaking in a natural 
resource damage assessment or in settlement discussions.

Restoration Scaling Procedures

    The following is a list of procedures that are mentioned in this 
preamble as potential approaches to scaling restoration actions. The 
trustees are not limited to these procedures and may use any procedure 
deemed to be appropriate to the particular situation, pursuant to the 
guidance given above and in Sec. 990.27 of the final rule.
A. Habitat Equivalency Analysis
    This procedure may be used to scale restoration actions that 
replace entire habitats that support multiple species or that replace 
individual species that provide a variety of natural resource services. 
To ensure that the scale of the restoration action does not over- or 
under-compensate the public for injuries incurred, the trustees must 
establish an equivalency between the present value of the quantity of 
lost services and the present value of the quantity of services 
provided by the restoration action(s) over time.
B. Travel Cost Method
    The travel cost method is principally employed to model demand for 
recreational experiences. This measurement procedure evolved from the 
insight that the travel costs an individual incurs to visit a site are 
like a price for the site visit. In essence, the travel cost method 
assesses an individual's willingness to travel further (thereby 
incurring higher travel costs) in order to recreate at more highly 
valued sites. It is important to take into account the availability and 
quality of substitute recreation sites. Multiple-site models of 
recreational demand, such as the random utility model, focus attention 
on the recreationist's choice among alternative recreational sites. 
This version of the travel cost model is particularly appropriate where 
many substitutes are available to the individual and/or when the 
incident has affected quality at multiple sites. For this reason, 
multiple-site models of recreational demand are preferred to single-
site models, unless it is feasible to include in the single-site model 
price and quality information about the relevant substitute sites (or 
there are no substitute sites). If a literature value from a single-
site model, without full accounting for substitutes, is the only 
available estimate, an appropriate adjustment should be made to the 
estimate of trip value.
    In cases where the change in the quantity or quality of natural 
resource services to be analyzed is outside of the range of observed 
behavior, trustees may choose to collect contingent behavior data. 
Contingent behavior refers to the behavior of users or potential users 
of a natural resource service under hypothetical conditions presented 
to them in the travel cost survey.

[[Page 499]]

C. Factor Income Approach
    This approach can be employed to calculate changes in economic rent 
under certain special conditions; in more general cases, the procedure 
appropriate for calculating economic rent is market models of supply 
and demand. The factor income approach relies upon the production 
function model that relates the contribution of inputs to the 
production of an output. (Inputs are also referred to as factors of 
production.) An incident may decrease the quality and/or quantity of a 
natural resource, and thereby effectively increase the cost of 
employing a natural resource input in a production process. For 
example, contamination of water supplies or of sediments in 
navigational waterways may increase the costs of providing drinking 
water or of maintaining navigational waterways through dredging. Where 
the prices of the final product and of the other factors of production 
do not change, the change in economic rent is simply the sum of the 
changes in factor costs (or factor income) for the affected inputs.
D. Hedonic Price Model
    The hedonic price model relates the price of a marketed commodity 
to its various attributes. In the natural resource damage assessment 
context, it may be used to determine the change in value of some 
nonmarket services from public trust natural resources (for example, 
environmental amenities such as water or air quality) where they 
function as attributes of private market goods, such as property. For 
example, the value of beach front property may be directly related to 
the quality and accessibility of the adjacent coastline. The change in 
value of the property owners associated with the reduction in the 
quality or accessibility, as may occur due to an incident, may be 
captured in the value of the property if the effect is large enough. 
All else equal, the decrease in property values as a result of a 
discharge measures the change in use value of the injured coastline 
natural resources accruing to local property owners. This measure of 
the reduction in value of coastline natural resources will not capture 
any loss in value of the natural resources that may accrue to members 
of the public who do not own property in the area.
E. Market Models of Demand and Supply
    For those goods and services regularly traded in markets, 
economists typically rely upon market transactions to reveal the values 
that individuals place on the goods and services and the costs of 
producing them. When the quality of the natural resource directly 
affects the value individual consumers place on a good or service, the 
correct measure of damage is the change in consumer surplus, or 
individuals' willingness-to-accept compensation plus the economic rent 
component of producer surplus, if any, for the injuries associated with 
the discharge.
F. Contingent Valuation
    The contingent valuation (CV) method determines the value of goods 
and services based on the results of carefully designed surveys. The CV 
method obtains an estimate of the total value, including both direct 
and passive use values of a good or service by using a questionnaire 
designed to objectively collect information about the respondent's 
willingness to pay for the good or service. A CV survey contains three 
basic elements: (i) A description of the good/service to be valued and 
the context in which it will be provided, including the method of 
payment; (ii) questions regarding the respondent's willingness to pay 
for the good or service; and (iii) questions concerning demographics or 
other characteristics of the respondent to interpret and validate 
survey responses.
G. Conjoint Analysis
    Conjoint analysis is a survey procedure that is used to derive the 
values of particular attributes of goods or services. Information is 
collected about individuals' choices between different goods that vary 
in terms of their attributes or service levels. With this information, 
it is possible to derive values for each particular attribute or 
service. If price is included as an attribute in the choice scenarios, 
values can be derived in terms of dollars which can be used with the 
valuation approach.
    Alternatively, it is possible to value attributes in terms of units 
of replacement services. Survey respondents would be presented with 
choices between two or more options that may represent restoration 
actions with varying levels or types of services. The goal is to obtain 
the value of the injured services in terms of alternative natural 
resource services so that restoration actions can be scaled directly 
using the resource-to-resource or service-to-service approaches or the 
valuation approach.
H. Benefits Transfer Approach
    Benefits (or valuation) transfer involves the application of 
existing value estimates or valuation functions and data that were 
developed in one context to address a sufficiently similar natural 
resource valuation question in a different context.
    Where natural resource values have been developed through an 
administrative or legislative process and are relevant and reliable 
under the circumstances, the trustees may use these values, as 
appropriate, in a benefits transfer context. Other values may be used 
so long as three basic issues are considered in determining the 
appropriateness of their use: the comparability of the users and of the 
natural resource and/or service being valued in the initial studies and 
the transfer context; the comparability of the change in quality or 
quantity of natural resources and/or services in the initial study and 
in the transfer context (where relevant); and the quality of the 
studies being transferred.

