[Federal Register Volume 60, Number 149 (Thursday, August 3, 1995)]
[Proposed Rules]
[Pages 39804-39834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19128]




[[Page 39803]]

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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 990



Natural Resources Damage Assessments; Proposed Rule

  Federal Register / Vol. 60, No. 149 / Thursday, August 3, 1995 / 
Proposed Rules   

[[Page 39804]]


DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 990

RIN 0648-AE13


Natural Resource Damage Assessments

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: Section 1006(e)(1) the Oil Pollution Act of 1990 (OPA) 
requires the President, acting through the Under Secretary of Commerce 
for Oceans and Atmosphere, to promulgate regulations for the assessment 
of natural resource damages resulting from a discharge or substantial 
threat of a discharge of oil. By today's Notice, the National Oceanic 
and Atmospheric Administration (NOAA) is seeking comments concerning 
the proposed rule.
    The proposed rule is for the use of authorized federal, state, 
Indian tribal, and foreign officials, referred to in OPA as 
``trustees.'' Natural resource damage assessments are not identical to 
response or remedial actions addressed by the larger statutory scheme 
of OPA. Assessments are not intended to replace response actions, which 
have as their primary purpose the protection of human health, but to 
supplement them, by providing a process for making the public whole for 
injury to natural resources and/or services.
    Reviewers of this proposed rule should be aware that NOAA is 
subject to a consent decree that requires NOAA to submit a final rule 
to the Federal Register by the end of December 1995 (Natural Resources 
Defense Council v. United States Coast Guard, No. CV-94-4892, Order for 
Partial Settlement (E.D.N.Y. June 26, 1995). Due to the short timeframe 
for development of a final rule, reviewers should not expect any 
extensions of the comment period.

DATES: Written comments should be received no later than October 2, 
1995.

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

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

SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA), 33 
U.S.C. 2701 et seq., provides for the prevention of, liability for, 
removal of, and compensation for the discharge, or substantial threat 
of discharge, of oil into or upon the navigable waters of the United 
States, adjoining shorelines, or the Exclusive Economic Zone (an 
incident). Section 1006(b) of OPA provides for the designation of 
federal, state, Indian tribal, and foreign natural resource trustees to 
determine if injury to, destruction of, loss of, or loss of use of 
natural resources and/or services has resulted from an incident, assess 
natural resource damages, present a claim for damages (including the 
reasonable costs of assessing damages), recover damages, and develop 
and implement a plan for the restoration, rehabilitation, replacement, 
or acquisition of the equivalent of the injured natural resources and/
or services under their trusteeship.
    Section 1006(e)(1) of OPA requires the President, acting through 
the Under Secretary of Commerce for Oceans and Atmosphere, to 
promulgate regulations for the assessment of natural resource damages 
resulting from incidents. By today's Notice, NOAA is seeking comments 
concerning the proposed rule. The proposed rule is for use by 
designated trustees.
    On January 7, 1994, NOAA published a proposed rule for assessing 
natural resource damages under OPA (59 FR 1061). NOAA received numerous 
comments on the January 1994 proposed rule. Based on these comments, 
NOAA is considering a fundamental restructuring of the rule to provide 
even greater emphasis upon restoration. To ensure that all interested 
parties have adequate opportunity to review and comment on this 
restructuring, NOAA is reproposing the rule.
    There are several significant differences between today's proposed 
rule and the January 1994 proposed rule. First, today's proposed rule 
eliminates the need for the determination of ``compensable values'' as 
a separate component of a natural resource damage claim. However, this 
approach does not make the value of natural resources irrelevant. Value 
still plays an important role in designing restoration actions that 
will truly make the public and environment whole for the types of 
natural resource injuries and service losses resulting from an 
incident. Second, the proposed rule emphasizes that trustees will be 
seeking, on behalf of the public, restoration of what was lost--natural 
resources and/or services provided, both human and ecological. Third, 
the proposed rule brings selection of restoration actions clearly into 
the public planning process. The public process outlined in the 
proposed rule affords federal agencies compliance with the requirements 
of the National Environmental Policy Act and accomplishes the goal of 
public involvement that was sought in the January 1994 proposed rule. 
Finally, the proposed rule authorizes trustees to determine appropriate 
assessment methods on an incident-specific basis, from a range of 
procedures including simplified methods to complex field studies. The 
proposed rule removes the distinction between categories of approaches 
termed ``expedited'' or ``comprehensive,'' and provides guidance for 
choosing appropriate methods based on the incident and the particular 
natural resource injuries or service losses of concern. This proposed 
rule does, however, require that assessment methods be reliable and 
valid in the particular context, and that the methods be cost-
effective.
    Prior to issuing a proposed rule, NOAA published eight Federal 
Register Notices requesting information and comments on approaches to 
developing natural resource damage assessment procedures. 55 FR 53478 
(December 28, 1990), 56 FR 8307 (February 28, 1991), 57 FR 8964 (March 
13, 1992), 57 FR 14524 (April 21, 1992), 57 FR 23067 (June 1, 1992), 57 
FR 44347 (September 25, 1992), 57 FR 56292 (November 27, 1992), and 58 
FR 4601 (January 15, 1993). NOAA conducted a public meeting on March 
20, 1991, for additional public participation into the process and held 
four regional workshops during 1991 in Rockville, Maryland; Houston, 
Texas; San Francisco, California; and Chicago, Illinois, to learn of 
regional concerns in coastal and inland waters. One workshop held in 
Alexandria, Virginia, in November, 1991, provided a forum for early 
discussions of various economic issues likely to be raised during the 
rulemaking process. In addition, on August 12, 1992, NOAA held a public 
hearing on the issue of whether constructed market methodologies, 
including contingent valuation (CV), can be used to calculate reliably 
passive use values for natural resources, and if so, under what 
circumstances and under what guidance. On January 15, 1993, NOAA 
published in full the report of the panel commissioned by NOAA to 
evaluate the reliability of CV in calculating passive use values for 
natural resources. 58 FR 4601.
    NOAA published the proposed OPA rule on January 7, 1994 (59 FR 
1061). The proposed rule contained a statement of issues of interest to 


[[Page 39805]]
stimulate discussions on some of the more intriguing suggestions 
considered in developing the proposed rule. Immediately after 
publishing the proposed rule, NOAA held six regional meetings in 
January and February of 1994. A seventh workshop was held in March of 
1994 in Washington, D.C., to summarize the discussions and results of 
the six regional meetings. NOAA published an informational notice to 
summarize the kinds of concerns raised in the discussions and refine 
some issues on which NOAA was particularly soliciting comments. 59 FR 
32148 (June 22, 1994).
    NOAA received numerous comments on the January 1994 proposed rule. 
Based on these comments, NOAA is considering a fundamental 
restructuring of the rule to provide even greater emphasis upon 
restoration. To ensure that all interested parties have adequate 
opportunity to review and comment on this restructuring, NOAA is 
reproposing the rule.
    This preamble is organized in the following manner: the 
Introduction gives an overview of the proposed rule and is followed by 
a discussion of each of the subparts of this proposed rule. Subpart A 
provides a general introduction, subpart B describes trustee 
authorities, subpart C gives definitions pertinent to this proposed 
rule, subpart D describes the Preassessment Phase, subpart E describes 
the Restoration Planning Phase, and subpart F describes the Restoration 
Implementation Phase. Finally, the preamble provides a general summary 
of the comments on the January 1994 proposed rule.

INTRODUCTION

I. Goal of OPA: Focus on Restoration

    The goal of OPA is to make the public and environment whole for 
injury to, destruction of, loss of, or loss of use (injury) of natural 
resources and/or services resulting from an actual or substantial 
threat of a discharge of oil (OPA sec. 1002(b)(2)(A)). This goal is 
achieved by planning and implementing appropriate actions to restore, 
rehabilitate, replace, or acquire the equivalent of injured natural 
resources and/or services (restore). The purpose of this proposed rule 
is to provide a framework for conducting sound natural resource damage 
assessments (NRDAs or assessments) that achieve restoration under OPA 
for incidents.
    This proposed rule emphasizes several processes to achieve the goal 
of restoring injured natural resources and services: (1) Identification 
and evaluation of injuries to natural resources and/or services; (2) 
employing assessment methods relevant to the circumstances of a 
particular incident; (3) identification and evaluation of restoration 
alternatives; and (4) involvement of the public in the process of 
selecting restoration actions appropriate for a given incident.
    NOAA believes that an NRDA process that meets the essential 
procedural elements of identifying and evaluating relevant injuries and 
restoration alternatives, and soliciting public input will accomplish 
three major goals: (1) Involve the public in the decision of what 
actions will make them whole; (2) ensure that appropriate scientific 
procedures and methods for determining restoration actions for a given 
incident are followed; and (3) reduce transaction costs.
    NOAA recognizes that restoration planning by federal trustee 
agencies is subject to the requirements of the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.), except when a categorical 
exclusion applies. However, NOAA believes that the process identified 
in this proposed rule mirrors the decisionmaking process embodied in 
NEPA, without requiring significantly different steps or products than 
those envisioned in OPA. Thus, compliance with the procedures set forth 
in the proposed rule would fulfill the requirements of NEPA. Steps and 
products that are analogous under OPA and NEPA are identified in a 
diagram in Appendix A at the end of the preamble.
    Finally, NOAA has developed guidance documents on various aspects 
of the NRDA process. These guidance documents are available in draft 
on: Preassessment, injury assessment, restoration, compensation 
formulas, and NEPA compliance (citations for the documents are included 
in the Bibliography at the end of this preamble). These draft documents 
are available from the address at the front of this preamble. The 
guidance documents are being prepared in conjunction with this 
rulemaking to provide additional technical information to those 
performing assessments under OPA and other interested members of the 
public. These documents will not constitute regulatory guidance, nor 
will they have to be followed for a damage assessment to be conducted 
in accordance with these regulations. The documents, in their final 
form, will be made available through a public information distribution 
service.

II. Overview of the Restoration Planning Process: NRDA Under the 
Proposed Rule

    Regardless of the scope or scale of the incident, the restoration 
planning process provided in this proposed rule is generally the same. 
In the Preassessment Phase, trustees must first determine threshold 
issues that establish their authority to begin the NRDA process, such 
as: (1) Whether OPA is applicable (e.g., did the incident involve 
oil?); (2) whether an exclusion from liability under the statute 
applies (e.g., natural resources were affected by a discharge from a 
public vessel); and (3) whether natural resources under their trustee 
authority were potentially affected by the incident. Trustees then 
assess whether injuries will be adequately addressed through response 
actions, or whether further action is warranted to consider the need 
for additional restoration.
    If further action is justified, the trustees prepare a ``Notice of 
Intent to Conduct Restoration Planning,'' or ``Notice.'' Based on 
information available at this early stage of the assessment process, 
the Notice may also describe the trustees' proposed strategy for 
assessing injury and determining appropriate restoration actions. This 
proposed rule advocates using injury assessment procedures that 
directly provide information on restoration and are cost effective.
    Once the Notice is published, trustees continue with the injury 
assessment component of the Restoration Planning Phase, in which 
trustees evaluate natural resource and/or service injuries. Following 
injury assessment, trustees determine the type and scale of restoration 
to address the injuries. Restoration under the proposed rule includes 
two components: (1) Primary restoration--actions taken to return the 
injured resources and services to baseline, including the natural 
recovery option, and (2) compensatory restoration--actions to make the 
environment and public whole for resource services lost from the date 
of the incident until recovery of the injured resources. The type and 
scale of compensatory restoration are related to the type and scale of 
primary restoration selected. Scaling of appropriate compensatory 
restoration actions is accomplished on a service-to-service comparison 
to services lost as a result of the incident, or through valuing the 
loss of the services and gains from compensatory restoration projects 
where service-based scaling is not feasible.
    Trustees develop a Draft Restoration Plan, identifying and 
evaluating a 

[[Page 39806]]
reasonable range of alternatives for restoring the injuries, including 
a no-action alternative, and describing the trustees' tentative 
preferred alternatives. The Draft Restoration Plan is subject to public 
review and comment, after which a Final Restoration Plan is developed. 
The Final Restoration Plan is then implemented during the Restoration 
Implementation Phase, either through an agreement by the parties 
responsible for the incident (responsible parties) to implement 
restoration with trustee oversight, through immediate payment of the 
demand for restoration costs by the responsible parties, or through 
litigation to collect restoration costs.
    The timing and degree of public involvement in the assessment 
process, and the type of documents produced at various stages of the 
process, will be tailored to the scope and scale of the incident. For 
instance, for small incidents assessed with a model or compensation 
formula, it may be appropriate to compress the Notice and draft 
restoration documents into a single document that reports the inputs 
used and results of the model application, along with the alternate and 
preferred restoration actions. In contrast, larger incidents that 
require in-depth site-specific studies to identify and evaluate 
appropriate restoration may require a series of plans that would 
benefit from public notice and/or comment. In addition, when trustees 
propose to implement part of a regional restoration plan for a given 
incident and that plan has previously been available for public review 
and comment, trustees may choose only to notify the public of the 
decision to link a given incident to the regional plan.

III. Issues of Interest

A. Evaluating a Reasonable Range of Restoration Alternatives

    Restoration actions under this proposed rule are defined to include 
activities designed to make the environment and public whole for 
natural resources and/or services injured as a result of an incident. 
Restoration is defined to include primary restoration actions that 
return injured natural resources and services to the conditions that 
would have existed in the absence of the incident, and compensatory 
restoration actions that make the public and the environment whole for 
interim service losses. Thus, throughout this proposed rule, 
``restoration'' refers to any appropriate combination of primary and 
compensatory restoration actions designed to address natural resource 
and service injuries.
    NOAA proposes that trustees identify a reasonable range of 
restoration alternatives and then evaluate those alternatives based on 
such factors as: (1) Extent to which each alternative can return the 
injured natural resources and services to baseline and make the 
environment and public whole for the interim service losses; (2) extent 
to which each alternative improves the rate of recovery; (3) extent to 
which each alternative will avoid additional injury; (4) level of 
uncertainty in the success of each alternative; (5) extent to which 
each alternative benefits more than one natural resource and/or 
service; (6) cost of each alternative; (7) effects of each alternative 
on public health and safety, and the environment; and (8) whether any 
alternative violates any laws or regulations.
    Like NEPA, this proposed rule only requires that a reasonable range 
of restoration alternatives be considered. Under OPA, trustees are 
directed to return injured natural resources and services to the 
condition that would have existed in the absence of the incident. Thus, 
trustees must evaluate possible restoration actions in light of their 
effectiveness in returning natural resources and services to baseline. 
The lowest cost restoration alternative may not always represent the 
preferred alternative. Instead, the costs of restoration alternatives 
should be evaluated by comparing the costs of alternative actions to 
the relative effectiveness of each in returning injured natural 
resources and services to baseline taking interim service losses into 
account. Also like NEPA, trustees following this proposed rule are 
required to consider a no-action alternative.
B. Regional Restoration Planning

    Regional restoration planning is encouraged under this proposed 
rule as a mechanism to plan and implement restoration for small 
incidents resulting in natural resource and/or service injury, where 
incident-specific restoration is impractical. The regional restoration 
planning process can pull together proposed or desired projects from 
numerous public entities, where such projects would be expected to 
restore the types of natural resource and service injuries anticipated 
from incidents in particular geographic areas. Regional restoration 
plans will shorten the assessment schedule and reduce overall costs, 
especially for small incidents. NOAA proposes the NEPA programmatic 
environmental impact analysis as a model for evaluating regional 
restoration plans.

C. Technical Adequacy of Assessment Procedures

    Under this proposed rule, the type and scale of technical and 
scientific analyses should be focused on information requirements for 
determining restoration given the circumstances of a particular 
incident. In making the determination of technical adequacy, trustees 
should be guided by current understanding of best scientific practices. 
However, when choosing among assessment procedures and methods that 
could provide greater levels of certainty or precision in assessment 
variables, trustees should evaluate the costs and time requirements of 
more in-depth procedures, expected increase in precision, and 
likelihood that greater precision will result, relative to the expected 
total damages for the injury being evaluated. Thus, for a given set of 
circumstances, use of a model or extrapolation from the scientific 
literature may be more appropriate for determining restoration than 
generating site-specific field data. This analysis of increased costs 
associated with expected increases in amount and quality of assessment 
information provided by different methods will ensure that assessment 
procedures and methods chosen are reasonable.

D. Public Participation

    OPA section 1006(c)(5) requires that the restoration process be 
open to the public before final decisions are made and actions taken. 
The restoration planning process should provide an adequate opportunity 
for public participation and addressing public concerns.
    In light of this requirement, NOAA is proposing an open planning 
process. To prevent delays in the restoration process at the time of an 
incident, trustees should afford the public an opportunity to be 
involved in planning activities prior to an incident (i.e., pre-
incident planning and regional restoration plan development). If pre-
incident public planning is not possible, the public must, at a 
minimum, be invited to participate in the development of draft and 
final incident-specific restoration plans. The nature of public 
participation will depend on the issues and actions being considered; 
however, common elements include: (1) Notice of the decision to proceed 
with restoration planning; (2) notice and comment on a Draft 
Restoration Plan; and (3) notice of a Final Restoration Plan. Public 
meetings may be appropriate in certain circumstances. 

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    In regard to the development of a restoration plan, NOAA believes 
that effective public participation enhances the probability that 
appropriate restoration actions will be implemented. Solicitation of 
comments from members of the scientific community, including natural 
resource injury, restoration, and economic experts, as part of a public 
participation program may supplement expert peer review of trustee 
strategies, plans, and tentative decisions. This type of public 
participation would also satisfy NEPA's requirement that the public be 
involved in assessing the environmental consequences of major federal 
actions. NOAA also believes that Restoration Plans developed under this 
proposed rule serve as Environmental Impact Statements (EIS) for 
purposes of NEPA. Examples of restoration plans that follow the NEPA 
EIS format are listed in the bibliography at the end of this preamble.
    Cooperative participation by responsible parties in the restoration 
planning process is consistent with the goals of an open process. Thus, 
NOAA believes that responsible parties should be invited to participate 
in the NRDA process, where such participation will not impede 
fulfilling the trustees' mandate to restore expeditiously injured 
natural resources and services.

DISCUSSION

Subpart A--Introduction

I. Purpose

    The purpose of this proposed rule is to promote expeditious 
restoration of natural resources and services injured as a result of an 
incident. To fulfill this purpose, this proposed rule provides an 
administrative process for involving interested parties, a range of 
assessment procedures for identifying and evaluating injuries to 
natural resources and/or services, and a process for selecting 
appropriate restoration actions from a range of alternatives.

II. Scope

    This proposed rule is available for use by designated federal, 
state, Indian tribal, and foreign natural resource trustees to 
determine appropriate actions to restore natural resources and services 
injured by a discharge, or substantial threat of a discharge, of oil 
into or upon navigable waters or adjoining shorelines or the Exclusive 
Economic Zone.
    The Secretaries of the Interior, Commerce, Agriculture, Defense, 
and Energy are the primary federal natural resources trustees. The 
roles and responsibilities of the various federal departments regarding 
NRDA vary according to their resource management responsibilities and 
the susceptibility of these natural resources and/or services to 
injury. Designation of federal trustees and broad guidelines describing 
trustee functions are addressed in subpart G of the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 
300.600. For state trustees, most governors have delegated trustee 
responsibilities to specific state agencies, as provided under OPA.

III. Effect of Using These Regulations

    Assessments performed by federal, state, or Indian tribal trustees 
in accordance with these regulations receive the evidentiary status of 
a rebuttable presumption provided by OPA section 1006(e)(2). In brief, 
this presumption means that the responsible parties have the burden of 
proving that the trustees' claim and determinations are incorrect. This 
presumption applies to all assessment procedures developed under this 
proposed rule. However, where trustees use procedures that are 
determined not to be in accordance with this proposed rule, trustees 
will not obtain a rebuttable presumption for that portion of the 
assessment. Assessments performed by foreign trustees in accordance 
with these regulations are not entitled to a rebuttable presumption.

IV. Coordination

A. General
    Coordination among all parties affected by an incident is crucial 
to an efficient and effective assessment. Coordination, from pre-
incident planning through joint and cooperative assessment, restoration 
planning and implementation, can assist in decreasing the time until 
restoration is implemented, preventing double recovery of damages, and 
ensuring that assessment costs are reasonable. More detailed discussion 
of some aspects of coordination appears in Appendix B at the end of 
this preamble.
B. Coordination Among Trustees
    This proposed rule encourages trustees with shared or overlapping 
natural resource management and protection jurisdiction to coordinate 
their NRDA activities, including coordination in pre-incident planning. 
Coordination among trustees will avoid duplicative claims for damages, 
address shared trust resource concerns, and result in more effective 
funding of assessment work. Trustees must designate a Lead 
Administrative Trustee for each joint assessment under this proposed 
rule and the NCP. This rule encourages trustees to consider cooperation 
agreements such as memoranda of understanding, to structure both non-
incident and incident-specific activities. Trustees may act 
independently when there is a reasonable basis for dividing NRDA 
responsibilities, so long as there is no double recovery of damages for 
the same incident and natural resource. However, independent 
assessments may not be in the best interests of the trustees, the 
responsible party, or in achieving prompt restoration of injured 
resources.
C. Coordination With Response Agencies
    Coordination among trustees and response agencies can result in 
reducing or eliminating natural resource and/or service injuries 
residual to the cleanup. ``Response'' or ``cleanup'' refers to those 
actions taken under the NCP to protect public health and welfare or the 
environment when there is a discharge or a substantial threat of a 
discharge of oil, including actions to contain or remove discharged oil 
from water and shorelines.
D. Coordination With Responsible Parties
    Active and early involvement of responsible parties may eliminate 
some of the problems trustees have encountered immediately following an 
incident, such as lack of funding, personnel and equipment. In 
addition, a joint trustee-responsible party assessment may be more 
cost-effective and avoid duplicate studies. Therefore, the proposed 
rule requires the trustees to invite the responsible parties to 
participate in the NRDA process.
    The proposed rule leaves determination of the timing and extent of 
responsible party participation to the judgment of the trustees on an 
incident-specific basis. While active responsible party involvement is 
the preferred method of conducting assessments, it may not be 
appropriate for trustees to delay assessment activities while 
negotiating the terms of responsible party involvement.
    In making a determination to allow responsible party participation 
in the assessment, trustees should consider factors including, but not 
limited to: (1) Whether responsible parties have been identified; (2) 
the willingness of responsible parties to participate in the 
assessment; (3) the willingness of responsible parties to fund 
assessment costs of the trustees; and (4) the willingness and ability 
of responsible parties to conduct assessment activities in a 
technically sound and timely manner. 

[[Page 39808]]

E. Coordination With the Public
    A major goal of OPA is to involve the public in the restoration 
planning process. The proposed rule requires trustees to provide public 
notice of their intent to conduct restoration planning, and allow for 
public review and comment on the Draft Restoration Plan. Depending on 
the nature of the incident and expected assessment activities, comment 
may be solicited at additional stages to ensure the best information 
base is available to trustee decisionmakers.
    In highly complex incidents, or those incidents that are expected 
to involve multi-year efforts, trustees may have an opportunity to set 
up one or a series of public meetings to ensure opportunity for public 
input. Attendance should be encouraged by all parties that are 
involved, participating, or interested in the incident.
    Trustees may also conduct public outreach on non-incident-specific 
restoration issues. Trustees are responsible for representing the 
public's interests in natural resources and/or services affected by 
incidents. Trustees can better fulfill this trust responsibility by 
informing the public about NRDA provisions in statutes and the 
processes trustees undergo in assessing injury and determining 
restoration actions.
    To the fullest extent practicable, trustees should implement public 
outreach, which will:
    (1) Encourage a broad understanding of restoration and build trust, 
thus allowing for quicker recognition and support of the restoration 
process overall;
    (2) Provide opportunities for joint fact-finding, improving the 
collection of quality data; and
    (3) Incorporate public concern, providing for more effective 
restoration planning.

V. Considerations for Facilitating Restoration

A. General
    Pre-incident planning and regional restoration plan development are 
tools trustees should consider as means to enhance successful 
restoration planning and implementation. More extensive discussion on 
these topics is included in Appendix B at the end of this preamble.
B. Pre-Incident Planning
    NOAA believes that commitment of time, funding, and personnel to 
planning prior to an incident will help ensure that the assessment 
process results in technically sound and cost-effective plans. Pre-
incident plans may: identify natural resource damage assessment teams; 
establish trustee notification systems; identify support services; 
identify natural resources and/or services at risk; identify regional 
and area response agencies and officials; identify available baseline 
information; establish data management systems; and identify assessment 
funding issues and options. Potentially responsible parties should be 
included in the pre-incident planning process to the fullest extent 
practicable.
C. Regional Restoration Planning
    OPA emphasizes making the environment and public whole for natural 
resource and/or service injuries. Where practicable, incident-specific 
restoration is the preferred alternative to accomplish this goal. 
However, for many incidents, including smaller incidents, such 
incident-specific action may be impractical. Yet, the impact of small 
incidents may still represent a significant concern for trustees. Thus, 
to achieve OPA's mandate to restore injured natural resources and 
services regardless of the type and scale of those injuries, trustees 
are encouraged to use or modify existing regional restoration plans, or 
develop new regional restoration plans. Planning in a regional (e.g., 
ecosystem or watershed) context is appropriate so long as natural 
resources and/or services comparable to those expected to be injured by 
an incident are addressed in the plans.

VI. Review of the Regulations

    Although OPA does not contain a specific provision for the update 
of these regulations, NOAA believes that they should be reviewed on a 
regular basis to keep the procedures current with new developments. 
Thus, NOAA is proposing that these regulations be reviewed and revised, 
as appropriate, at least every five years.

Subpart B--Authorities

I. Relationship to Other NRDA Regulations

A. CERCLA Regulations
    The Department of the Interior (DOI) has developed regulations for 
assessing natural resource damages resulting from hazardous substance 
releases under the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (CERCLA) (42 U.S.C. 9601 et seq.), and the 
Clean Water Act (33 U.S.C. 1321 et seq.). The CERCLA regulations are 
codified at 43 CFR part 11. The CERCLA regulations originally applied 
to natural resource damages resulting from oil discharges as well as 
hazardous substance releases. This proposed rule will supersede 43 CFR 
part 11 with regard to discharges of oil and substantial threats of a 
discharge of oil, when final. Assessments commenced under the CERCLA 
regulations before the effective date of the final OPA rule may be 
completed in compliance with the CERCLA regulations, and will be deemed 
conducted in accordance with the OPA regulations.
    If natural resources and/or services are injured by a discharge or 
release of a mixture of oil and hazardous substances, trustees must use 
43 CFR part 11 in order to obtain a rebuttable presumption.
B. State, local, and Indian tribal NRDA Procedures
    Many states have developed their own NRDA statutes and regulations. 
When state, local, or Indian tribal NRDA procedures are determined to 
be in accordance with this proposed rule, use of these procedures will 
afford the trustees the evidentiary benefit of the rebuttable 
presumption. Under the proposed rule, state, local, or Indian tribal 
NRDA procedures are in accordance with the OPA regulations when the 
procedures:
    (1) Require all recovered damages to be spent on restoration, 
subject to a plan made available for public review and comment, except 
for those damages recovered to reimburse trustees for past assessment 
and emergency restoration costs;
    (2) Determine compensation based on injury and/or restoration;
    (3) Are consistent with the standards for the technical procedures 
and methods outlined in Sec. 990.51 of this part;
    (4) Were developed through a public rulemaking process; and
    (5) Do not conflict with OPA or this proposed rule.

II. Relationship to the NCP

    The proposed rule would supplement the procedures established under 
the NCP for the response to an incident, and provide procedures by 
which trustees may determine appropriate restoration of injured natural 
resources and services that are not fully addressed by response actions 
conducted pursuant to the NCP.

III. Prohibition on Double Recovery

    The proposed rule requires trustees to consider the actions of 
other trustees with respect to the same incident and natural resources 
and the effect of the prohibition on double recovery of damages in OPA 
section 1006(d)(3). 

[[Page 39809]]


IV. Compliance With Other Applicable Laws and Regulations

    NEPA applies to restoration planning by federal trustees, unless a 
categorical exclusion applies. NEPA is triggered when federal trustees 
issue a Notice of Intent to Conduct Restoration Planning, under 
Sec. 990.43 of the proposed rule. NOAA believes that compliance with 
the procedures in the proposed rule would fulfill the requirements of 
NEPA.
    When taking actions under this proposed rule, trustees must comply 
with all worker health and safety considerations specified in the NCP 
for response actions.
    Where an incident implicates trustees' statutory or regulatory 
requirements in addition to those in OPA and this proposed rule, 
trustees should comply with those requirements. Compliance with all 
applicable laws and regulations will help to minimize duplicative and 
conflicting efforts. When following procedural requirements other than 
those specified by OPA and this proposed rule, trustees should identify 
those requirements in the restoration plan. Applicable requirements 
that may need to be considered include, but are not limited to the: 
Endangered Species Act; Coastal Zone Management Act; Migratory Bird 
Treaty Act; National Marine Sanctuaries Act; National Historic 
Preservation Act; Marine Mammal Protection Act; worker health and 
safety-related acts; and NCP. To the extent that federal trustees can 
legally comply with state, local, or Indian tribal procedural 
requirements, they should do so.

V. Settlement Authority

    Trustees may settle claims for natural resource damages at any 
time, provided that the settlement is adequate in the judgment of the 
trustees to make the environment and public whole for the injury, 
destruction, loss of, or loss of use of natural resources and/or 
services that have or are likely to have occurred; with particular 
consideration of the adequacy of the compensation to provide for the 
restoration of such resources. Sums recovered in settlement of such 
claims may only be expended in accordance with a restoration plan that 
is made available for public review.

VI. Emergency Restoration

    Emergency restoration actions should be considered in situations 
where immediate action is necessary to minimize continuing or prevent 
additional injury. Although emergency restoration actions may be 
considered and implemented by trustees at any time throughout the NRDA 
process if the above conditions are met, typically trustees begin 
evaluating the need for emergency restoration during response. If 
emergency restoration actions have the potential to interfere with the 
response, trustees must consult and/or coordinate with response 
agencies prior to implementing emergency restoration. Where emergency 
restoration actions are not expected to interfere with response 
activities, trustees must notify response agencies prior to 
implementation of emergency restoration to inform the latter of the 
trustees' intended actions and reasoning for believing that no 
interference with the response will result.
    Trustees must provide notice to the responsible parties of any 
emergency restoration actions and invite their participation in the 
conduct of those actions within a reasonable timeframe.
    Emergency restoration is an exception to the OPA section 1006(c)(5) 
requirement that actions be subject to prior public review and comment. 
Because of this exception, this proposed rule allows trustees to take 
emergency restoration action only if such action is feasible, likely to 
achieve the goal of minimizing or preventing injury, and is conducted 
at a cost that is not unreasonable. Notifying the public of the 
justification for, the nature and extent of, and the results of 
emergency restoration actions within a reasonable time following the 
actions is consistent with emergency action guidance under NEPA as 
well.
    The costs associated with evaluating, planning, and implementing 
emergency restoration may be claimed as part of the damages claim.

Subpart C--Definitions

    There are a number of fundamental terms and concepts that are not 
explicitly defined or described in OPA. Interpretation of these terms 
and concepts plays a critical role in the NRDA process under OPA.
    Relevant definitions in OPA, CERCLA, the Clean Water Act, or other 
related laws, and associated regulations, are repeated in this proposed 
rule as a matter of reference. Other terms and concepts found in this 
proposed rule were developed to be consistent with current usage.
    This section concentrates on some of the terms and concepts that 
are foundational to the NRDA process under this proposed rule, such as 
``injury,'' or terms that do not possess a common meaning.

Baseline

    As defined in this proposed rule, the term baseline refers to the 
condition of natural resources and/or services that would have existed 
had the incident not occurred. Although injury quantification requires 
comparison to a baseline condition, site-specific baseline information 
may not be required. In many cases, injuries can be quantified in terms 
of incremental changes, rather than in terms of absolute changes 
relative to a known baseline. For example, Type A models do not require 
site-specific baseline information to quantify injury. Rather, the 
injury is quantified in terms of incremental adverse changes resulting 
from the incident. Similarly, counts of oiled bird carcasses can be 
used as a basis for quantifying incremental bird mortality resulting 
from an incident.
    This proposed rule does not distinguish between baseline, 
historical, reference or control data in terms of value and utility in 
determining the degree and spatial/temporal extent of natural resource 
and/or service injuries. To the extent that baseline data, historical 
data, reference data or control data can provide valid information on 
which to base a determination of the projected conditions of the 
natural resource and/or service in the absence of the incident, these 
forms of data may effectively serve as baseline information. Trustees 
are encouraged to collect information from the field, laboratory, 
literature, models, or any combination thereof.
    Types of information that may be useful in determining baseline 
include:
    (1) Information collected on a regular basis and for a period of 
time;
    (2) Information identifying historical patterns or trends;
    (3) Information from areas unaffected by the incident, that are 
judged sufficiently similar to the area of the incident with respect to 
the variable being measured; or
    (4) Information from the area of the incident after the particular 
variable, e.g., interim lost use, has been judged to have recovered.

Exposure

    Exposure documentation is required to determine injury under this 
proposed rule except when natural resource and/or service injuries are 
the result of response activities or the substantial threat of a 
discharge of oil. Exposure can be expressed broadly as direct or 
indirect contact with the discharged oil. Exposure may be determined, 
alone or in combination, through: field investigations; laboratory 
exposure studies; transport and fate modeling; or the literature. 

[[Page 39810]]


Incident

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

Injury

    OPA authorizes trustees to recover damages for ``injury to, 
destruction of, loss of, or loss of use of'' natural resources (sec. 
1002(b)(2)(A)). Trustees must establish that injury has resulted from 
an incident. Under this proposed rule, injury is defined as an 
observable or measurable adverse change in a natural resource or 
impairment of a natural resource service. Measurable adverse changes 
may be projected through use of models or extrapolation techniques.
    There are two general bases for determining injury under this 
proposed rule. Trustees must either determine that: (1) The natural 
resource was exposed, there is a pathway connecting the incident with 
the resource, and an adverse change to the natural resource and/or 
service has occurred; or (2) for injuries resulting from response 
actions or incidents involving a substantial threat of a discharge, an 
injury to a natural resource or an impairment of use of a natural 
resource service has occurred as a result of the incident. Thus, under 
this proposed rule, injury may result from direct or indirect exposure 
to oil, as well as from response-related activities, and loss of 
services is explicitly included in the definition of injury.

Oil

    Under OPA section 1001(23), ``oil'' includes:

    Oil of any kind or in any form, including, but not limited to, 
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes 
other than dredged spoil, but does not include petroleum, including 
crude oil or any fraction thereof, which is specifically listed or 
designated as a hazardous substance under subparagraphs (A) through 
(F) of section 101(14) of [CERCLA] and which is subject to the 
provisions of that Act.

    If a component of a mixed spill is a hazardous substance under 
CERCLA, CERCLA and the CERCLA NRDA regulations apply. The definition of 
``oil'' under OPA does not cover all petroleum-related products. For 
instance, substances whose properties or behavior are substantially 
different from oil (e.g., natural gas condensates) are excluded under 
OPA. However, substances that are relatively similar (e.g., non-
petroleum oils such as vegetable oils and animal fats) are covered by 
OPA. Although the U.S. EPA and U.S. Coast Guard have recognized that 
animal fats and vegetable oils are substantially less harmful to the 
environment than petroleum-based oils, the preamble to the recent 
revisions to the NCP states that ``oil of any kind or in any form'' 
clearly suggests the inclusion of non-petroleum oils. 59 FR 47386 
(Sept. 15, 1994). This conclusion is also consistent with U.S. 
Department of Transportation guidance, which states that ``oil'' 
includes ``petroleum, fuel oil, vegetable oil, animal oil, sludge, oil 
refuse, and oil mixed with wastes other than dredged spoil, but does 
not include natural gas condensate.'' 49 CFR 194.5. While the mechanism 
of injuries by non-petroleum oils may be different than that of 
petroleum oils, it is evident, based on current literature, the nature 
of such injuries are similar (i.e., death) for both types of oils.
    According to EPA guidance, ``oil'' covered by OPA includes: (1) 
Crude oil and fractions of crude oil including the hazardous 
substances, such as benzene, toluene, and xylene, which are indigenous 
to petroleum and its refined products; and (2) hazardous substances 
that are normally mixed with or added to crude oil or crude oil 
fractions during the refining process, including hazardous substances 
that have increased in level as a result of the refining process. (U.S. 
EPA Memorandum on the Petroleum Exclusion Under the Comprehensive 
Environmental Response, Compensation, and Liability Act, July 31, 1987; 
BNA, 1988) Hazardous substances added to petroleum that increase in 
concentration through any process other than refining, or added as a 
result of contamination of the petroleum during use (including waste 
oil), would not be excluded from CERCLA. For example, the presence of 
dioxin in oil used as a dust suppressant on highways would bring a 
discharge of such a mixture under the jurisdiction of CERCLA, not OPA.
Pathway

    Pathways include the medium, mechanism, or route by which the 
incident has resulted in an injury. For discharges of oil, a pathway is 
the sequence of events by which: (1) The oil travelled through various 
components of an ecosystem and contacted the natural resource of 
concern; or (2) exposure to oil in one part of an ecosystem was 
transmitted to the natural resource of concern, without the oil 
directly contacting the natural resource.

Reasonable Assessment Costs

    To evaluate the reasonableness of assessment costs, the incremental 
increase in assessment information must be reasonably related to the 
action's incremental cost. The scale of assessment efforts must be 
appropriate in the judgment of the trustees relative to the need for 
increased information, which is a highly incident-specific 
determination. The costs of an assessment or assessment actions that 
are focused on providing information required to determine restoration 
requirements must also be judged relative to the extent of injury and 
expected restoration costs for the incident. Reasonable assessment 
costs also include the administrative, legal, and enforcement costs 
necessary to carry out this part. Trustees may recover the reasonable 
assessment costs they incur under this proposed rule even if they 
ultimately determine not to pursue restoration, provided they establish 
jurisdiction under OPA during the Preassessment Phase.

Recovery

    Recovery is defined in the proposed rule as the return of injured 
natural resources and services to baseline. This concept encompasses 
the inherent tendency for natural resource and/or service attributes to 
vary over space and time.
    Projecting recovery involves determining the likelihood and rate at 
which natural resources and/or services will return to baseline. The 
availability and quality of baseline information can influence recovery 
projections. Trustees should use the best available information that 
can be gathered through field or laboratory studies, models, the 
literature, and other sources appropriate to the incident or injury to 
project recovery.

Restoration

    Under this proposed rule, restoration is broadly defined as any 
action or combination of alternatives or actions to restore, 
rehabilitate, replace, or acquire the equivalent of injured natural 
resources and services.
    This proposed rule includes the concepts of primary and 
compensatory restoration. Primary restoration is human intervention or 
natural recovery that returns injured natural resources 

[[Page 39811]]
and services to baseline. Compensatory restoration is action taken to 
make the environment and the public whole for service losses that occur 
from the date of the incident until recovery of the injured natural 
resource.

Services

    Natural resources are valued in terms of the services or functions 
they provide to other natural resources or the public. Thus, under this 
proposed rule, services refer to the ecological functions performed by 
natural resources or the public benefits derived therefrom. Such 
services can be classified as follows:
    (1) Ecological services--the physical, chemical, and biological 
functions that one natural resource provides for another. Examples 
include provision of food, protection from predation, nesting habitat, 
and biodiversity, among others; and
    (2) Public services--the functions that natural resources provide 
for the public. Examples include fishing, hunting, nature photography, 
education, and access, among others.

Value

    An individual's value of a good is represented by the amount of 
other items that the individual is willing to give up to obtain or is 
willing to accept to forgo the good. The total value of a natural 
resource or service includes direct use values (e.g., values 
individuals derive from consuming or viewing a natural resource) and 
passive use values (values not linked to direct use, e.g., the value 
individuals derive from knowing a natural resource exists). In many 
contexts, particularly in markets, value is represented in terms of 
units of currency, the commonly accepted form of exchange. However, 
value can be measured using a variety of possible measures, including 
units of a resource service. In this proposed rule, value can be 
measured either in terms of units of resource services or dollar 
amounts.

Subpart D--Preassessment Phase

I. Purpose

    During the Preassessment Phase, trustees make several critical 
determinations that shape the remainder of the assessment. Trustees 
must initially determine whether actions under OPA are justified, then 
proceed to make early estimates about the types of injury assessment 
and restoration actions that may be warranted, based on the 
circumstances of a given incident.