National Environmental Policy Act, Regulatory Flexibility Act, 
Paperwork Reduction Act and Executive Orders 12630, 12778, and 12612

    The National Oceanic and Atmospheric Administration has determined 
that this rule does not constitute a major federal action significantly 
affecting the quality of the human environment. Therefore, no further 
analysis pursuant to section 102(2)(C) of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332(2)(C)) has been prepared.
    The Assistant General Counsel for Legislation and Regulation, in 
accordance with the Regulatory Flexibility Act, certifies to the Chief 
Counsel for Advocacy, Small Business Administration, that this rule 
will not have a significant economic effect on a substantial number of 
small entities. The rule is intended to make more specific, and easier 
to apply, the standards set out in OPA for assessing injury to natural 
resources and/or services as a result of actual or threatened 
discharges of oil. The rule is not intended to change the balance of 
legal benefits and responsibilities among any parties or groups, large 
or small. To the extent any are affected by the rule, it is anticipated 
that all parties will benefit by increased ease of application of law 
in this area.
    It has been determined that this rule does not contain information 
collection requirements that require approval by the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.).
    The final rule has been reviewed under Executive Order 12,866 and 
has been determined to constitute a significant regulatory action. 
However, because of the difficulty of evaluating 

[[Page 500]]
the effects of alternatives to this rule, the Office of Information and 
Regulatory Affairs within the Office of Management and Budget has 
waived preparation of the assessments described in sections 6(a)(3)(B) 
and 6(a)(3(C) of Executive Order 12,866 for the final rule.
    It has been determined that this rule does not have takings 
implications under Executive Order 12,630. The Department has certified 
to the Office of Management and Budget that this rule meets the 
applicable standards provided in sections 2(a) and 2(b)(2) of Executive 
Order 12,778. It has been determined that this rule does not have 
federalism implications under Executive Order 12,612.

List of Subjects in 15 CFR Part 990

    Coastal zone, Endangered and threatened species, Energy, 
Environmental protection, Estuaries, Fish, Fisheries, Fishing, 
Gasoline, Historic preservation (archeology), Hunting, Incorporation by 
reference, Indian lands, Marine pollution, Migratory birds, National 
forests, National parks, National Wild and Scenic Rivers System, 
Natural resources, Navigable waters, Oil, Oil pollution, Petroleum, 
Plants, Public lands, Recreation and recreation areas, Rivers, 
Seashores, Shipping, Waterways, Water pollution control, Water 
resources, Water supply, Water transportation, Wetlands, Wildlife.

    Dated: December 21, 1995.
D. James Baker,
Under Secretary for Oceans and Atmosphere.

    Under the authority of the Oil Pollution Act of 1990, and for the 
reasons set out in this preamble, title 15 of the Code of Federal 
Regulations, chapter IX is amended to add a new Subchapter E--Oil 
Pollution Act Regulations and a new part 990 as set forth below.

SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS

PART 990--NATURAL RESOURCE DAMAGE ASSESSMENTS

Subpart A--Introduction

Sec.
990.10  Purpose.
990.11  Scope.
990.12  Overview.
990.13  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.

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.

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 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 

[[Page 501]]
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-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) 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 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 

[[Page 502]]
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 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 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 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 

[[Page 503]]
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 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 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 
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 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


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. 

[[Page 504]]

    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)).
    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 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 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 

[[Page 505]]
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 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 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 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' 

[[Page 506]]
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 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
    (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.


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; 

[[Page 507]]

    (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 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 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 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. 
    
[[Page 508]]

    (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 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, 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 record. Trustees may not add 

[[Page 509]]
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 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).


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 

[[Page 510]]
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 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.

[FR Doc. 95-31577 Filed 12-29-95; 8:45 am]
BILLING CODE 3510-12-P