II. Determinations

A. Determination of Jurisdiction
    In order for trustees to proceed with restoration planning under 
OPA, certain conditions must be met:
    (1) An ``incident'' under OPA has actually occurred (i.e., there 
has been a discharge or substantial threat of a discharge of oil);
    (2) The incident does not fall within exclusionary conditions set 
forth in section 1002(c) of OPA (e.g., the discharge was not allowed by 
federal permit); and
    (3) Natural resources under the trusteeship of the trustees have or 
may be affected as a result of the incident.
    Frequently, the first two conditions are determined by the response 
agency; USCG or EPA may have already made these determinations that OPA 
applies to the incident before notifying trustees. The third condition, 
however, is necessarily determined by each trustee. If any of these 
conditions is not met, the trustees may not take additional action 
under this proposed rule.
    A determination that OPA applies and that a trustee has 
jurisdiction to act under OPA may trigger initiation of the NRDA 
process.
B. Determination to Conduct Restoration Planning
1. General
    The key determination to be made by trustees in the Preassessment 
Phase is whether it appears likely that restoration actions should be 
pursued by the trustees. This determination depends on the following 
conditions:
    (a) Injuries likely have resulted or will result from the incident;
    (b) Response actions may not adequately address the potential 
injuries; and
    (c) Feasible restoration actions exist to address the potential 
injuries.
    If any of the above conditions is not met, trustees may not take 
additional action under this part. However, trustees may recover all 
reasonable assessment costs incurred up to the point when they 
determined that the conditions were not met. If all of the above 
conditions are met, the trustees must issue a ``Notice of Intent to 
Conduct Restoration Planning'' (Notice). The form and content of this 
Notice will vary depending on the circumstances of individual 
incidents, and is discussed below.
    Other factors to consider during the Preassessment Phase include: 
funding, data collection, and opening the administrative record. 
Trustees may also need to consider the applicability of the defenses to 
liability provided in OPA section 1003 and the monetary caps on 
liability provided in OPA section 1004.
2. Identifying Natural Resources and/or Services at Risk
    Determining whether natural resources and/or services are, or are 
likely to be, injured requires that trustees consider the:
    (a) Circumstances of the incident. Factors to consider may include 
geographic location, source, type, time and duration, and volume of the 
discharge;
    (b) Characteristics of the discharge or threatened discharge. 
Factors to consider may include physical parameters of the oil;
    (c) Characteristics of the natural resources. Factors to consider 
may include the natural resources in the area of the incident, the 
services they provide, habitat and species types, seasonal implications 
on sensitive life stages, and unique ecological components; and
    (d) Potential for injury. Factors to consider may include potential 
for exposure, plausible pathways, causal mechanisms, and availability 
of assessment procedures and data to analyze these factors.
3. Effectiveness of Response Actions in Eliminating Injury
    Once trustees ascertain that trust resources and/or services are, 
or may be expected to be, injured as a result of the incident, trustees 
can make the determination whether these concerns are likely to be 
adequately addressed through response actions. If response actions will 
not alleviate residual natural resource and/or service injuries, 
trustees must determine whether there is a need and potential for 
restoration actions to address residual impacts, and begin identifying 
these actions, to facilitate the Restoration Planning Phase of the NRDA 
process.
4. Early Identification of Potential Restoration Actions
    Whenever practicable, potential restoration actions need to be 
identified as early in the NRDA process as possible. Such 
identification is needed to help justify the decision to proceed with 
an assessment that will lead to restoration actions, and provide focus 
for designing injury assessment studies that will produce useful 
information on the type and scale of restoration needed for injured 
natural resources and services. Some considerations important to the 
early identification of restoration actions include:

[[Page 39812]]

    (a) Potential nature, degree, and spatial/temporal extent of 
injury, with or without restoration;
    (b) Need and potential for restoration;
    (c) Potential scope and scale of restoration;
    (d) Extent to which relevant information is known, or the time and 
money required to obtain such information; and
    (e) Requirements imposed by other laws and regulations that would 
affect restoration.
    If trustees determine that restoration actions are appropriate to 
the incident, the trustees should proceed to the Restoration Planning 
Phase.

III. Notice of Intent to Conduct Restoration Planning

    If the trustees determine that there is a reasonable likelihood 
that injury has occurred as a result of the incident and restoration 
actions that would address these injuries should be pursued, the 
trustees may proceed with injury assessment. At this point, the trustee 
must prepare the Notice of Intent to Conduct Restoration Planning 
documenting the trustees' preassessment activities and the basis for 
the decision to proceed. Depending on information available at this 
early stage of the assessment process, the Notice may also include a 
description of the trustees' proposed strategy to assess injury and 
determine the scope and scale of restoration. The contents of a Notice 
may vary, but will typically discuss:
    (a) The facts of the incident;
    (b) Trustee authority to proceed with assessment;
    (c) Natural resources and/or services that are, or are likely to 
be, injured as a result of the incident;
    (d) Potential restoration actions relevant to the expected 
injuries; and
    (e) If determined at the time, potential procedures to assess 
injuries, and determine the appropriate scope and scale of restoration 
for the affected natural resources and services.
    The Notice must be made publicly available. The means by which it 
is made publicly available and whether public comments are solicited on 
the Notice will depend on the scope and scale of the incident, and the 
need to conduct further investigation to identify likely injury 
assessment and restoration actions, among other things. Trustees must 
also provide a copy of the Notice to the known responsible parties and 
invite their participation in the conduct of restoration planning.

IV. Administrative Record

    The administrative record facilitates the restoration process by 
providing a central repository for all materials relied upon by 
trustees in making final determinations about restoration actions 
appropriate for an incident. The administrative record should be opened 
after trustees determine the need to conduct restoration planning. The 
Notice will identify a trustee representative to contact with questions 
regarding the administrative record.
    The administrative record must contain sufficient information to 
support the public's review of the trustees' decisionmaking process. 
The administrative record must contain documents and other factual 
information considered by trustees in selecting assessment actions, 
including documents that support options the trustees ultimately 
rejected. Pertinent documents submitted in a timely manner by the 
responsible parties and public, including public comments, must be 
included in the administrative record.
    The administrative record should be limited to final documents when 
possible. Where no final document is available at the time of selection 
of restoration actions, the draft may be included in the administrative 
record if the document contains information not found in other 
documents in the record, but which is considered by the trustees in 
selecting a restoration action. Pre-decisional, deliberative internal 
agency memoranda should be treated like draft documents, i.e., excluded 
from the record, unless relied upon in choosing restoration actions.
    Ordinarily, the administrative record should include: the Notice, 
draft and final restoration plans, and public comments. Any relevant 
data, investigation reports, scientific studies, work plans, quality 
assurance plans, decision documents, and literature may be included in 
the administrative record. Any agreements among the participating 
trustees or with the responsible parties should also be included in the 
administrative record.
    Although this proposed rule is silent on the standard of review for 
NRDA, NOAA expects that assessments and restoration selection based on 
an open administrative record will be afforded review on the record by 
the courts.

V. Data Collection During Preassessment

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

Subpart E--Restoration Planning Phase

I. Purpose

    The purpose of the Restoration Planning Phase is to evaluate 
information on potential injuries to natural resources and/or services 
(injury assessment), and use that information to determine the need for 
and scale of restoration actions (restoration selection). The NRDA 
process is essentially a restoration scoping exercise, and the various 
studies and analyses conducted during this phase should be viewed from 
the restoration perspective.
    During the Restoration Planning Phase, trustees should focus on 
determining which natural resources and services need to be restored, 
and how to design and scale that restoration. Potential NRDA activities 
should be scrutinized closely to ensure that the results will be useful 
and relevant to restoration.
    The Restoration Planning Phase integrates and provides the linkage 
between injury and restoration, through the injury assessment and 
restoration selection components of the phase. Development of a 
conceptual linkage between injury and restoration early in the NRDA 
process (i.e., in the Preassessment Phase) should both expedite the 
assessment process and minimize costs by assisting the trustees in: 
focusing on the most relevant injuries to be included in the 
assessment; designing studies that are relevant to restoration; and 
designing appropriate restoration projects.

II. General Criteria for Acceptable Procedures

    In order to be in accordance with this proposed rule, any 
procedures for assessing injury and scaling restoration actions must be 
consistent with the following criteria:
    (a) If available, injury determination and quantification 
procedures that provide information of use in determining the 
appropriate type and 

[[Page 39813]]
level of restoration appropriate for a particular injury or loss shall 
be used;
    (b) If a range of procedures providing the same type and quality of 
assessment information are available, the most cost-effective procedure 
will be used;
    (c) The incremental cost of more complex studies must be reasonably 
related to the expected increase in relevant assessment information 
provided by the more complex study; and
    (d) Procedures selected must be reliable and valid for the 
particular context.

III. Injury Assessment

A. Purpose
    The goal of injury assessment, which includes determination and 
quantification of injury, is to determine the nature, degree, and 
spatial/temporal extent of injuries to natural resources and/or 
services, thus providing a technical basis for evaluating the need for 
and scale of restoration. While the basic steps discussed below are 
applicable to all assessments, selection of approaches for 
demonstrating exposure, pathway, and injury will be incident-specific. 
Thus, this proposed rule provides a range of possible procedures and 
methods for injury determination and quantification, including 
simplified (e.g., models, literature extrapolation) and more detailed 
procedures (e.g., generation of original data). Trustees are encouraged 
to use simplified procedures, when appropriate.
    Under OPA, trustees must determine whether injuries ``resulted 
from'' the incident. Establishing that a specific injury has resulted 
from a particular incident may be accomplished through a number of 
procedures, alone or in combination. These include field 
investigations, laboratory studies, models, and the literature.
    To determine injury under this proposed rule, trustees must 
determine if:
    (1) The definition of ``injury'' is met; and
    (2) The injured natural resource has been exposed to the discharged 
oil and a pathway links the incident and the injured natural resource 
and/or service, or,

for injuries resulting from response actions or incidents involving a 
substantial threat of a discharge, an injury or an impairment of use of 
a natural resource service has occurred as a result of the incident.
    If any of the above conditions for determining injury provided in 
this section is not met, trustees may not take additional action under 
this part. However, trustees may recover all reasonable assessment 
costs incurred up to the point when they determined that the conditions 
were not met. If all the conditions are met, trustees may proceed with 
the assessment. These steps and concepts are described in more detail 
below.
B. Injury Determination
1. Definition of Injury
    Under this proposed rule, trustees must determine if the definition 
of ``injury'' has been met. ``Injury'' is defined as an observable or 
measurable adverse change in a natural resource or impairment of a 
service.
    Injury includes adverse changes in the chemical or physical quality 
or viability of a natural resource. The simplest example is death of an 
organism, but indirect, delayed, or sublethal effects may also be 
considered. Other potential categories of injuries include adverse 
changes in: survival, growth, and reproduction; health, physiology and 
biological condition; behavior; community composition; ecological 
processes and functions; physical and chemical habitat quality or 
structure; and services to the public.
    Although injury often is thought of in terms of adverse changes in 
biota, the definition of injury under this rule is broader. Injuries to 
non-living resources (e.g., removal of oiled sand on a beach) as well 
as injuries to resource services (e.g., lost use associated with a 
fisheries closure to prevent harvest of tainted fish, even though the 
fish themselves may not be injured) may be considered.
    This list of potential adverse changes is not intended to be 
inclusive of all injuries that trustees may evaluate.
2. Exposure
    The purpose of the exposure portion of an injury assessment is to 
determine whether natural resources came into contact with the oil from 
the incident. Early consideration of exposure (i.e., ideally during the 
Preassessment Phase) should help to focus the assessment on those 
natural resources and/or services that are most likely to be affected 
by an incident.
    Trustees must determine whether the natural resource came into 
contact, either directly or indirectly with the oil discharged from the 
incident. Under this proposed rule, exposure is broadly defined to 
include not only direct physical exposure to oil, but also indirect 
exposure (e.g., injury to a organism as a result of a food web 
disruption). Documenting exposure is a prerequisite to determining 
injury, except for response-related injuries and injuries from 
substantial threats of discharges. However, evidence of exposure alone 
may not be sufficient to conclude that injury to a natural resource has 
occurred (e.g., the presence of petroleum hydrocarbons in oyster 
tissues may not, in itself, constitute an injury).
    Exposure can be demonstrated with either quantitative or 
qualitative methods. As with other elements of the NRDA process, 
selection of approaches for demonstrating oil exposure will depend on 
the type and volume of discharged oil, natural resources at risk, and 
nature of the receiving environment. For example, chemical analysis of 
oil in sediments, alone, may not be adequate to conclude that a benthic 
organism was otherwise exposed to the oil. Likewise, the presence of 
petroleum in fish tissue, alone, may not be adequate to link the 
exposure to the discharge because metabolism of the oil may blur the 
chemical characterization. The combination of the two approaches may, 
however, demonstrate exposure.
    Typically, procedures for exposure analysis include: (a) Field 
observations or measurements; (b) laboratory exposure studies; (c) 
transport and fate modeling; and (d) the literature. This proposed rule 
emphasizes that these procedures may be used alone, or in combination, 
depending on the specific nature of the incident. Trustees must 
determine the most appropriate approach to evaluating exposure on an 
incident-specific basis. For example, for some types of incidents, 
visual observation in the field and/or modeling may be sufficient to 
evaluate exposure. For other incidents, more involved site-specific 
sampling, including chemical analysis and biological data collection, 
may be more appropriate.
3. Pathways
    To determine whether an injury resulted from a specific incident, a 
plausible pathway linking the incident to the injury must be 
identified. As with exposure, demonstrating a pathway is a prerequisite 
to determining injury, but evidence of a pathway, alone, is not 
sufficient to conclude that injury has occurred (e.g., demonstrating 
that prey species are oiled can be used to document that a plausible 
pathway to a predator species exists. However, such data do not, in 
themselves, demonstrate that the predator species is injured).
    Pathway determination can include evaluation of either:
    (a) The sequence of events by which the discharged oil was 
transported from the incident and came into direct 

[[Page 39814]]
physical contact with the exposed natural resource (e.g., oil 
transported from an incident by ocean currents, wind, and wave action 
to directly oil shellfish); or
    (b) The sequence of events by which the discharged oil was 
transported from the incident and caused an indirect impact on a 
natural resource and/or service (e.g., oil transported from an incident 
by ocean currents, wind, and wave action cause reduced populations of 
bait fish, which in turn results in starvation of a fish-eating bird; 
or, oil transported from an incident by currents, wind, and wave action 
causes the closure of a fishery to prevent potentially tainted fish 
from being marketed).
    Pathway determination does not require that injured natural 
resources and/or services be directly exposed to oil. In the example 
provided above, fish-eating birds are injured as a result of decreases 
in food availability. However, trustees must always determine the 
existence of a plausible pathway relating the incident to the injured 
natural resource and/or service, even if the injury is not caused by 
direct exposure to oil.
    Pathways can include, but are not limited to, movement/exposure 
through the: water surface; water column; sediments, including bottom, 
bank, beach, floodplain sediments; groundwater; soil; air; direct 
accumulation; and food-chain uptake.
    As with exposure determination, procedures for pathway analysis 
include field investigations, laboratory studies, modeling, and the 
literature. As noted above, this proposed rule emphasizes that these 
procedures may be used alone, or in combination, depending on the 
specific nature of the incident. Trustees must determine the most 
appropriate approach to determine whether a plausible pathway exists on 
an incident-specific basis.
    Understanding the potential pathways will also help to narrow the 
scope of the NRDA investigation, and may be important in deciding which 
assessment procedures to use. For example, the Type A model does not 
address injuries that occur via air or terrestrial pathways, thus it 
would not be appropriate in such cases.
4. Selection of Injuries to Include in the Assessment
    During the Preassessment Phase, trustees may collect information on 
a wide range of potential injuries. As a result, a long inventory of 
potential injuries resulting from the incident is often developed. 
Because the collection of information on injury must be directly 
related to the incident and consistent with restoration planning, 
developing scientific knowledge for its own sake is not appropriate 
under this rule.
    To compile the inventory of potential injuries, trustees should 
determine the extent to which the following information is known or can 
be obtained for each injury:
    (a) The natural resource/service of concern;
    (b) The adverse change that constitutes injury;
    (c) The potential degree, and spatial/temporal extent of the 
injury;
    (d) The evidence indicating injury;
    (e) The mechanism by which injury occurred;
    (f) The evidence indicating exposure;
    (g) The pathway from the incident to the natural resource/service 
of concern;
    (h) The potential natural recovery period;
    (i) The kinds of primary and/or compensatory restoration actions 
that are feasible; and
    (j) The kinds of procedures available to evaluate the injury, and 
the time and money requirements.
    The result of the above analysis will be a list of injuries to be 
evaluated in the assessment.
C. Injury Quantification
    Injury quantification is the process by which trustees determine 
the degree and spatial/temporal extent of injuries. Thus, injury 
quantification is the means by which appropriate restoration is 
determined.
1. Conceptual Approaches to Quantification
    Trustees may pursue one or more of several different conceptual 
approaches to injury quantification. Under these approaches, injury may 
be quantified in terms of: (a) The degree and spatial/temporal extent 
of injury to a natural resource; (b) the degree and spatial/temporal 
extent of injury to a natural resource with subsequent translation of 
that change to a reduction in services provided by the natural 
resource; or (c) the amount of services lost as a result of the 
incident. Examples of the first approach include quantifying the number 
of seabird mortalities caused by a discharge of oil, or measurement of 
the area of a river in which hydrocarbon concentrations exceed water 
quality standards. Examples of the second approach include quantifying 
reductions in fish populations with subsequent estimation of the number 
of recreational fishing days lost as a result of this injury, or 
quantifying the amount of lost spawning habitat as a result of oiling 
with subsequent estimation of the number of fish that would have been 
produced by that habitat. An example of the third approach includes 
direct measurement of the number of beach user days lost as a result of 
a beach closure. Trustees are encouraged to use whichever approach, or 
combination of approaches, is most appropriate to the circumstances of 
the incident.
    For reasons indicated in subpart C under the definition of baseline 
in the preamble, site-specific baseline information may not be 
required.
2. Injury Quantification Information Needs
    Because the purpose of injury quantification is to design and scale 
restoration actions, a large number of quantification measures may be 
adopted by trustees. In general, injury quantification should be 
designed to evaluate injury by addressing the following:
    (a) Degree of the injury. Degree may be expressed in terms of 
percent mortality, proportion of a population, species, community, or 
habitat affected, extent of oiling, and availability of substitute 
services.
    (b) Spatial extent of the injury. Spatial extent may include 
quantification of the total area or volume of injury.
    (c) Temporal extent of the injury. Duration of injury may be 
expressed as the amount of time that the natural resource and/or 
service will be injured until natural recovery occurs, including past 
and interim injury periods.
    In order to scale restoration actions, trustees may find it useful 
to develop an estimate of the total quantity of injury that integrates 
severity, and spatial and temporal extent of injury. For example, 
quantification of the total losses of wetland habitat injured by oil 
could be obtained by estimating the: (a) Total number of acres of 
severely oiled wetland in which vegetation is totally killed; (b) 
natural recovery time for severely oiled wetland; (c) total number of 
acres of moderately oiled wetland in which vegetation is not completely 
killed but the wetland has lower levels of productivity; and (d) 
natural recovery time for moderately oiled wetland. This information 
could be combined to quantify the total number of ``acre-years'' of 
wetland injury to scale restoration actions.
D. Analysis of Natural Recovery
    Trustees must estimate the time for natural recovery without 
restoration, but including any response actions. Recovery is defined as 
a return of injured natural resources and services to baseline. 
Analysis of recovery times 

[[Page 39815]]
may include evaluation of factors such as: (a) Degree and spatial/
temporal extent of injury; (b) sensitivity of the injured natural 
resource and/or service; (c) reproductive potential; (d) stability and 
resilience of the affected environment; (e) natural variability; and 
(f) physical/chemical processes of the affected environment. Approaches 
to estimating recovery times include literature reviews of recovery at 
similar sites or for similar species, computer models, and professional 
judgement.
E. Injury Assessment Procedures and Methods
1. General
    Whenever practicable, procedures should be chosen that provide 
information of use in determining the restoration appropriate for that 
injury. This proposed rule provides a range of assessment approaches, 
from simplified to more detailed. The technical and scientific adequacy 
of approaches will be judged based on the circumstances of the incident 
and injuries, and the information needed to determine restoration 
actions. Trustees should, however, first determine whether simplified 
assessment procedures are appropriate for a given incident. In general, 
more detailed assessment procedures may include, alone or in any 
combination, (a) field investigations; (b) laboratory methods; (c) 
model-based methods; and (d) literature-based methods.
2. Selection of Procedures
    Trustees must base their selection of assessment procedures on an 
evaluation of the following factors:
    (a) Potential nature, degree, and spatial/temporal extent of the 
injury;
    (b) Potential restoration actions for the injury;
    (c) Range of assessment procedures available, including the 
applicability of simplified assessment procedures;
    (d) Time and cost necessary to implement the assessment procedures; 
and
    (e) Relationship between the information generated by the 
assessment procedures and the information needed for restoration 
planning.
    When trustees have made a determination that a simplified 
assessment procedure is the most appropriate procedure for a given 
incident or injury, the responsible parties may request that trustees 
use incident-specific assessment procedures instead of a simplified 
assessment procedure if the responsible parties, in a timeframe 
acceptable to the trustees:
    (a) Identify the incident-specific assessment procedures to be used 
and the reasons supporting the technical appropriateness of such 
procedures for the incident or injury;
    (b) Advance the costs of using such incident-specific assessment 
procedures; and
    (c) Agree not to challenge the reasonableness of the costs of using 
such incident-specific assessment procedures.
3. Simplified procedures
    a. Type A procedures. Trustees may use the Type A procedures 
identified in 43 CFR part 11, subpart D, that address oil discharges 
provided that conditions are sufficiently similar to those listed in 43 
CFR 11.33 regarding use of the procedures. For further discussion, see 
Appendix C to this preamble.
    b. Compensation Formulas. In the January 1994 proposed rule, NOAA 
proposed compensation formulas for use for small incidents in estuarine 
and marine environments and inland waters. NOAA is now considering 
temporarily reserving those formulas. For further discussion, see 
Appendix C to this preamble.
4. Incident-specific procedures
    Trustees may also use incident-specific assessment procedures, 
provided they are cost-effective and relevant to determining the scope 
and scale of restoration appropriate for that injury. Incident-specific 
assessment procedures include, alone or in any combination:
    (i) Field methods;
    (ii) Laboratory methods;
    (iii) Model-based methods; and
    (iv) Literature-based methods.

IV. Restoration Selection

A. Purpose
    Once injury assessment is completed, trustees must develop a plan 
for restoring the injured natural resources and services. Under the 
proposed rule, trustees must identify a reasonable range of restoration 
alternatives, evaluate those alternatives, select an alternative, 
develop a Draft Restoration Plan for public review, and produce a Final 
Restoration Plan that addresses public concerns.
B. Development of a Reasonable Range of Alternatives
1. General
    Trustees must identify a reasonable range of alternative 
restoration actions for consideration, except as provided in 
Sec. 990.58 regarding the use of a Regional Restoration Plan. 
Generally, trustees will identify a package of actions and/or services. 
However, if there is a reasonable basis for separately evaluating 
actions to restore separate natural resources and/or services, then 
trustees may do so. Acceptable restoration actions include any of the 
actions authorized under OPA (i.e. restoration, rehabilitation, 
replacement, or acquisition of the equivalent), any combination of 
those actions, and natural recovery.
    Restoration alternatives may have two components: (a) Primary 
restoration, which is human intervention or natural recovery that 
returns injured natural resources and services to baseline; and (b) 
compensatory restoration, which is action taken to make the environment 
and the public whole for service losses that occur from the date of the 
incident until recovery of the injured natural resources.
    What constitutes a reasonable range of alternatives will vary from 
case to case but must always include a no-action alternative. A no-
action alternative is not the same as a natural recovery alternative. 
Under the no-action alternative, no human intervention would be taken 
for primary or compensatory restoration. In contrast, under a natural 
recovery alternative, human intervention could be taken for 
compensatory restoration action. A natural recovery alternative could 
also include minimal primary restoration actions by trustees to prevent 
interference with natural recovery (e.g., closing an area to human 
traffic).
2. Primary Restoration
    Alternative primary restoration actions can range from natural 
recovery with no human intervention, to actions that prevent 
interference with natural recovery, to more intensive actions expected 
to return injured natural resources to baseline faster or with greater 
certainty than natural recovery.
    When developing the primary restoration components of the 
restoration alternatives, trustees must define the desired outcome to 
be accomplished, and the criteria by which successful recovery will be 
judged. The goals and objectives should be clear and site-specific. The 
trustees should define the minimal acceptable criteria for recovery.
    When identifying primary restoration alternatives to be considered, 
trustees should first consider whether activities exist that would 
limit the effectiveness of restoration actions (e.g., residual sources 
of contamination). Trustees should also consider whether any primary 
restoration actions are necessary or feasible to return the physical, 
chemical, and biological conditions necessary to allow recovery 

[[Page 39816]]
or restoration of the injured resources (e.g., replacement of sand or 
vegetation). Trustees should consider whether restoration actions 
focusing on certain key species or habitats would be an effective 
approach to achieving baseline conditions.
3. Compensatory Restoration
    In addition to primary restoration, trustees have the discretion to 
include a compensatory restoration action in some or all of the 
restoration alternatives. The service loss that must be addressed by a 
particular compensatory restoration action will vary depending on the 
nature of the primary restoration component of the overall restoration 
alternative.
a. Developing Types of Alternatives
    When identifying the compensatory restoration components of the 
restoration alternatives, trustees must first consider compensatory 
restoration actions that provide services of the same type and quality 
as those lost. This is the preferred approach to identifying 
compensatory restoration actions. If, however, such actions are 
infeasible, or too few in number to provide a reasonable range of 
alternatives, trustees may then include other compensatory restoration 
actions among the alternatives, so long as the actions will provide 
services of at least comparable type and quality as those lost, in the 
judgment of the trustees.
b. Scaling Compensatory Restoration Actions
    To ensure that a compensatory restoration action will appropriately 
compensate for the service loss, trustees must scale the action. The 
approaches that may be used to assess the appropriate scale of a 
compensatory restoration action include the service-to-service approach 
and the valuation approach.
i. Service-to-Service Approach
    Under the service-to-service approach to scaling, the appropriate 
quantity of replacement services is determined by obtaining equivalency 
between lost and replacement services after discounting appropriately. 
Trustees must use the service-to-service approach for alternatives that 
provide services that are of the same type and quality, and are subject 
to comparable resource scarcity and demand conditions as those lost. 
The third criterion is being proposed to address situations where the 
public will no longer have the same level of need for services of the 
same type and quality as those lost by the time the compensatory 
restoration alternative could be implemented. In such situations, a 
strict equivalency between quantities of lost and replacement services 
may not adequately compensate the public. NOAA solicits comment on the 
proposed criteria for use of the service-to-service approach.
    Under the service-to-service approach, NOAA recommends use of 
habitat equivalency analysis when lost resource services are primarily 
of indirect human use, for example, species habitat or biological 
resources. (See Appendix D at the end of this preamble for a 
description of habitat equivalency analysis.) If lost services are 
human uses, for example recreational services, then a behavioral model 
of human use may be used to determine the scale of project necessary to 
attract the appropriate level of human uses. For example, if the 
interim lost services are lost recreational beach days, then the 
restoration alternative may be designed to provide the requisite number 
of recreational beach days by, perhaps, improving access to existing 
public beaches.
    NOAA is interested in receiving comments on these suggested methods 
as well as any additional methods that might be appropriate for use 
with the service-to-service approach.
ii. Valuation Approach
    In situations where trustees must consider alternatives that 
provide services that are of a different type or quality, or are 
subject to non-comparable resource scarcity or demand conditions than 
those services lost, trustees may use the valuation approach to 
scaling.
    The valuation approach requires that trustees determine the amount 
of services that must be provided to produce the same value lost to the 
public. The approach relies on the idea that lost value can be 
determined using one of a variety of possible units of exchange, 
including units of resource services or dollars. The valuation approach 
requires that the value of lost services be measured explicitly and 
that the compensatory restoration alternative provide services of 
equivalent value to the public. To properly scale the compensatory 
restoration alternative, the trustee might have to measure the values 
of varying sizes of the compensatory restoration alternative to 
determine the size of a project that will replace the value of lost 
services. For proper comparison, all values lost or provided over time 
should be converted into present value terms by discounting.
    Measuring the value of lost services in terms of units of 
replacement services rather than dollars may be the most direct 
approach to scaling the compensatory restoration alternative. Although 
such procedures are currently not well-defined in the literature, it is 
likely that the method would use a form of conjoint analysis. Other 
valuation methods include the travel cost method, factor income 
approach, hedonic price models, models of market supply and demand, and 
contingent valuation. (See Appendix D at the end of this preamble for 
descriptions of these methods.) Trustees are not limited to these 
methods, and may use any reliable method suitable for calculating 
interim lost value. Where the circumstances are such that a site-
specific application of one of these valuation methods does not meet 
the reasonable cost criterion, the trustees may consider estimating 
interim lost value using benefits transfer. The choice of approaches in 
a particular context will depend upon the types of injuries and the 
type of services provided by the compensatory restoration alternative.
    Trustees should consider using similar methods for measuring the 
value of the lost services and the value of the services provided by 
the compensatory restoration alternatives. If different valuation 
methods are used, then trustees should take steps to ensure that the 
variation in methods does not introduce bias. NOAA seeks comment on 
possible approaches for assessing and adjusting for biases that may 
occur in this situation.
    If valuation of the services provided by an alternative could not, 
in the judgment of the trustees, be performed consistent with the 
definition of reasonable assessment costs, the trustees may calculate 
the value of the lost services and then select the scale of a 
restoration alternative that has a cost equivalent to the lost value. 
The responsible parties will have the option of requesting that the 
trustees value the alternative, if the responsible parties, within a 
timeframe acceptable to the trustees, advance the costs of doing so and 
agree not to challenge the reasonableness of the costs of performing 
such valuation.
    Because the reformulated unified restoration approach envisions a 
fundamentally different role for valuation methods from what was 
contained in the January 1994 proposed rule, NOAA has not included 
standards for utilization of such methods in today's proposed rule. 
However, NOAA is still considering, and seeks comment on, whether 
standards for the use of valuation methods, including contingent 
valuation, should be included in the final rule (or in accompanying 
guidance documents), 

[[Page 39817]]
and, if so, what level of guidance would be appropriate.
c. Treatment of Uncertainty and Discounting
    When scaling a compensatory restoration action, trustees should 
address the uncertainties associated with the predicted consequences of 
restoration projects and must discount to the present the interim lost 
services, or the value of interim lost services due to the injury as 
well as the gain in services or the gain in service value from the 
restoration project. The reference date for the discounting calculation 
is the date at which the demand is presented.
    The choice of an appropriate discount rate is linked to the 
treatment of uncertainties associated with the losses due to the injury 
and the gains from the compensatory restoration alternative.
    NOAA recommends that, where feasible, the trustees should use risk-
adjusted measures of losses and gains, in conjunction with a riskless 
rate of discount serving as a proxy for the consumer rate of time 
preference. Alternatively, if the streams of losses and gains cannot be 
adequately adjusted for risks, then NOAA recommends use of a discount 
rate that incorporates a suitable risk adjustment to the riskless rate.
    The periods of losses due to injury and, particularly, the period 
of gains from compensatory restoration projects potentially extend far 
into the future. Because the rates of return on financial instruments 
vary substantially through time and future rates can be predicted 
imperfectly, NOAA recommends use of a long-term average of the rates of 
return from the selected instrument. The analysis will be conducted 
either in nominal terms (i.e., in dollars of the year in which the 
losses or gains are incurred) or in real terms (e.g., in units of 
services, or in dollars of a specified base year). The nominal U.S. 
Treasury rate shall be used if the components of the claim are 
denominated in nominal terms. Otherwise, if components of the claim are 
denominated in real terms (of the discounting reference year), then 
real U. S. Treasury rates are to be used. To calculate the real rates, 
trustees should use an appropriate price index to remove expected 
inflation from the appropriate nominal U.S. Treasury rate.
    NOAA seeks comment on various issues related to discounting the 
streams of consumer losses and gains. For what uncertainties is it most 
important for trustees to develop adjustments? What procedures are 
suitable for adjusting the streams of losses and gains for uncertainty? 
What is the appropriate price index to employ to adjust nominal 
discount rates for inflation (e.g., Gross Domestic Product deflator, or 
Consumer Price Index)? Should the discount rate be an after-tax rate, 
rather than a pre-tax rate? Is a long-term average of the rates of the 
selected instrument the best predictor of future rates? If so, over 
what period should the average be calculated?
    U.S. Treasury bill and bond rates may be found in the Federal 
Reserve Bulletin, issued monthly, or the Treasury Bulletin, issued 
quarterly. The Gross Domestic Product fixed-weighted price index and 
the Consumer Price Index may be found in the Survey of Current 
Business, issued monthly, and the Economic Report of the President, 
issued annually. The Administration prediction for future Gross 
Domestic Product deflators is updated twice annually at the time the 
budget is published in January or February and at the time of the Mid-
Session Review of the Budget in July. The current Treasury rates and 
inflation adjustment assumptions are reported in regular updates of 
Appendix C of Circular No. A-94, available from the OMB Publications 
Office (202-395-7332).
C. Restoration Alternatives for Simplified Assessment Procedures
    Simplified assessment procedures, described in Sec. 990.54(d) of 
the proposed rule, provide different types of results or output that 
can be used in designing and scaling incident-specific restoration 
actions. For example, when using the Type A model, trustees have 
several alternative approaches: (1) A restoration plan may be developed 
to address the injuries predicted by the model; (2) the restoration 
actions predicted by the Type A model may be implemented; or (3) the 
lost values resulting from a model run may be used to identify the 
scale of a project. As discussed below, the proposed rule also allows 
trustees to consider using a Regional Restoration Plan instead of 
developing an incident-specific restoration plan when they have used 
simplified assessment procedures.
D. Evaluation of Restoration Alternatives
1. General
    Once trustees have developed the restoration alternatives, they 
must evaluate those alternatives. This evaluation is based on the:
    (a) Extent to which each alternative can return the injured natural 
resources and services to baseline and make the environment and public 
whole for interim service losses;
    (b) Extent to which each alternative improves the rate of recovery;
    (c) Extent to which each alternative will avoid additional injury;
    (d) Level of uncertainty in the success of each alternative;
    (e) Extent to which each alternative benefits more than one natural 
resource and/or service;
    (f) Cost of each alternative;
    (g) Effects of each alternative on public health and safety, and 
the environment; and
    (h) Whether any alternative violates any laws or regulations.

Based on evaluation of the listed factors, trustees select a preferred 
restoration alternative. If there are two or more preferred 
alternatives, trustees must select the most cost-effective alternative.
2. Other Considerations
a. Pilot Restoration Studies
    If the range of restoration alternatives under consideration is 
limited or poorly developed, trustees may implement pilot studies.
b. Cost Benefit Analysis
    When selecting a restoration alternative, trustees should consider 
the relationship between costs and benefits. However, reducing the 
selection process to a strict comparison of restoration costs to 
monetized natural resource values is not required and may not be 
appropriate. Instead, the proposed rule would require trustees to 
evaluate each alternative according to a number of factors, identify a 
preferred alternative, select the most cost-effective alternative if 
there is more than one preferred alternative, and provide the public 
and responsible parties with an opportunity to review and comment on 
the trustees' selection. NOAA believes this approach provides adequate 
protection against selection of an inappropriately costly alternative. 
NOAA seeks comment on alternative approaches to the restoration 
selection process.
E. Draft Restoration Plan
1. Purpose
    After selecting a restoration alternative, trustees must prepare a 
Draft Restoration Plan. Development of a Draft Restoration Plan 
provides a vehicle for: (a) Informing the affected and interested 
public of the results of the trustees' analyses and decisions, and 
encouraging public comments; and (b) performing expert peer review, 
when comments are solicited from various professional communities or 
other knowledgeable persons.
2. Contents
    A Draft Restoration Plan should reflect the restoration planning 
process 

[[Page 39818]]
as provided above and must, at a minimum, contain: (a) A summary of 
injury assessment procedures and methods used; (b) a description of the 
nature, degree, and spatial/temporal extent of injuries to natural 
resources and/or services resulting from the incident; (c) the goals 
and objectives of restoration; (d) the range of restoration 
alternatives considered and a discussion of how such alternatives were 
identified and developed; (e) a discussion of the trustees' evaluation 
of the restoration alternatives; (f) a description of a monitoring plan 
for documenting restoration effectiveness and the need for corrective 
action and performance criteria for judging the success and completion 
of restoration and the need for corrective action; and (g) a 
description of the involvement of the responsible parties in the 
assessment process, and proposed involvement in the restoration 
process.
    The types of parameters that should be addressed in the monitoring 
plan may include: (1) Duration; (2) frequency of monitoring needed to 
gauge progress and success; (3) the level of sampling needed to detect 
success or the need for corrective action; and (4) whether monitoring 
of a control or reference site is needed to determine progress and 
success.
    Performance criteria include structural, functional, temporal, and 
other demonstrable goals that the trustees should determine with 
respect to all restoration actions. For example, an agreement to create 
new intertidal marsh habitat as compensation for marsh impacted by oil 
could be described by performance criteria including the number of 
acres to be created, the location, the elevation of new habitat, the 
species to be planted and details for planting such as density, and the 
timeframe in which identifiable stages of the project should be 
completed.
3. Public Review and Comment
    The information provided in the Draft Restoration Plan must be 
adequate to allow the public to objectively assess the injuries 
resulting from the incident and restoration actions being considered to 
remedy those injuries. The Draft Restoration Plan must be made 
available for at least a thirty (30) calendar day public review and 
comment period.
    The type of notice, review, and comment procedures may vary 
depending on the nature and scale of restoration actions proposed. For 
instance, notice may be accomplished through the Federal Register, 
local newspapers, state press releases, etc., and review and comment 
may be facilitated through written responses, advisory committees, 
public meetings, etc.
F. Final Restoration Plan
    After reviewing public comments on the Draft Restoration Plan, 
trustees must develop a Final Restoration Plan. As part of the Final 
Restoration Plan, trustees must consider and respond to all comments on 
the Draft Restoration Plan. In response to the comments, the trustees 
may need to: (1) Modify the restoration alternatives being considered; 
(2) develop and evaluate alternatives that have not been given serious 
consideration by the trustees; (3) supplement, improve, or modify the 
analyses; (4) make factual corrections; or (5) explain why the comments 
do not warrant further trustee response, citing the reasons to support 
the trustee position, and possibly indicate the circumstances that 
would trigger reappraisal or further response. In the Final Restoration 
Plan, trustees indicate the restoration alternatives that will be 
implemented and include the information in the Draft Restoration Plan. 
The format of the Final Restoration Plan, which essentially follows 
that of the Draft Restoration Plan, must clearly indicate any changes 
to the Draft Restoration Plan.
    If trustees plan to make significant changes to the Draft 
Restoration Plan in response to comments, revisions will be documented 
for public notice along with issuance of the Final Restoration Plan.
G. Use of Regional Restoration Plans
    If trustees used a simplified assessment procedure, the proposed 
rule allows them to consider using a Regional Restoration Plan instead 
of developing an incident-specific restoration plan. Under the proposed 
rule, trustees may use an existing Regional Restoration Plan provided 
that the Plan:
    (i) Was developed subject to public review and comment; and
    (ii) Addresses and is currently relevant to the same or comparable 
natural resources and/or services as those identified during injury 
assessment as having been injured.
    If these conditions are met, trustees may present the responsible 
parties with a demand for the damages calculated by the simplified 
assessment procedure and use the recovered sums to implement the 
Regional Restoration Plan.
    If there is not an existing Regional Restoration Plan that meets 
these conditions and the information provided by the simplified 
assessment procedure does not support development of an incident-
specific restoration plan, trustees may present the responsible parties 
with a demand for the damages calculated by the simplified assessment 
procedure and place the recovered funds into an account with other 
similar recoveries, until such time that sufficient funds to develop 
plan and implement a new Regional Restoration Plan are collected. 
Recoveries may only be commingled in this manner where natural resource 
and/or service injuries were similar for the incidents represented by 
pooled funds, and where the incidents were within the same region (i.e. 
ecosystem or watershed). New Regional Restoration Plans would then be 
developed subject to public review and comment.
    Trustees should develop criteria and procedures governing pooling 
of funds and obligating portions of damages from simplified procedures 
to planning costs. Such criteria should address: (1) The length of time 
money should be maintained in an account before developing and 
implementing Regional Restoration Plans; and (2) suggested maximum 
percentages of recoveries that may be used for developing Regional 
Restoration Plans.
    NOAA requests comments on the concepts and specific guidelines for 
pooling recoveries from simplified assessments and use of those monies.
    If trustees use a Regional Restoration Plan, they must prepare a 
Notice of Intent to Use a Regional Restoration Plan. The Notice must 
include:
    (1) A description of the nature, degree, and spatial/temporal 
extent of injuries to natural resources and/or services resulting from 
the incident;
    (2) A description of the existing Regional Restoration Plan and an 
explanation of how the conditions for use of a Regional Restoration 
Plan are met; or a description of the anticipated process for 
developing a new Regional Restoration Plan and an explanation of why 
the information provided by the simplified assessment procedure does 
not support development of an incident-specific restoration plan; and
    (3) Identification of the damage amount sought and the calculation 
of that amount.
    Trustees must make a copy of the Notice publicly available.

Subpart F--Restoration Implementation Phase

I. Introduction

    At the completion of the Restoration Planning Phase, the trustees 
must: (a) Close the administrative record that 

[[Page 39819]]
incorporates the Restoration Planning Phase and open a new 
administrative record for the Restoration Implementation Phase; (b) 
present a demand for restoration costs or implementation to the 
responsible parties; (c) establish an account to receive any payments 
of sums to be received from the responsible parties; and (d) implement 
restoration. Additional actions that could occur during the Restoration 
Implementation Phase include litigating a claim for damages where the 
responsible parties refuse to pay for or implement restoration on 
receipt of the trustees' demand, or presenting a claim for damages to 
the Oil Spill Liability Trust Fund, so that restoration can be 
implemented.

II. Administrative Record

    Once a Final Restoration Plan or Notice of Intent to Use a Regional 
Restoration Plan has been issued, the administrative record of the 
Restoration Planning Phase must be closed. Except as noted below, no 
additional documents will be placed in the record. The closed record 
will constitute the body of information supporting the trustees' 
decisions through restoration planning.
    Once the record is closed, trustees may only add documents that:
    (a) Are offered by an interested party that did not receive actual 
or constructive notice of the Draft Restoration Plan and the 
opportunity to comment on the Plan;
    (b) Do not duplicate information already contained in the 
administrative record; and
    (c) Raise significant issues regarding the Final Restoration Plan.
    For practical reasons, it is likely that trustees will need to open 
and maintain an additional administrative record to document 
implementation of restoration. This record should document all 
Restoration Implementation Phase decisions, actions, and expenditures, 
including any modifications made to the Final Restoration Plan. This 
record is necessary to keep the public informed and potentially for use 
in any enforcement actions, such as seeking additional work from the 
responsible parties to comply with the restoration plan and 
implementing agreements.
    The administrative record for restoration implementation should 
follow the same guidance for opening and maintaining the previous 
record, and for its availability.

III. Presenting a Demand for Damages to the Responsible Parties

    If the trustees and responsible parties have successfully 
implemented a cooperative restoration planning process, the responsible 
parties will have thorough knowledge of the trustees' preferred 
restoration actions and associated costs. In the best circumstances, 
the responsible parties will already have entered into an enforceable 
agreement to either pay the costs associated with implementing the 
Final Restoration Plan, or to implement the Plan according to trustee 
performance criteria and with trustee oversight. Any such agreements 
with the responsible parties will have been described in the Draft and 
Final Restoration Plans reviewed by the public.
    However, where a cooperative relationship with responsible parties 
has not been achieved, the trustees must follow some specific statutory 
requirements to recover natural resource damages, as described below.
    After development of a Final Restoration Plan or a Notice of Intent 
to Use a Regional Restoration Plan, the trustees must present a demand 
in writing asking the responsible parties either to:
    (a) Implement the Final Restoration Plan or portion of a Regional 
Restoration Plan subject to trustee oversight and reimburse the 
trustees for their assessment and oversight costs; or
    (b) Advance to the trustees a specified sum representing all direct 
and indirect costs associated with developing and implementing the 
Final Restoration Plan or some portion of a Regional Restoration Plan.
    The demand must also include: (a) Identification of the incident 
from which the claim arises; (b) identification of the trustees 
asserting the claim; (c) a brief description of the injuries for which 
the claim is being brought; (d) the index to the record; (e) the Final 
Restoration Plan or Notice of Intent to Use a Regional Restoration 
Plan; and (f) a request for reimbursement of:
    (i) Reasonable assessment costs;
    (ii) The cost, if any, of conducting emergency restoration; and
    (iii) Interest on the amounts recoverable under OPA section 1005, 
which provides for prejudgment and post-judgment interest to be paid at 
a commercial paper rate, starting from 30 calendar days from the date a 
demand is presented until the date the claim is paid.

IV. Discounting and Compounding the Components of the Claim

A. General
    Discounting and compounding are necessary for the trustees to be 
able to present a claim for a ``sum certain.'' The reference date for 
the discounting and compounding calculations is the date at which the 
demand is presented. Trustees must discount, or compound, the two 
components of the claim: (1) Future restoration costs; and (2) damage 
assessment and emergency restoration costs already incurred.
    NOAA recommends that trustees use the U.S. Treasury borrowing rate 
on marketable securities of comparable maturity to the period of 
analysis for both calculations, with some qualifications noted below. 
Alternatively, for state or Indian tribal claims for past damage 
assessment and restoration costs, the state or Indian tribe may use the 
state or Indian tribal borrowing rate on marketable securities. The 
analysis should be conducted either in terms of nominal values 
(denominated in dollars of the year in which the losses or gains are 
incurred) or in constant dollars of a specified base year. For 
compounding forward past emergency restoration and assessment costs, it 
seems more straightforward to employ the nominal Treasury rate as the 
discount rate and to represent the costs in nominal terms, since the 
nominal interest is observed and past costs are likely to be 
denominated in nominal terms. Future restoration costs can be adjusted 
for inflation using an appropriate inflation index for the major 
categories of costs.
B. Estimated Future Restoration Costs
    Most restoration projects will be carried out over a period of 
years. If funds are insufficient to cover the full costs of 
restoration, including post-construction maintenance and monitoring 
operations, natural resource recovery will be incomplete, and the 
public will be deprived of full compensation for the injuries. NOAA 
recommends that trustees use the nominal U.S. Treasury rate for 
marketable securities of comparable maturity to the period of analysis, 
when this rate of return is available to the trustees for investment of 
settlement monies. To denominate the future restoration costs in 
nominal terms, the trustees should employ the indices of projected 
inflation appropriate to the major components of the restoration costs 
(e.g., construction price indices for construction costs; the federal 
employee wage index for trustee monitoring costs).

[[Page 39820]]

    If legal and/or institutional constraints prevent investment of 
settlement monies yielding the U.S. Treasury rate for marketable 
securities of comparable maturity to the period of analysis, then it is 
incumbent upon the trustees to structure the claim to ensure that 
sufficient funds will be available to fund the entire set of 
restoration activities. One option is to calculate the discounted value 
of this component of the claim using an alternative discount rate that 
represents the yield on settlement monies available to the trustees. An 
alternative option is to structure a multi-year schedule for claim 
payments to ensure it provides the cash flow for each year required for 
planned expenditures.
    If the settlement is structured so that the responsible party 
carries out the restoration projects, the trustee restoration costs to 
be discounted will be substantially reduced, but not eliminated because 
trustee monitoring costs will still be included in the claim.
C. Past Assessment and Emergency Restoration Costs
    Damage assessment and emergency restoration costs may have been 
accruing from the time of the incident. To calculate the present value 
of these costs at the time the demand is presented to the responsible 
parties, the trustees will compound forward the costs already incurred. 
Because the rate of interest employed as the discount rate for past 
costs incurred should reflect the opportunity cost of the money spent, 
NOAA suggests that the trustees use the actual U.S. Treasury rate for 
marketable securities of comparable maturity to the period of analysis 
for compounding this component of the claim. NOAA acknowledges that, at 
the discretion of the trustees, a state or Indian tribal borrowing rate 
may be used to compound the state or Indian tribal component of past 
costs. Where the costs are denominated in dollars of the year in which 
they were incurred (i.e., in nominal terms), the nominal interest rate 
should be employed.
D. Sources of Data
    U.S. Treasury bill and bond rates may be found in the Federal 
Reserve Bulletin, issued monthly, or the Treasury Bulletin, issued 
quarterly. The Gross Domestic Product fixed-weighted price index and 
the Consumer Price Index may be found in the Survey of Current 
Business, issued monthly, and the Economic Report of the President, 
issued annually. The Administration prediction for future Gross 
Domestic Product deflators is updated twice annually at the time the 
budget is published in January or February and at the time of the Mid-
Session Review of the Budget in July. The current Treasury rates and 
inflation adjustment assumptions are reported in regular updates of 
Appendix C of Circular No. A-94, available from the OMB Publications 
Office (202-395-7332).

V. Uncompensated Claims

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

VI. Accounts

    OPA section 1006(f) requires that damages recovered by trustees be 
retained, without further appropriation, in a revolving trust account. 
Sums recovered for past assessment costs and emergency restoration 
costs may be used to reimburse the trustees. All other sums must be 
used to implement the Final Restoration Plan, implement an existing 
Regional Restoration Plan, or develop and implement a new Regional 
Restoration Plan.
    Where multiple trustees are involved in a recovery, trustees may 
wish to establish a joint account. One acceptable mechanism would be an 
account under the registry of the applicable federal court when there 
is a joint recovery involving federal and non-federal trustees. The 
joint account should be managed by the trustees through an enforceable 
written agreement that specifies the parties authorized to endorse 
expenditures out of the account, and the agreed-upon procedures and 
criteria for such expenditures.
    Although a joint trustee account may be the preferred approach, 
trustees also have the option of dividing the recoveries and depositing 
their respective amounts in their own separate accounts. These accounts 
should be interest-bearing, revolving trust accounts. These accounts 
may be incident-specific or funds that allow deposit of natural 
resource damages and expenditure in accordance with the limitations set 
forth in OPA.
    Trustees may establish escrow accounts or any other investment 
accounts unless specifically prohibited by law. Funds in such accounts 
must only be used as specified in OPA section 1006(f).
    Trustees must maintain appropriate accounting and reporting methods 
to keep track of the use of sums recovered. Brief reports on the status 
of the sums recovered and expenditures for particular incidents should 
be reported in the record for the Restoration Implementation Phase.
    Any sums remaining in an account established under this section 
that are not used either to reimburse trustees for past assessment and 
emergency restoration costs or to implement restoration must be 
deposited in the Oil Spill Liability Trust Fund.

VII. Implementation of the Restoration Plan

A. General
    As discussed throughout this proposed rule, the Final Restoration 
Plan may be implemented by the trustees, or by the responsible parties 
with trustee oversight. In either case, several common steps will 
characterize the Restoration Implementation Phase, including: (1) 
establishment of a trustee committee and/or MOU; (2) development of 
more detailed workplans for the conduct of restoration actions; (3) 
monitoring and oversight; and (4) evaluation of restoration success or 
need for corrective actions.
B. Trustee Committee and/or MOU
    In many instances, it is likely that a trustee committee and/or MOU 
will have governed trustee involvement through the Restoration Planning 
Phase. However, it is critical that these agreements extend through the 
Restoration Implementation Phase, or that new agreements or committees 
are formed for the restoration implementation. At a minimum, 
representatives of each participating trustee agency should be 
appointed to an oversight committee. Functions of such a committee may 
include: (1) Authorizing expenditures from a joint account; (2) 
participating in monitoring of restoration actions; (3) evaluating 
performance criteria for restoration actions; and (4) making the 
determination that the goals and objectives of the Final Restoration 
Plan have been achieved or that corrective actions need to be pursued. 

[[Page 39821]]

C. Detailed Workplans
    Depending on the incident, detailed workplans for accomplishing 
restoration goals and objectives may or may not have been developed 
during the Restoration Planning Phase. Clearly, as many details to 
outline the restoration expectations, performance criteria, timelines, 
criteria for success, etc., should be included in the Final Restoration 
Plan and in agreements with the responsible parties as are practicable 
to determine prior to restoration implementation. Performance criteria 
are essential for meaningful trustee monitoring and oversight of 
restoration projects.
D. Monitoring and Oversight
    Reasonable monitoring costs are included in recoverable damages. A 
well-designed and executed monitoring plan is required to assess 
progress toward the stated goals and objectives of a restoration plan. 
Reasonable monitoring costs cover those activities necessary to gauge 
the progress, performance, and success of the restoration actions, and 
not to generate purely scientific information.
E. Restoration Success and Corrective Actions
    Restoration plans, particularly those including agreements for 
responsible parties to implement restoration, must identify criteria 
against which success and completion of restoration actions will be 
judged. Thus, trustees should, at a minimum, determine: (a) What 
criteria will constitute success, such that responsible parties are 
relieved of responsibility for further restoration actions; and (b) 
what criteria will necessitate corrective actions in order to comply 
with the terms of a restoration or settlement agreement. For example, 
in the intertidal marsh creation example used above, success may be 
defined as survival of planted marsh grass at a rate of 80% vegetative 
cover two years after completion of planting.
    In some cases, pilot studies will lessen the need for corrective 
measures. In other cases, settlement agreements can include reopeners 
to deal with specific points of uncertainty, for instance, for 
significant injuries that could not be determined and/or quantified at 
the time of a settlement. Another possibility is for the responsible 
parties to deposit an agreed-upon amount of money in an escrow account 
to cover future corrective actions that could not be fully anticipated 
at the time of the settlement. These funds would then be used for 
future actions once defined, or revert to the responsible parties if 
not needed. In most cases, trustees should consider including a 
mechanism to deliberate the need for and type of corrective actions in 
a settlement agreement where the types of contingencies that suggest 
the need for corrective actions cannot be completely foreseen.
    In all cases, the scope and scale of corrective actions must be 
determined relative to the restoration goals and objectives set out in 
the Final Restoration Plan. In addition, trustees must recognize that 
circumstances well beyond the control of any of the parties may not be 
the basis of requiring corrective actions, such as natural occurrences 
that would meet an ``Act of God'' standard.

General Summary of and Response to Comments on the January 1994 
Proposed Rule

    NOAA received numerous comments on the January 1994 proposed rule. 
NOAA appreciates the time and effort expended by the commenters. 
Commenters raised many thought-provoking points that have led NOAA to 
reconsider the overall approach of the rule. The bulk of the comments 
fell into eight general categories.
    First, NOAA received many comments about the need to keep natural 
resource damage assessments focused on the ultimate goal of expeditious 
restoration rather than the abstract study of injuries, calculation of 
monetary damage figures, or time-consuming and expensive litigation. 
Today's proposed rule is designed to place even greater emphasis on 
early restoration planning.
    Second, many commenters addressed the standards for calculating 
compensable value in the January 1994 proposed rule. Today's proposed 
rule eliminates the need for the determination of compensable values as 
a separate component of a damage claim. The proposed rule does not 
render the value of natural resources irrelevant; however, it does 
fundamentally change the role of valuation in assessments. Valuation is 
now used to determine the scale of appropriate restoration actions 
rather than a monetary damage figure.
    Third, commenters raised concerns about coordination among trustees 
and with responsible parties and the level of trustee discretion 
afforded under the proposed January 1994 rule. Today's proposed rule 
provides for a public planning process designed to ensure that all 
interested parties have an opportunity for involvement and that the 
trustees' decisionmaking process is subject to public scrutiny. The 
proposed rule also redefines ``reasonable assessment costs'' to provide 
greater clarification of when trustees' assessment activities are 
appropriate.
    Fourth, NOAA received voluminous comments on the various assessment 
procedures. In regard to the compensation formulas, as discussed in 
Appendix C to this preamble, NOAA has decided to reserve the 
compensation formulas for now. Some commenters expressed confusion over 
the distinction between expedited and comprehensive damage assessments. 
The proposed rule no longer categorizes assessments as expedited or 
comprehensive and instead authorizes trustees to determine appropriate 
assessment methods on an incident-specific basis from a range of 
procedures including simplified methods to complex field studies.
    Fifth, other commenters raised concerns about use of Regional 
Restoration Plans. The proposed rule provides additional guidance on 
when and how Regional Restoration Plans may be used.
    Sixth, NOAA received many comments on the standards for determining 
injury. Under today's proposed rule, the definition of ``injury'' has 
been modified to require demonstration of a measurable or observable 
adverse change. The proposed rule also provides new guidance on 
determining injury, including guidance on selecting injury studies that 
provide information that is relevant for restoration planning.
    Seventh, NOAA received mixed comments on the provisions in the 
January 1994 proposed rule concerning administrative record review. 
This proposed rule continues to require development of an open 
administrative record containing documents relied upon by trustees in 
assessing and selecting restoration actions appropriate for particular 
incidents, including relevant comments and submissions received from 
responsible parties and other interested persons. Although this 
proposed rule is silent on the standard of review, NOAA continues to 
expect that courts will perform review on the administrative record.
    Finally, many commenters expressed concern about the volume of 
guidance on preassessment activities contained in the January 1994 
proposed rule. Today's proposed rule includes a streamlined 
Preassessment Phase.
    Due to the extent of the changes in today's proposed rule, many of 
which render earlier comments inapplicable, NOAA is not providing a 
detailed treatment of all comments received. Instead, the proposed rule 
and preamble embody the response to the comments 

[[Page 39822]]
received. After reviewing today's proposed rule, commenters should 
resubmit any comments that they think are still applicable, as well as 
provide any new comments.

Bibliography

EIS-Compatible Restoration Plans

    Entrix, Inc., Pacific Estuarine Research Laboratory (PERL), and 
Philip Williams and Associates, Ltd. (PWA). 1991. Tijuana Estuary 
Tidal Restoration Program. Draft Environmental Impact Report/
Environmental Impact Statement.
    California Coastal Conservancy (SCC) and U.S. Fish and Wildlife 
Service, Lead Agencies. SCC, Oakland. Vol I-III]; The Klamath River 
Basin Fisheries Task Force (1991) [The Klamath River Basin Fisheries 
Task Force. 1991. Long Range Plan for the Klamath River Basin 
Conservation Area Fishery Restoration Program. U.S. Fish and 
Wildlife Service, Klamath River Fishery Resource Office, Yureka, 
CA].
    Exxon Valdez Oil Spill Trustee Council (1994 a&b) [Exxon Valdez 
Oil Spill Trustee Council. 1994 (a) (June). Draft Environmental 
Impact Statement for the Exxon Valdez Oil Spill Restoration Plan. 
Exxon Valdez Oil Spill Trustee Council, Anchorage, AK Exxon Valdez 
Oil Spill Trustee Council. 1994 (b) (September). Final Environmental 
Impact Statement for the Exxon Valdez Oil Spill Restoration Plan.
    Exxon Valdez Oil Spill Trustee Council, Anchorage, AK]; Final 
Environmental Impact Statement for the Management Plan of Habitat 
for Late-Successional and Old-Growth Forest Related Species Within 
the Range of the Northern Spotted Owl (1994).

Regional Restoration Plans

    The National Estuary Program (NEP), established by Congress in 
1987, has developed Comprehensive Conservation and Management Plans 
(CCMP) to protect and restore ``nationally significant'' estuaries 
(U.S. EPA. 1992. The National Estuary Program after Four Years, A 
Report to Congress. U.S. Environmental Protection Agency, Office of 
Water. EPA 503/9-92/007).
    The State of Florida enacted the Surface Water Improvement and 
Management (SWIM) Act to develop plans that will address restoration 
of significant watersheds within its borders (SWIM Plan. 1993. Lower 
St. Johns River Basin. St. Johns River Water Management District, 
Palatka, FL; SWIM Plan. 1993. Lake Apopka. St. Johns River Water 
Management District, Palatka, FL; SWIM Plan. 1991. SWIM Plan for the 
Upper Oklawaha River Basin. St. Johns River Water Management 
District, Palatka, FL; Adamus, C. 1991. SWIM Priority Ranking. St. 
Johns River Water Management District, Palatka, FL). Numerous other 
federal, state, tribal, and community restoration and conservation 
programs and plans exist as well.
    Gosselink and Lee (1987) and Omernik (1987) outline some 
geographically-based approaches for regional restoration plans 
(Gosselink, J.G. and L.E. Lee. 1989. Cumulative Impact Assessment in 
Bottomland Hardwood Forests. Wetlands 9: 83-174.
    Omernik, J.M. 1987. Ecoregions of the Coterminous United States. 
Ann. Assoc. Am. Geogr. 77:118-125)

Guidance Documents

    DOI. 1987. Measuring Damages to Coastal and Marine Natural 
Resources: Concepts and Data Relevant to CERCLA Type A Damage 
Assessments (NRDAM/CME technical document). U.S. Department of the 
Interior, Office of Environmental Policy and Compliance, Washington, 
D.C., DOI-14-01-0001-85-C-20, Vol I-II.
    DOI. 1993. The CERCLA Type A Natural Resource Damage Assessment 
Model for the Great Lakes Environments (NRDAM/GLE). U.S. Department 
of the Interior, Office of Environmental Policy and Compliance, 
Washington, D.C., Vol I-III.
    DOI. 1994. The CERCLA Type A Natural Resource Damage Assessment 
Model for Coastal and Marine Environments (NRDAM/CME). U.S. 
Department of the Interior, Office of Environmental Policy and 
Compliance, Washington, D.C., Vol I-VI.
    Michel, J. and E. Reinharz. 1994. Preassessment Phase Guidance 
Document. National Oceanic and Atmospheric Administration, Office of 
General Counsel Natural Resources, Damage Assessment Regulations 
Team, Silver Spring, MD.
    NOAA. 1993. Restoration Guidance Document for Natural Resource 
Injury Resulting from a Discharge of Oil. National Oceanic and 
Atmospheric Administration, Office of General Counsel Natural 
Resources, Damage Assessment Regulations Team, Silver Spring, MD.
    NOAA. 1995. Specifications for Use of the NRDAM/CME Version 2.2 
to Generate: Compensation Formula for Natural Resource Damage 
Assessments under OPA. National Oceanic and Atmospheric 
Administration, Office of General Counsel Natural Resources, Damage 
Assessment Regulations Team, Silver Spring, MD.
    NOAA. 1995. Injury Guidance Document for Natural Resources and 
Services under the Oil Pollution Act of 1990. National Oceanic and 
Atmospheric Administration, Damage Assessment and Restoration 
Program, Silver Spring, MD.
    NOAA. 1995. NEPA Compliance in NRDA Guidance Document. National 
Oceanic and Atmospheric Administration, Damage Assessment and 
Restoration Program, Silver Spring, MD.

                         Appendix A--Comparison of Relevant OPA/NRDA and NEPA Components                        
----------------------------------------------------------------------------------------------------------------
                          OPA/NRDA process                                          NEPA parallels              
----------------------------------------------------------------------------------------------------------------
                      Facilitating Restoration                                                                  
                                                                             Facilitating the NEPA Process      
 Pre-incident planning                                                                                  
 Regional restoration planning                                 Programmatic EIS.                
 Cooperation and coordination                                  Interagency cooperation.         
 Public participation                                                                                   
                                                                       Public involvement.              
                         Preassessment Phase                                   Environmental Assessment         
                                                                                                                
 Procedural Components                                         Procedural Components.           
    --Determine trustee jurisdiction                                                                            
    --Determine need for restoration planning                           --Need/purpose for restoration.         
    --Publish ``Notice of Intent to Conduct Restoration Planning''      --``Notice of Intent'' for NEPA scoping.
    --Open administrative record                                        --Open Analysis File/Planning Record.   
 Limited data collection                                                                                
 Emergency restoration actions                                  --Emergency actions.                    
                                                                                                                
                     Restoration Planning Phase                                      NEPA Process               
                                                                                                                
 Procedural Components                                         Procedural Parallels.            
    --Injury Assessment Component (Injury Determination/                --NEPA scoping process begins.          
     Quantification)                                                                                            
    --Restoration Planning Component                                                                            
    --Develop Draft Restoration Plan                                    --Draft EIS.                            
    --Public Review/Comment                                             --Public Review/Comment.                
    --Develop Final Restoration Plan                                    --Final EIS.                            
 Range of injury assessment procedures (simplified to more     --Affected Environment (before           
 detailed)                                                             restoration).                            
 Range of restoration alternatives (primary/compensatory        --Range of restoration alternatives     
 restoration; natural recovery/no action)                              (including proposed/no action) and       
                                                                       Environmental Consequences.              
 Evaluation of restoration alternatives                                                                 
                                                                        --Cost-benefit analysis.                

[[Page 39823]]
                                                                                                                
                  Restoration Implementation Phase                                   NEPA Process               
                                                                                                                
 Procedural Components                                         Procedural Parallels.            
 Close Administrative Record for Restoration Planning Phase     --Close original Analysis File/Planning 
                                                                       Record.                                  
 Opening administrative record for Restoration                  --Open second Analysis File.            
 Implementation Phase                                                                                           
 Present Demand                                                 --``Record of Decision''.               
 Establish account for recoveries                                                                       
 Implement Final Restoration Plan (includes monitoring/         --Implement Final EIS.                  
 corrective actions)                                                                                            
----------------------------------------------------------------------------------------------------------------
EIS = Environmental Impact Statement.                                                                           


Appendix B--Considerations to Facilitate the Restoration Process

I. Pre-incident Planning

General

    NOAA believes that commitment of time, funding, and personnel to 
up-front planning prior to an incident will help ensure that the 
NRDA process results in appropriate restoration plans. Thus, 
trustees are encouraged to develop pre-incident plans.

Pre-incident Plan Contents

    NOAA suggests that pre-incident plans:
    (a) Identify natural resource assessment teams. The restoration 
process needs a systematic, interdisciplinary approach to insure the 
integrated use of science, economics, and law required in planning 
and implementing restoration. Trustees are encouraged to identify 
appropriately experienced personnel needed for natural resource 
assessment teams at the area and regional levels.
    Personnel required for natural resource assessment teams should 
be appropriate to the scope and scale of the incident and natural 
resources and/or services affected. For instance, for incidents with 
complicated or long-term ecological impacts, the core team could 
include a natural resource trustee coordinator, restoration expert, 
resource biologist, environmental (petroleum) chemist, resource 
economist, quality assurance specialist, data manager/sample 
custodian, statistician, resource attorney, and administrative 
support specialist. If at all possible, the team should not be ad 
hoc; members should be knowledgeable about relevant statutes and 
regulations, and be able to establish a working relationship with 
the various parties likely to be involved in incidents.
    (b) Establish trustee notification systems. Prompt notification 
is essential for efficient and effective initiation of the 
restoration process. Response personnel are required under the NCP 
to notify trustees whenever natural resources under their 
jurisdiction or management have been, or are likely to be, injured 
or lost as a result of an incident involving oil.
    Thus, each trustee should establish emergency notification 
protocols so that the process can be initiated on a 24-hour basis. 
Notification could be coordinated to minimize the number of calls 
response personnel must make to the trustees. Notification protocols 
are also needed within the trustee agencies so that appropriate 
regional and local personnel can be informed of an incident. Area 
and Regional Contingency Plans should include contact information 
for each trustee and clear, unambiguous criteria for trustee 
notification (e.g., all spills, spills over a certain size, 
location, etc.).
    (c) Identify likely support services. In many circumstances, the 
trustees may require specialized contractor support. For example, 
research vessels may be necessary for sample collection, or outside 
experts may be necessary to design and conduct studies. If, as part 
of pre-incident planning, the trustees can identify appropriate 
support services and pursue contracting procedures that will 
expedite incident-specific hiring of contractors, potentially 
detrimental delays in the assessment process can be avoided during 
actual incidents.
    The types of support and expertise expected, as well as 
potential contractor and expert names, should be identified as part 
of pre-incident planning. Contracts should be established to allow 
rapid acquisition of contractor services. Identified contractors may 
even be called on to participate in pre-incident planning so that 
all parties are familiar with the specific needs of the restoration 
process.
    Backup services should also be identified since the needs of 
both response and natural resource activities can exceed even 
regional capabilities.
    (d) Identify natural resources and/or services at risk. In the 
NCP, regional and area planning committees are responsible for the 
identification of natural resources under their jurisdiction that 
are potentially vulnerable to oil spill incidents for given 
geographic areas. The plans may, for example, identify wetland 
habitats near oil terminals or bird rookeries near shipping routes. 
If there is an incident, the response teams will focus their efforts 
on protection of these natural resources and/or services considered 
most vulnerable.
    Trustees should actively participate in such planning committees 
to identify natural resources and/or services at risk. Further, 
trustees should identify and evaluate possible assessment procedures 
for these natural resources and/or services. In addition to 
participating actively in regional and area planning activities, 
trustees should develop a working relationship with response 
agencies and officials.
    (e) Identify available baseline and other relevant information. 
Trustees should identify and catalogue sources of baseline 
information as part of pre-incident planning, including seeking 
input on sources of information. Types of information that may be 
important include: (1) Petroleum hydrocarbon contamination in 
indicator organisms; (2) species census and inventory; (3) baseline 
data on species populations; (4) recreational use statistics; (5) 
values for selected natural resources and/or services; and (6) 
restoration measures applicable to injured natural resources and 
services. Familiarity with the types of baseline information and 
identification of data gaps and needs will allow the trustees to 
formulate better study designs and restoration approaches;
    (f) Establish data management systems. Data management and 
record keeping are critical throughout the restoration process. Data 
management systems may best be designed during pre-incident planning 
to minimize the possibility of losing critical information during an 
incident. For small incidents, this may be a relatively simple 
filing system, but for large incidents, a centralized computer-based 
system may be essential.
    Trustees may decide to develop consistent data management 
formats, such as field, laboratory and quality assurance forms, to 
facilitate data management. At a minimum, data management should 
address the: (1) Type and volume of data; (2) uses and users of the 
data; (3) availability of existing data management structures; (4) 
quality assurance needs; (5) reporting requirements; and (6) access 
to the data. Data management should also include provisions for 
distribution of updates for the trustees and others on a timely 
basis; and
    (g) Identify assessment funding issues and options. Funding of 
trustee activities should be addressed during pre-incident planning 
because of the need to initiate actions expeditiously after an 
incident. Trustees may have several sources of potential funding, 
the: (1) Responsible parties; (b) Oil Spill Liability Trust Fund; 
and (c) agency funding. Trustees should consult the most up-to-date 
guidance available from the U.S. Coast Guard for access to the Fund 
and incorporate these procedures into pre-incident planning.

II. Regional Restoration Planning

General

    OPA emphasizes making the public whole for injuries to natural 
resource and/or services. Where practicable, incident-specific 
restoration is the preferred alternative to compensate the public 
for their losses. However, for many incidents, such incident-

[[Page 39824]]
specific planning may be impractical because, for instance, injuries 
are not extensive or are short-term. For small incidents, incident-
specific planning costs may be high compared to the estimated 
damages.
    Thus, to achieve OPA's mandate to restore injured natural 
resources and services regardless of the scope and scale of those 
injuries, trustees are strongly encouraged to use or modify existing 
restoration plans, or develop new regional restoration plans. Such 
regional planning is appropriate so long as natural resources and/or 
services comparable to those expected to be affected by an incident 
are addressed in the plans.

Availability of Regional Restoration Plans

    Trustees may rely on or adjust existing regional restoration 
plans, so long as they have followed or can be modified to meet the 
planning requirements under this proposed rule. Lacking existing 
regional plans, trustees should seek to develop such plans. The 
trustees may organize these plans based on such factors as geography 
(e.g., ecosystems or watersheds), injuries anticipated from 
incidents, or restoration alternatives.
    Regional restoration plans must be developed or annotated in 
such a way that trustees are able to justify linking the injuries 
from a particular incident or set of incidents with a specific 
restoration project or set of projects within the plan. This may be 
facilitated by describing the types of injuries anticipated from oil 
incidents to specific resources within a region, and describing 
these injuries in terms of the types and importance of functions and 
services, ecological and human use.

III. Coordination

General

    Trustee coordination is crucial to an efficient and effective 
assessment and restoration planning process because of the need to 
address shared trustee interests in natural resources and/or 
services affected by incidents. OPA prohibits double recovery of 
damages, which strongly suggests that, where multiple trustees are 
involved in an incident, they actively coordinate their activities 
from as early in the process as possible, as well as through pre-
incident planning activities.

Incentives for Coordination

    Incentives for cooperation include:
    (a) Access to funding--requests for reimbursement of the costs 
of initiating natural resource damage assessment from the Fund 
require that trustees attempt to coordinate their assessments and 
their funding requests;
    (b) Conflict resolution--lack of coordination among the trustees 
or with the responsible parties will likely produce an adversarial, 
litigation-charged atmosphere. A joint trustee-responsible party 
effort will help resolve legal, administrative and technical 
conflicts; and
    (c) Pooling limited resources--a joint trustee-responsible party 
effort will allow the pooling of financial and human resources for 
more efficient and effective restoration planning and 
implementation.
    Trustees will benefit greatly if coordination procedures can be 
established well before an incident occurs. It must be emphasized 
that all cooperative arrangements are subject to trustee oversight 
because of their fiduciary responsibility to the public.

Agreements
    Trustees should consider Memoranda of Understanding (MOU) to 
formalize their cotrustee relationships. The MOU or similar 
agreements may be prepared either in anticipation of an incident or 
shortly after an incident. It is important that trustee agreements 
address, at a minimum: the purpose of the agreement; trustee 
participants; trustee organization; trustee responsibilities; and a 
decisionmaking process.
    Trustee agreements may serve as the foundation for building pre-
incident plans for natural resource activities as discussed above. 
Of special importance is the selection of a Lead Administrative 
Trustee (LAT).

Lead Administrative Trustee (LAT)

    When conducting joint assessments under this rule, trustees must 
designate a Lead Administrative Trustee (LAT). The LAT serves as the 
contact for trustee interaction with response agencies, responsible 
parties and the public, and provides general administrative support 
to the restoration process.
    This proposed rule also does not require that a LAT be a federal 
agency. However, when more than one federal trustee(s) is involved, 
the federal trustees must select a federal LAT (FLAT) if the 
trustees wish to access the Fund to initiate natural resource 
activities. In such cases, the FLAT will coordinate federal efforts 
with the selected LAT. In addition, if a federal agency is 
participating in the NRDA, NEPA is applicable, and a federal trustee 
must serve as the lead agency for NEPA planning purposes. Where 
appropriate, the trustees may designate co-LATs, consisting of a 
federal LAT and the state, tribal, or foreign trustees.
    A LAT should be selected by mutual agreement of the trustees. In 
designating a LAT, trustees may want to consider such factors as: 
Jurisdictional oversight; capability and willingness to address 
trust resources; and sequence and duration of involvement in the 
incident or similar incidents. Selection of a LAT should be made as 
soon as practicable after notification of an incident.

Cotrustee Responsibilities

    Cotrustees should be prepared to participate fully in the 
restoration process by: Participating in or conducting those studies 
or analyses for which they have special expertise or management 
authority; make staff available to participate in other NRDA 
activities, in particular, to represent the trustee in decisions 
requiring cotrustee unanimity; and committing financial resources. 
Each trustee may limit this participation based on the extent of 
injury to its natural resources as well as legal and financial 
constraints.

Coordination With Response Agencies

    To the fullest extent practicable without interfering with 
response activities, natural resource concerns should be integrated 
with response activities before pursuing a NRDA; liability for 
natural resource damages is limited to damages for injuries or 
losses residual to the response phase, plus any injuries related to 
the response. NOAA strongly encourages trustees to coordinate 
natural resource injury assessment activities, such as gathering 
ephemeral data related to an oil spill incident, with response 
actions. Mechanisms to coordinate response and trustee data 
gathering needs and processes may also be addressed in pre-incident 
planning.

Coordination With the Responsible Parties

    Under OPA, trustees have the responsibility to determine 
appropriate actions to restore injured natural resources and 
services. However, NOAA strongly encourages trustees to include the 
responsible parties as full or partial participants in the 
restoration process, whenever it can be achieved without compromise 
of the trustees' statutory obligations to act on behalf of the 
public trust. In determining whether, when and how to invite the 
responsible parties to participate, trustees may consider factors 
including, but not be limited to, the: willingness of the 
responsible parties to participate; capability of the responsible 
parties to participate (e.g., knowledge, expertise, and personnel); 
and (c) willingness of the responsible parties to pay for the 
restoration process.

Enforceable Agreements

    Trustees are encouraged to enter into enforceable agreements 
with cooperative responsible parties. Enforceable agreements may 
have several benefits, including keeping trustees and responsible 
parties dealing openly with each other, and reducing transaction 
costs associated with separate assessment studies. Enforceable 
agreements may address any or all parts of the restoration process, 
but should contain, at a minimum, provisions for: the type and level 
of participation, joint or independent; deliverables; funding; 
public review; and termination.
    NOAA encourages the trustees and responsible parties to conduct 
joint assessment activities. For joint activities, enforceable 
agreements should stipulate that the trustees and responsible 
parties are: obligated to use jointly-collected data; barred from 
collecting new or different data that challenges jointly-collected 
data; obligated to document such jointly-collected data; barred from 
challenging the scientific or technical adequacy of methods agreed 
upon under the agreement; and encouraged to develop binding 
stipulations regarding the interpretation and use of joint study 
results.
    Negotiations with the responsible parties should not prevent the 
trustees from proceeding with their obligations to develop the 
restoration plan in a timely fashion.

Coordination Among the Responsible Parties

    While it is obviously not as easy to identify the mix of 
potential responsible parties that will participate in a given 
incident, there are issues that can be addressed in general terms by 
the potential responsible parties in advance, that will enable them 
to enter the cooperative restoration process more 

[[Page 39825]]
efficiently and effectively. In an incident with a single well-
identified responsible party, the ability to assess the situation, 
identify the appropriate course of action and most effectively 
implement a cooperative response will be improved by pre-incident 
planning. In an incident with multiple potential responsible 
parties, the need for pre-incident planning is more apparent. In 
this latter situation, the potential responsible parties need to 
consider the efficacy of a cooperative restoration process, and the 
terms under which they would consider entering into such a process.
Appendix C--Simplified Injury Assessment Procedures

I. Type A Models

    The Department of the Interior (DOI) is responsible for 
developing simplified ``Type A'' NRDA procedures under CERCLA. These 
procedures were originally intended to cover both hazardous 
substance releases as well as oil discharges. This proposed rule 
would allow trustees to use any final Type A procedure incorporated 
into DOI's regulations that addresses oil discharges, so long as the 
conditions of an incident under OPA are sufficiently similar to the 
conditions set forth at 43 CFR 11.33 for use of the Type A 
procedures.
    Only one final Type A procedure has been incorporated into DOI's 
regulations. That procedure is a computer model applicable to minor 
discharges in coastal and marine environments, known as the Natural 
Resource Damage Assessment Model for Coastal and Marine Environments 
(NRDAM/CME) Version 1.2.
    The NRDAM/CME Version 1.2 is composed of three submodels that 
predict the physical fate of the spilled substance, the biological 
effects, and the economic damages caused by the incident. The 
physical fates submodel database predicts the dispersion, 
concentration, and eventual fate of the discharged oil. The model 
accounts for mechanical removal of oil from the environment and the 
normal weathering, degradation, and evaporation process. The 
biological effects submodel uses the output from the physical fates 
submodel, user-supplied information on habitat type and fishing 
closures, and a regionally and seasonally specific database of 
marine and estuarine fish, invertebrates, and birds to predict 
biological injury. The economic damages submodel determines the 
monetary compensation necessary for the lost use of the injured 
resources. The economic database includes values for commercially 
and recreationally harvested species, beach use, and bird watching.
    DOI has issued a proposed rule to revise the NRDAM/CME Version 
1.2 to comply with the decision in Colorado v. U.S. Department of 
the Interior, 880 F.2d 481 (D.C. Cir. 1989) and as part of the 
statutorily-mandated review and update of DOI's NRDA regulations. 59 
FR 63300 (Dec. 8, 1994). The updated version of the model (Version 
2.2) includes significantly more detailed data and more 
sophisticated computer technology. The revised model also includes a 
fourth submodel focusing on restoration costs. Interior has also 
proposed a Type A procedure for minor discharges in the Great Lakes, 
known as the Natural Resource Damage Assessment Model for Great 
Lakes Environments (NRDAM/GLE) Version 1.31. 59 FR 40319 (August 8, 
1994). When final, trustees may use the revised NRDAM/CME and the 
NRDAM/GLE for assessments under OPA.

II. Compensation Formulas

    As part of the proposed regulations, NOAA proposed a 
compensation formula that could be used for small incidents in both 
the estuarine and marine environments and the Great Lakes (and other 
inland waters). The purpose of the formula is to readily estimate 
impacts based on the amount of oil discharged and several simple 
data inputs.
    To maintain consistency with existing procedures and facilitate 
public review of the estuarine and marine formula, the NRDAM/CME 
Version 1.2 was used to estimate damages in a representative range 
of hypothetical spill scenarios. Those results were the basis of the 
estuarine and marine compensation formula. The basic algorithms of 
the physical fates and biological submodels within the NRDAM/CME 
Version 1.2 were deemed appropriate for this approach. However, to 
use more recently-developed information, revised databases were 
substituted for both the current biological and economic databases 
in the NRDAM/CME Version 1.2. A restoration submodel was also added 
to allow the use of average restoration costs to the extent 
possible.
    The inland waters compensation formula was proposed before DOI 
published a proposed rule incorporating the NRDAM/GLE Version 1.31. 
Therefore, NOAA used an earlier draft of the NRDAM/GLE to develop 
the formula and provided that earlier version for public review with 
the January 1994 proposed rule.
    DOI is currently scheduled to issue the final revised NRDAM/CME 
and the final NRDAM/GLE in early 1996. One option NOAA has 
considered is to wait until those models are final and reissue the 
compensation formulas. However, to repeat the formula development 
after the models are final would require an additional three to five 
months, thereby delaying interested parties' use of the formulas 
until late 1996. Trustees need some simple method available for at 
least an order of magnitude estimate of impacts that, ``on 
average,'' are likely to result from relatively small discharges of 
oil. Thus, a guidance document has been developed to provide an 
interim tool for such a purpose.
    The compensation formula guidance document is intended to 
provide instructions on how, using the proposed NRDAM/CME Version 
2.2 to recreate the spill scenarios used to develop the 1994 
proposed estuarine/marine compensation formulas. This guidance will 
allow interested parties to recreate the scenarios with the proposed 
models, which are significantly different in some ways from the 
draft models used to develop the proposed formulas. This approach 
also will allow reviewers to comment on the possibility of NOAA 
recreating the formulas once the NRDAM/CME and the NRDAM/GLE are 
promulgated as final rules. This approach should allow an evaluation 
of how the compensation formulas might change from that proposed in 
January 1994 and provide approximate estimates of damages for 
hypothetical spills based on the formula if it is developed using 
the versions of the NRDAM/CME and NRDAM/GLE that are promulgated as 
final rules in the future.
    Using the data in the guidance document, trustees will have a 
simplified, cost-effective tool to use in estimating expected 
impacts of most discharges of oil. This information may prove to be 
useful in early decisionmaking in a NRDA or in settlement 
discussions. In order to use this guidance, trustees must have the 
proposed computer models developed by DOI. Computer diskettes 
containing the NRDAM/CME Version 2.2 and the NRDAM/GLE Version 1.31 
can be obtained from the Office of Environmental Policy and 
Compliance, Room 2340, Department of the Interior, 1849 C Street, 
NW, Washington, DC 20240, telephone: (202) 208-3301.
Appendix D--Compensatory Restoration Scaling Methods

    The following is a list of methods that are mentioned in this 
preamble as potential approaches to scaling compensatory restoration 
alternatives. The trustees are not limited to these methods and may 
use any method that are deemed to be appropriate to the particular 
situation.

A. Habitat Equivalency Analysis

    This method may be used to scale restoration projects that 
replace entire habitats that support multiple species or that 
replace individual species that provide a variety of resource 
services. To ensure that the scale of the compensatory restoration 
project does not over- or under-compensate the public for injuries 
incurred, the trustees must establish an equivalency between the 
present value of the quantity of lost services and the present value 
of the quantity of services provided by the compensatory restoration 
project(s) over time.

B. Travel Cost Method

    The travel cost method is principally employed to model demand 
for recreational experiences. This measurement technique evolved 
from the insight that the travel costs an individual incurs to visit 
a site are like a price for the site visit. In essence, the travel 
cost method assesses an individual's willingness to travel further 
(thereby incurring higher travel costs) in order to recreate at more 
highly valued sites. It is important to take into account the 
availability and quality of substitute recreation sites. Multiple-
site models of recreational demand, such as the random utility 
model, focus attention on the recreationist's choice among 
alternative recreational sites. This version of the travel cost 
model is particularly appropriate where many substitutes are 
available to the individual and when the discharge has affected 
quality at multiple sites. For this reason, multiple-site models of 
recreational demand are preferred to single-site models, unless it 
is feasible to include in the single-site model price and quality 
information 

[[Page 39826]]
about the relevant substitute sites (or there are no substitute sites). 
If a single-site model is employed without full accounting for 
substitutes, an appropriate adjustment should be made to the 
estimate of trip value.
    In cases where the change in resource services to be analyzed is 
out of the range of data on actual travel behavior, trustees may 
choose to collect contingent behavior data. Contingent behavior 
refers to the behavior of users or potential users of a resource 
service under hypothetical conditions presented to them in the 
travel cost survey.

C. Factor Income Approach

    This approach relies upon the production function model that 
relates the contribution of inputs to the production of an output. 
(Inputs are also referred to as factors of production.) Changes in 
the availability or price of inputs will affect the availability and 
price of the output and hence the level of income accruing to the 
producer. Where unpriced natural resources are an input in the 
production process, producer income will include both economic 
profit (the amount of profit a producer requires to keep capital in 
this use in the long run) and economic rent (the income accruing to 
a producer as a result of access to an unpriced resource). A 
discharge may decrease the quality and/or quantity of a resource and 
thereby effectively increase the cost of acquiring the natural 
resource input. As a result, the injury may reduce the economic rent 
accruing to the producer from use of the public trust resource. The 
change in economic rent attributable to a discharge can be evaluated 
by calculating the change in surplus either in the product market or 
in the input markets. Where the output price is not affected, the 
change in economic rent is simply the sum of the change in factor 
costs (or factor income) for each affected input.

D. Hedonic Price Model

    The hedonic price model relates the price of a marketed 
commodity to its various attributes. In the natural resource damage 
assessment context, it may be used to determine the change in value 
of some nonmarket services from public trust resources (for example, 
environmental amenities such as water or air quality) where they 
function as attributes of private market goods, such as property. 
For example, the value of beach front property may be directly 
related to the quality and accessibility of the adjacent coastline. 
Reduction in the quality or accessibility, as may occur due to a 
discharge, will be captured in the value of the property. All else 
equal, the decrease in property values as a result of a discharge 
measures the change in use value of the injured coastline resources 
accruing to local property owners. This measure of the reduction in 
value of coastline resources will not capture any loss in value of 
the resources that may accrue to members of the public who own no 
property in the area.

E. Market Models of Demand and Supply

    For those goods and services regularly traded in markets, 
economists typically rely upon market transactions to reveal the 
values that individuals place on the goods and services and the 
costs of producing them. When the quality of the resource directly 
affects the value individual consumers place on a good or service, 
the correct measure of damage is the change in consumer surplus, or 
individuals' willingness-to-accept compensation plus the economic 
rent component of producer surplus, if any, for the injuries 
associated with the discharge.

F. Contingent Valuation

    The contingent valuation (CV) method determines the value of 
goods and services based on the results of carefully designed 
surveys. The CV methodology obtains an estimate of the total value, 
including both direct and passive use values of a good or service by 
using a questionnaire designed to objectively collect information 
about the respondent's willingness to pay for the good or service. A 
CV survey contains three basic elements: (1) A description of the 
good/service to be valued and the context in which it will be 
provided, including the method of payment; (2) questions regarding 
the respondent's willingness to pay for the good or service; and (3) 
questions concerning demographics or other characteristics of the 
respondent to interpret and validate survey responses.

G. Conjoint Analysis

    A conjoint analysis is a survey technique that is used to derive 
the values of particular attributes of goods or services. 
Information is collected about individuals' choices between 
different goods that vary in terms of their attributes or service 
levels. With this information, it is possible to derive values for 
each particular attribute or service. If price is included as an 
attribute in the choice scenarios, values can be derived in terms of 
dollars which can be used with the valuation approach.
    Alternatively, it is possible to value attributes in terms of 
units of replacement services. Survey respondents would be presented 
with choices between two or more options that may represent resource 
projects with varying levels of services. The goal is to obtain the 
value of the injured services in terms of alternative resource 
services so that restoration projects can be scaled directly using 
the service-to-service approach.

H. Benefits Transfer Approach

    Benefits (or valuation) transfer involves the application of 
existing value estimates or valuation functions and data that were 
developed in one context to address a sufficiently similar resource 
valuation question in a different context.
    Where resource values have been developed through an 
administrative or legislative process and are relevant and reliable 
under the circumstances, the trustees may use these values, as 
appropriate, in a benefits transfer context. NOAA solicits comment 
on the type of administratively and legislatively established values 
that would be appropriate for this purpose. Other values may be used 
so long as three basic issues are considered in determining the 
appropriateness of their use: the comparability of the users and of 
the natural resource and/or service being valued in the initial 
studies and the transfer context; the comparability of the change in 
quality or quantity of resources and/or services in the initial 
study and in the transfer context (where relevant); and the quality 
of the studies being transferred.
National Environmental Policy Act, Executive Order 12866, Regulatory 
Flexibility Act, and Paperwork Reduction Act

    The National Oceanic and Atmospheric Administration has determined 
that this rule does not constitute a major federal action significantly 
affecting the quality of the human environment. Therefore, no further 
analysis pursuant to Section 102(2)(C) of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332(2)(C)) has been prepared. The 
Assistant General Counsel for Legislation and Regulation, in accordance 
with the Regulatory Flexibility Act, certifies to the Chief Counsel for 
Advocacy, Small Business Administration, that this proposed rule will 
not have a significant economic effect on a substantial number of small 
entities. The proposed rule is intended to make more specific, and 
easier to apply, the standards set out in OPA and CERCLA for assessing 
damages for injury to natural resources as a result of actual or 
threatened discharges of oil. The rule is not intended to change the 
balance of legal benefits and responsibilities among any parties or 
groups, large or small. To the extent any are affected by the rule, it 
is anticipated that all will benefit by increased ease of application 
of law in this area.
    It has been determined that this document is a significant rule 
under Executive Order 12866. The rule provides optional procedures for 
the assessment of damages to natural resources. It does not directly 
impose any additional cost.
    It has been determined that this rule does not contain information 
collection requirements that require approval by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq.

List of Subjects in 15 CFR part 990

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

[[Page 39827]]
resources, Water supply, Water transportation, Wetlands, Wildlife.

    Dated: July 28, 1995.
Douglas K. Hall,
Assistant Secretary for Oceans and Atmosphere.

    Under the authority of the Oil Pollution Act of 1990, 33 U.S.C. 
2706(a), and for the reasons set out in this preamble, title 15 of the 
Code of Federal Regulations, chapter IX is proposed to be amended to 
add a new Subchapter E-Oil Pollution Act Regulations and a new part 990 
as set forth below.

SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS

PART 990--NATURAL RESOURCE DAMAGE ASSESSMENTS

Subpart A--Introduction

Sec.
990.10  Purpose.
990.11  Scope.
990.12  Overview.
990.13  Effect of using this part.
990.14  Coordination
990.15  Considerations to facilitate restoration.
990.16  Review and revision of this part.

Subpart B--Authorities

990.20  Relationship to other natural resource damage assessment 
regulations.
990.21  Relationship to the NCP.
990.22  Prohibition on double recovery.
990.23  Compliance with other applicable laws and regulations.
990.24  Settlement.
990.25  Emergency restoration.

Subpart C--Definitions

990.30  Definitions.
Subpart D--Preassessment Phase

990.40  Purpose.
990.41  Determination of jurisdiction.
990.42  Determination to conduct restoration planning.
990.43  Notice of Intent to Conduct Restoration Planning.
990.44  Administrative record.
990.45  Data collection.

Subpart E--Restoration Planning Phase

990.50  Purpose.
990.51  Criteria for acceptable procedures.
990.52  Injury assessment--injury determination.
990.53  Injury assessment--quantification.
990.54  Injury assessment--selecting assessment procedures.
990.55  Restoration selection--development of a reasonable range of 
alternatives.
990.56  Restoration selection--evaluation of alternatives.
990.57  Restoration selection--preparation of a Draft and Final 
Restoration Plan.
990.58  Restoration selection--use of a Regional Restoration Plan.

Subpart F--Restoration Implementation Phase

990.60  Purpose.
990.61  Administrative record.
990.62  Presenting a demand.
990.63  Discounting and compounding.
990.64  Uncompensated claims.
990.65  Opening an account for recovered damages.
990.66  Additional considerations.

Subpart A--Introduction


Sec. 990.10  Purpose.

    The purpose of this part is to promote expeditious restoration of 
natural resources and services injured as a result of an incident 
involving the discharge or substantial threat of a discharge of oil. To 
fulfill this purpose, this part provides a natural resource damage 
assessment process for developing a plan for the restoration of the 
injured natural resources and services and pursuing implementation or 
funding of the plan by responsible parties. This part provides an 
administrative process for involving interested parties, a range of 
assessment procedures for identifying and evaluating injuries to 
natural resources and/or services, and a process for selecting 
appropriate restoration actions from a range of alternatives.


Sec. 990.11  Scope.

    The Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., 
provides for the designation of federal, state, Indian tribal, and 
foreign officials to act on behalf of the public as trustees for 
natural resources. This part is available for use by these officials in 
conducting natural resource damage assessments when natural resources 
and/or services are injured as a result of an incident involving an 
actual or substantial threat of a discharge of oil.


Sec. 990.12  Overview.

    This part describes three phases of a natural resource damage 
assessment. The Preassessment Phase, during which trustees determine 
whether to pursue restoration, is described in subpart D of this part. 
The Restoration Planning Phase, during which trustees evaluate 
information on potential injuries and use that information to determine 
the need for and type of restoration, is described in subpart E of this 
part. The Restoration Implementation Phase, during which trustees 
ensure implementation of restoration, is described in subpart F of this 
part.


Sec. 990.13  Effect of using this part.

    (a) Rebuttable presumption for claims. If federal, state, or Indian 
tribal trustees act in accordance with this part and file a judicial or 
administrative claim for natural resource damages, then the claim and 
all determinations made by the trustees during the development of the 
claim will be presumed correct unless the responsible parties present 
evidence adequate to rebut the presumption.
    (b) Use of other assessment procedures and methods. Trustees may 
use other natural resource damage assessment procedures and methods in 
lieu of or in addition to the process described in this part. However, 
any component of a natural resource damage claim based on use of 
another process will only be given a rebuttable presumption if such 
process is in accordance with this part.


Sec. 990.14  Coordination.
    (a) Other trustees. (1) If an incident affects the interests of 
multiple trustees, the trustees may act jointly under this part. 
Trustees must designate a lead administrative trustee to act as 
coordinator and contact point for joint assessments.
    (2) If there is a reasonable basis for dividing the natural 
resource damage assessment, trustees may act independently under this 
part, so long as there is no double recovery of damages for the same 
incident and natural resource.
    (3) Trustees may develop pre-incident or incident-specific 
memoranda of understanding to coordinate their activities.
    (b) Response agencies. Trustees must coordinate their activities 
with response agencies consistent with the NCP and any pre-incident 
plans developed under Sec. 990.15(a) of this part. Trustees may develop 
pre-incident memoranda of understanding to coordinate their activities 
with response agencies.
    (c) Responsible parties. Trustees must invite the responsible 
parties to participate in the NRDA process, including preassessment and 
emergency restoration activities, where appropriate and such 
participation will not interfere with trustees fulfilling their 
responsibilities under these regulations and OPA.
    (d) Public. Trustees may provide opportunities for public 
involvement in addition to those specified in subparts D through F of 
this part. Such opportunities may include solicitation of public 
comment at additional stages of the process, public meetings on trustee 
activities concerning specific incidents, and public outreach on non-
incident-specific restoration issues.

[[Page 39828]]



Sec. 990.15  Considerations to facilitate restoration.

    In addition to the procedures provided in subparts D through F of 
this part, trustees may take other actions to further the goal of 
expeditious restoration of injured natural resources and services, 
including:
    (a) Pre-incident planning. Trustees may engage in pre-incident 
planning activities. Pre-incident plans may: identify natural resource 
damage assessment teams; establish trustee notification systems; 
identify support services; identify natural resources and/or services 
at risk; identify regional and area response agencies and officials; 
identify available baseline information; establish data management 
systems; and identify assessment funding issues and options.
    (b) Regional Restoration Plans. Trustees may develop Regional 
Restoration Plans. These plans may be used to support a claim as 
provided in Sec. 990.58 of this part.


Sec. 990.16  Review and revision of this part.

    This part will be reviewed and revised as appropriate as often as 
necessary, but no less than once every five years.

Subpart B--Authorities


Sec. 990.20  Relationship to other natural resource damage assessment 
regulations.

    (a) CERCLA regulations--(1) General. The Department of the Interior 
has developed regulations for assessing natural resource damages 
resulting from hazardous substance releases and discharges of oil under 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, as amended, 42 U.S.C. 9601 et seq., and the Clean Water 
Act, 33 U.S.C. 1321 et seq. Those regulations are codified at 43 CFR 
part 11. Those regulations originally applied to natural resource 
damages resulting from oil discharges as well as hazardous substance 
releases. This part supersedes 43 CFR part 11 with regard to oil 
discharges under OPA.
    (2) Assessments commenced before the effective date of this part. 
If trustees commenced a natural resource damage assessment for an oil 
discharge under 43 CFR part 11 prior to the effective date of this 
part, they may complete the assessment in compliance with 43 CFR part 
11 and obtain a rebuttable presumption, or they may elect to use this 
part.
    (3) Oil and hazardous substance mixtures. If natural resources are 
injured by a discharge or release of a mixture of oil and hazardous 
substances, trustees must use 43 CFR part 11 in order to obtain a 
rebuttable presumption.
    (b) State, local, or tribal procedures. Trustees may use state, 
local, or tribal natural resource damage assessment procedures in lieu 
of this part and obtain a rebuttable presumption provided that the 
state, local, or tribal procedures are in accordance with this part. 
State, local, or tribal procedures are in accordance with this part 
when the procedures:
    (1) Require all recovered damages to be spent on restoration, 
subject to a plan made available for public review and comment, except 
for those damages recovered to reimburse trustees for past assessment 
and emergency restoration costs;
    (2) Determine compensation based on injury and/or restoration;
    (3) Are consistent with the standards for the technical methods 
described in Sec. 990.51 of this part;
    (4) Were developed through a public rulemaking process; and
    (5) Do not conflict with OPA or this part.


Sec. 990.21  Relationship to the NCP.

    This part supplements the procedures established under the National 
Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR 
part 300, for the response to an incident. This part provides 
procedures by which trustees may determine appropriate restoration of 
injured natural resources and services that are not fully addressed by 
response actions conducted pursuant to the NCP.


Sec. 990.22  Prohibition on double recovery.

    When taking actions under this part, trustees must consider the 
actions of other trustees with respect to the same incident and natural 
resources and the effect of the prohibition on double recovery of 
damages in 33 U.S.C 2706(d)(3).


Sec. 990.23  Compliance with other applicable laws and regulations.
    (a) NEPA. The National Environmental Policy Act (NEPA), 42 U.S.C. 
4321 et seq., applies to restoration planning by federal trustees, 
unless a categorical exclusion applies. NEPA is triggered when federal 
trustees issue a Notice of Intent to Conduct Restoration Planning under 
Sec. 990.43 of this part. Compliance with the procedures set forth in 
subparts E and F of this part fulfills the requirements of NEPA.
    (b) Worker health and safety. When taking action under this part, 
trustees must comply with all worker health and safety considerations 
specified in the NCP for response actions.
    (c) Resource protection. When acting under this part, trustees must 
ensure compliance with any applicable federal consultation or review 
requirements, including but not limited to: the Endangered Species Act 
of 1973, 16 U.S.C. 1531 et seq.; the Coastal Zone Management Act of 
1972, 16 U.S.C. 1451 et seq.; the Migratory Bird Treaty Act, 16 U.S.C. 
703; the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; the 
National Historic Preservation Act, 12 USC 470; and the Marine Mammal 
Protection Act, 16 U.S.C. 1361 et seq.
    (d) State, local, and tribal procedural requirements. To the extent 
that federal trustees can legally comply with state, local, and tribal 
procedural requirements they should do so.


Sec. 990.24  Settlement.

    Trustees may settle claims for natural resource damages at any 
time, provided that the settlement is adequate in the judgment of the 
trustees to make the environment and public whole for the injury, 
destruction, loss of, or loss of use of natural resources and/or 
services that have or are likely to have occurred; with particular 
consideration of the adequacy of the compensation to provide for the 
restoration of such resources. Sums recovered in settlement of such 
claims may only be expended in accordance with a restoration plan that 
is made available for public review.


Sec. 990.25  Emergency restoration.

    (a) Trustees may take emergency restoration action before 
completing the process established under this part, provided that:
    (1) The action is needed to minimize continuing injury or prevent 
additional injury to natural resources and/or services;
    (2) The action is feasible and likely to minimize continuing or 
prevent additional injury; and
    (3) The costs of the action are not unreasonable.
    (b) If response actions are still underway and emergency 
restoration actions have the potential to interfere with such response 
actions, trustees must coordinate with the On-Scene Coordinator (OSC) 
before taking any emergency restoration actions. Where emergency 
restoration actions are not expected to interfere with ongoing response 
actions, trustees must notify the OSC of the their intended actions 
prior to implementation and explain their reasons for believing that no 
interference with the response will result.

[[Page 39829]]

    (c) Trustees must provide notice to the responsible parties of any 
emergency restoration actions and invite their participation in the 
conduct of those actions within a reasonable timeframe.
    (d) Trustees must provide public notice of any emergency 
restoration actions within a reasonable timeframe after completion of 
such actions. The notice must include a description of the 
justification for, the nature and extent of, and the results of 
emergency restoration actions.

Subpart C--Definitions


Sec. 990.30  Definitions.

    Baseline means the condition of the natural resource and/or service 
that would have existed had the incident not occurred. Baseline data 
include historical data, reference data, control data, and data on 
incremental changes (e.g., number of dead animals).
    Cost-effective means the least costly activity among two or more 
activities that provide the same or comparable level of benefits.
    Discharge means any emission (other than natural seepage), 
intentional or unintentional, and includes, but is not limited to, 
spilling, leaking, pumping, pouring, emitting, emptying, or dumping.
    Exclusive Economic Zone means the zone established by Presidential 
Proclamation Numbered 5030, dated March 10, 1983, including the ocean 
waters of the areas referred to as ``eastern special areas'' in Article 
3(1) of the Agreement between the United States of America and the 
Union of Soviet Socialist Republics on the Maritime Boundary, signed 
June 1, 1990.
    Exposure means direct or indirect contact with the discharged oil.
    Incident means any occurrence or series of occurrences having the 
same origin, involving one or more vessels, facilities, or any 
combination thereof, resulting in the discharge or substantial threat 
of discharge of oil into or upon navigable waters or adjoining 
shorelines or the Exclusive Economic Zone.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, but not including any Alaska Native 
regional or village corporation, which is recognized as eligible for 
the special programs and services provided by the United States to 
Indians because of their status as Indians and has governmental 
authority over lands belonging to or controlled by the tribe.
    Injury means an observable or measurable adverse change in a 
natural resource or impairment of a natural resource service. Injury 
may occur directly or indirectly to a natural resource and/or service. 
Injury incorporates ``destruction,'' ``loss,'' and ``loss of use'' as 
provided in OPA.
    National Contingency Plan (NCP) means the National Oil and 
Hazardous Substances Pollution Contingency Plan codified at 40 CFR part 
300, which addresses the identification, investigation, study, and 
response to incidents.
    Natural resources means land, fish, wildlife, biota, air, water, 
ground water, drinking water supplies, and other such resources 
belonging to, managed by, held in trust by, appertaining to, or 
otherwise controlled by the United States (including the resources of 
the Exclusive Economic Zone), any state or local government or Indian 
tribe, or any foreign government.
    Navigable waters means the waters of the United States, including 
the territorial sea.
    Oil means oil of any kind or in any form, including, but not 
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with 
wastes other than dredged spoil. However, the term does not include 
petroleum, including crude oil or any fraction thereof, that is 
specifically listed or designated as a hazardous substance under 42 
U.S.C. 9601(14) (A) through (F).
    Oil Spill Liability Trust Fund means the Oil Spill Liability Trust 
Fund, established by section 9509 of the Internal Revenue Code of 1986 
(26 U.S.C. 9509).
    On-Scene Coordinator or OSC means the federal official 
predesignated by the U.S. Environmental Protection Agency or the U.S. 
Coast Guard to coordinate and direct response actions under the NCP, or 
the government official designated by the lead response agency to 
coordinate and direct removal actions under the NCP.
    OPA means the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.
    Pathway means a nexus between the incident and a natural resource 
and/or service.
    Person means an individual, corporation, partnership, association, 
state, municipality, commission, or political subdivision of a state, 
or any interstate body.
    Public vessel means a vessel owned or bareboat chartered and 
operated by the United States, or by a state or political subdivision 
thereof, or by a foreign nation, except when the vessel is engaged in 
commerce.
    Reasonable assessment costs for assessments performed under this 
part means those costs that:
    (1) Are incurred by trustees in accordance with this part;
    (2) Are proportionate to the restoration costs, except in cases 
where assessment costs are incurred but trustees do not pursue 
restoration, provided that trustees have determined they have 
jurisdiction under Sec. 990.41 of this part; and
    (3) Result from use of procedures for which the incremental cost is 
reasonably related to the incremental increase in assessment 
information.
    Reasonable assessment costs also include the administrative, legal, 
and enforcement costs necessary to carry out this part.
    Recovery means the return of injured natural resources and/or 
services to baseline.
    Response means actions taken under the NCP to protect public health 
and welfare, or the environment when there is a discharge or a 
substantial threat of a discharge of oil, including actions to contain 
or remove discharged oil from water and shorelines.
    Responsible party means:
    (1) Vessels. In the case of a vessel, any person owning, operating, 
or demise chartering the vessel.
    (2) Onshore facilities. In the case of an onshore facility (other 
than a pipeline), any person owning or operating the facility, except a 
federal agency, state, municipality, commission, or political 
subdivision of a state, or any interstate body, that as the owner 
transfers possession and right to use the property to another person by 
lease, assignment, or permit.
    (3) Offshore facilities. In the case of an offshore facility (other 
than a pipeline or a deepwater port licensed under the Deepwater Port 
Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the 
area in which the facility is located or the holder of a right of use 
and easement granted under applicable state law or the Outer 
Continental Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which 
the facility is located (if the holder is a different person than the 
lessee or permittee), except a federal agency, state, municipality, 
commission, or political subdivision of a state, or any interstate 
body, that as owner transfers possession and right to use the property 
to another person by lease, assignment, or permit.
    (4) Deepwater ports. In the case of a deepwater port licensed under 
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
    (5) Pipelines. In the case of a pipeline, any person owning or 
operating the pipeline.
    (6) Abandonment. In the case of an abandoned vessel, onshore 
facility, 

[[Page 39830]]
deepwater port, pipeline, or offshore facility, the persons who would 
have been responsible parties immediately prior to the abandonment of 
the vessel or facility.
    Restoration means any action, or combination of actions, to 
restore, rehabilitate, replace, or acquire the equivalent of injured 
natural resources and services. Restoration includes:
    (1) Primary restoration, which is either human intervention or 
natural recovery that returns injured natural resources and services to 
baseline; and
    (2) Compensatory restoration, which is action taken to make the 
environment and the public whole for service losses that occur from the 
date of the incident until recovery of the injured natural resource.
    Services or natural resource services means the functions performed 
by a natural resource for the benefit of another natural resource or 
the public.
    State means any of the states of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the 
United States Virgin Islands, the Commonwealth of the Northern 
Marianas, or any other territory or possession of the United States.
    Trustees or natural resource trustees means those officials of the 
federal and state governments, of Indian tribes, and of foreign 
governments, designated under 33 U.S.C. 2706(b).
    Value means the amount of items an individual is willing to give up 
to obtain a good or is willing to accept to forgo a good. Under this 
part, value may be measured either in terms of units of natural 
resource services or dollar amounts. The total value of a natural 
resource or service is equal to the sum of all individuals' values.
    Vessel means every type of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water, other than a public vessel.

Subpart D--Preassessment Phase


Sec. 990.40  Purpose.

    The purpose of this subpart is to provide a process by which 
trustees determine if they have jurisdiction to pursue restoration 
under OPA and, if so, whether it is appropriate to do so.


Sec. 990.41  Determination of jurisdiction.

    (a) Upon learning of an incident, trustees must determine whether 
there is jurisdiction to pursue restoration under OPA. To make this 
determination, trustees must decide if:
    (1) An incident as defined in Sec. 990.30 of this part has 
occurred;
    (2) The incident involves a discharge or a substantial threat of a 
discharge that is neither:
    (i) Permitted under a permit issued under federal, state, or local 
law;
    (ii) From a public vessel; nor
    (iii) From an onshore facility subject to the Trans-Alaska Pipeline 
Authority Act, 43 U.S.C. 1651, et seq.; and
    (3) Natural resources under the trusteeship of the trustees have or 
may be affected as a result of the incident.
    (b) If any of the conditions listed in paragraph (a) of this 
section are not met, trustees may not take additional action under this 
part. If all of these conditions are met, trustees may proceed under 
this part.


Sec. 990.42  Determination to conduct restoration planning.

    (a) If trustees determine that there is jurisdiction to pursue 
restoration under OPA, trustees must determine, based on readily 
available information, if:
    (1) Injuries likely have resulted or will result from the incident;
    (2) Response actions may not adequately address the potential 
injuries; and
    (3) Feasible restoration actions exist to address the potential 
injuries.
    (b) If any of the conditions listed in paragraph (a) of this 
section are not met, trustees may not take additional action under this 
part. However, trustees may recover all reasonable assessment costs 
incurred up to the point when they determined that the conditions were 
not met. If all the conditions are met, trustees may proceed under this 
part.


Sec. 990.43  Notice of Intent to Conduct Restoration Planning.

    (a) If trustees determine that all the conditions in Sec. 990.42(a) 
of this part are met, they must prepare a Notice of Intent to Conduct 
Restoration Planning. The Notice will include a discussion of the 
trustees' analysis under Secs. 990.41 and 990.42 of this part.
    (b) Trustees must make a copy of the Notice publicly available.
    (c) Trustees must send a copy of the Notice to the known 
responsible parties and invite their participation in the conduct of 
restoration planning.


Sec. 990.44  Administrative record.

    If trustees make a determination to conduct restoration planning, 
they must open a publicly available administrative record. Trustees 
must include in the administrative record: the Notice of Intent to 
Conduct Restoration Planning; documents and other factual information 
considered by the trustees when assessing injury and selecting a 
restoration action under subpart E of this part, including studies 
performed by the trustees; and documents that are submitted in a timely 
fashion by the responsible parties or other members of the public.


Sec. 990.45  Data collection.

    Trustees may conduct limited data collection during the 
Preassessment Phase. Data collection during the Preassessment Phase 
must be coordinated with response actions such that the collection does 
not interfere with or hinder the response actions. Trustees may collect 
the following types of data during the Preassessment Phase:
    (a) Data reasonably expected to be necessary to make a 
determination of jurisdiction under Sec. 990.41 of this part or a 
determination to conduct restoration planning under Sec. 990.42 of this 
part;
    (b) Ephemeral data; and
    (c) Information needed to design or implement anticipated 
assessment procedures under subpart E of this part.

Subpart E--Restoration Planning Phase


Sec. 990.50  Purpose.

    The purpose of this subpart is to provide a process by which 
trustees evaluate information on potential injuries to natural 
resources and/or services (injury assessment), and use that information 
to determine the need for and scale of restoration actions (restoration 
selection).


Sec. 990.51  Criteria for acceptable procedures.
    In order to be in accordance with this part, any procedures for 
assessing injury under Secs. 990.52 and 990.53 of this part and scaling 
compensatory restoration actions under Sec. 990.55(c)(3) of this part 
must meet the following criteria:
    (a) If available, injury determination and quantification 
procedures that provide information of use in determining the type and 
level of restoration appropriate for a particular injury must be used;
    (b) If a range of procedures providing the same type and quality of 
assessment information is available, the most cost-effective procedure 
must be used;
    (c) The incremental cost of a more complex study must be reasonably 
related to the expected increase in relevant assessment information 
provided by the more complex study; and
    (d) The procedures used must be reliable and valid for the 
particular context. 

[[Page 39831]]



Sec. 990.52  Injury assessment--injury determination.

    (a) General. After issuing a Notice of Intent to Conduct 
Restoration Planning under Sec. 990.43 of this part, trustees must 
determine if any injuries to natural resources and/or services have 
resulted from the incident. To make this determination, trustees must 
determine if:
    (1) The definition of ``injury'' has been met; and
    (2) Natural resources have been exposed to the discharged oil, and 
a pathway links the injured natural resource and/or service to the 
incident; or, for injuries resulting from response actions or incidents 
involving a substantial threat of a discharge, an injury to a natural 
resource or an impairment of use of a natural resource service has 
occurred as a result of the incident.
    (b) Injury. Trustees must determine whether an injury, as defined 
in Sec. 990.30 of this part, has occurred and, if so, identify the 
nature of the injury. Potential categories of injury include, but are 
not limited to, adverse changes in: survival, growth, and reproduction; 
health, physiology and biological condition; behavior; community 
composition; ecological processes and functions; physical and chemical 
habitat quality or structure; and public services.
    (c) Exposure and pathway. Except for injuries resulting from 
response actions or incidents involving a substantial threat of a 
discharge of oil, trustees must determine whether natural resources 
were exposed, either directly or indirectly, to the discharged oil from 
the incident, and estimate the amount or concentration and spatial/
temporal extent of the exposure. Trustees must also determine whether 
there is a plausible pathway linking the incident to the injuries. 
Pathways include, but are not limited to: the sequence of events by 
which the discharged oil was transported from the incident and came 
into direct physical contact with a natural resource; or the sequence 
of events by which the discharged oil was transported from the incident 
and caused an indirect injury.
    (d) Injuries resulting from response actions or incidents involving 
a substantial threat of a discharge. For injuries resulting from 
response actions or incidents involving a substantial threat of a 
discharge of oil, trustees must determine whether an injury or an 
impairment of use of a natural resource service has occurred as a 
result of the incident.
    (e) Selection of injuries to include in the assessment. When 
selecting potential injuries to assess, trustees must consider:
    (1) The natural resource/service of concern;
    (2) The adverse change that constitutes injury;
    (3) The potential degree, and spatial/temporal extent of the 
injury;
    (4) The evidence indicating injury;
    (5) The mechanism by which injury occurred;
    (6) The evidence indicating exposure;
    (7) The pathway from the incident to the natural resource/service 
of concern;
    (8) The potential natural recovery period;
    (9) The kinds of primary and/or compensatory restoration actions 
that are feasible; and
    (10) The kinds of procedures available to evaluate the injury, and 
the time and money requirements.
    (f) Procedures.
    Trustees perform injury determination using the assessment 
procedures described in Sec. 990.54 of this part.
    (g) Proceeding with the assessment. If any of the conditions for 
determining injury provided in paragraph (a) of this section is not 
met, trustees may not take additional action under this part. However, 
trustees may recover all reasonable assessment costs incurred up to the 
point when they determined that the conditions were not met. If all the 
conditions are met, trustees may proceed under this part.


Sec. 990.53  Injury assessment--quantification.

    (a) General. In addition to determining whether injuries have 
resulted from the incident, trustees must quantify the degree and 
spatial/temporal extent of such injuries. Trustees perform injury 
quantification using the assessment procedures described in Sec. 990.54 
of this part.
    (b) Trustees may quantify injuries in terms of:
    (1) The degree and spatial/temporal extent of injury to a natural 
resource;
    (2) The degree and spatial/temporal extent of injury to a natural 
resource relative to baseline with subsequent translation of that 
change to a reduction in services provided by the natural resource; or
    (3) The amount of services lost as a result of the incident.
    (c) Trustees must estimate the time for natural recovery without 
restoration, but including any response actions. Analysis of recovery 
times may include evaluation of factors such as:
    (1) Degree and spatial/temporal extent of injury;
    (2) Sensitivity of the injured natural resource and/or service;
    (3) Reproductive potential;
    (4) Stability and resilience of the affected environment;
    (5) Natural variability; and
    (6) Physical/chemical processes of the affected environment.


Sec. 990.54  Injury assessment--selecting assessment procedures.

    (a) General. When performing injury assessment, trustees must 
select appropriate assessment procedures. Trustees may use simplified 
or incident-specific assessment procedures as described in paragraphs 
(d) and (e) of this section. Trustees may also use more than one 
assessment procedure provided there is no double recovery.
    (b) Selection of assessment procedures. When selecting assessment 
procedures, trustees must consider:
    (1) Potential nature, degree, and spatial/temporal extent of the 
injury;
    (2) Potential restoration actions for the injury;
    (3) Range of assessment procedures available, including the 
applicability of simplified assessment procedures;
    (4) Time and cost necessary to implement the assessment procedures; 
and
    (5) Relevance between the information generated by the assessment 
procedures and the information needed for restoration planning.
    (c) Request for incident-specific assessment procedures. When 
trustees have made a determination that a simplified assessment 
procedure is the most appropriate procedure for a given incident or 
injury, the responsible parties may request that trustees use incident-
specific assessment procedures instead of a simplified assessment 
procedure if the responsible parties, in a timeframe acceptable to the 
trustees:
    (1) Identify the incident-specific assessment procedures to be used 
and the reasons supporting the technical appropriateness of such 
procedures for the incident or injury;
    (2) Advance the costs of using such incident-specific assessment 
procedures; and
    (3) Agree not to challenge the reasonableness of the costs of using 
such incident-specific assessment procedures.
    (d) Simplified assessment procedures.
    (1) Type A procedures. Trustees may use type A procedures 
identified in 43 CFR part 11, subpart D, that address oil discharges 
provided that conditions are sufficiently similar to those listed in 43 
CFR 11.33 regarding use of the procedures.
    (2) Compensation Formulas. [Reserved]
    (e) Incident-specific assessment procedures. Trustees may use 
incident-

[[Page 39832]]
specific assessment procedures including, alone or in any combination:
    (1) Field methods;
    (2) Laboratory methods;
    (3) Model-based methods; and
    (4) Literature-based methods.


Sec. 990.55  Restoration selection--development of a reasonable range 
of alternatives.

    (a) General. After trustees have determined and quantified injury 
under Secs. 990.52 and 990.53 of this part, they must identify a 
reasonable range of restoration alternatives for consideration, except 
as provided in Sec. 990.58 of this part regarding use of a Regional 
Restoration Plan. Each alternative may identify an overall package of 
actions for addressing the injured natural resources and/or services of 
concern, or actions to restore individual injured natural resources and 
services, where there is reasonable basis for separately evaluating 
actions to restore separate natural resources and/or services. The 
range of alternatives must include a no-action alternative under which 
no human intervention would be taken either for primary restoration or 
for compensatory restoration.
    (b) Primary restoration. (1) General. Each alternative must include 
a primary restoration component.
    (2) Types of alternatives. When identifying primary restoration 
alternatives to be considered, trustees must consider whether:
    (i) Conditions exist that would limit the effectiveness of primary 
restoration actions (e.g., residual sources of contamination);
    (ii) Primary restoration actions are necessary or feasible to 
return the physical, chemical, and biological conditions necessary to 
allow recovery or restoration of the injured resources (e.g., 
replacement of sand or vegetation); and
    (iii) Primary restoration actions focusing on certain key species 
or habitats would be an effective approach to achieving baseline 
conditions.
    (c) Compensatory restoration. (1) General. In addition to primary 
restoration, trustees have the discretion to include a compensatory 
restoration component in some or all of the restoration alternatives.
    (2) Types of alternatives. When identifying the types of 
compensatory restoration alternatives to be considered, trustees must 
first identify compensatory restoration actions that, in the judgment 
of the trustees, provide services of the same type and quality as those 
injured. If such actions are infeasible or too few in number to provide 
a reasonable range of alternatives, trustees may identify other actions 
provided that those actions provide services of comparable type and 
quality as those injured.
    (3) Scaling compensatory restoration actions.
    (i) General. After trustees have identified the types of 
compensatory restoration alternatives that will be considered, they 
must determine the scale of those alternatives that will make the 
environment and the public whole.
    (ii) Service-to-service scaling approach. When determining the 
scale of a compensatory restoration alternative that provides services 
that are of the same type and quality, and are subject to comparable 
resource scarcity and demand conditions as those lost, trustees must 
use the service-to-service scaling approach. Under the service-to-
service scaling approach, trustees determine the scale of the 
compensatory restoration alternative that will produce services equal 
in quantity to those lost.
    (iii) Valuation scaling approach. (A) When determining the scale of 
a compensatory restoration alternative that provides services that are 
of a different type or quality, or are subject to non-comparable 
resource scarcity or demand conditions as those lost, trustees may use 
the valuation scaling approach. Under the valuation scaling approach, 
trustees determine the amount of services that must be provided to 
produce the same value lost to the public. Trustees must explicitly 
measure the value of lost services and then determine which scale of 
the compensatory restoration alternative will produce services of 
equivalent value to the public.
    (B) If valuation of the services provided by the compensatory 
restoration alternative cannot, in the judgment of the trustees, be 
performed at a reasonable assessment cost, as defined in Sec. 990.30 of 
this part, the trustees may estimate the dollar value of the lost 
services and select the scale of the alternative that has a cost 
equivalent to the lost value. The responsible parties may request that 
trustees value the services provided by the alternative if the 
responsible parties, within a timeframe acceptable to the trustees, 
advance the costs of doing so and agree not to challenge the 
reasonableness of the costs of performing such valuation.
    (iv) Discounting and uncertainty. When scaling a compensatory 
restoration alternative, trustees must address the uncertainties 
associated with the predicted consequences of the alternative and must 
discount all service quantities and/or values to the date the demand is 
presented. Where feasible, trustees should use risk-adjusted measures 
of losses due to injury and gains from the compensatory restoration 
alternative, in conjunction with a riskless rate of discount. If the 
streams of losses and gains cannot be adequately adjusted for risks, 
then trustees may use a discount rate that incorporates a suitable risk 
adjustment to the riskless rate. When discounting future service 
quantities or values, trustees may use the appropriate inflation index 
to adjust nominal rates of discount into real terms.
    (d) Restoration alternatives for simplified assessments. If 
trustees used a simplified assessment procedure under Sec. 990.54(d) of 
this part, they may develop a reasonable range of restoration 
alternatives for addressing the injuries assessed by that simplified 
assessment procedure based on consideration of any combination of:
    (1) Injury predictions, if any, provided by the simplified 
assessment procedure;
    (2) Restoration recommendations, if any, provided by the simplified 
assessment procedure; and
    (3) Lost values, if any, calculated by the simplified assessment 
procedure.


Sec. 990.56  Restoration selection--evaluation of alternatives.

    (a) Once trustees have developed a reasonable range of restoration 
alternatives under Sec. 990.55 of this part, they must evaluate the 
alternatives based on:
    (1) Extent to which each alternative can return the injured natural 
resources and services to baseline and make the environment and the 
public whole for interim service losses;
    (2) Extent to which each alternative improves the rate of recovery;
    (3) Extent to which each alternative will avoid additional injury;
    (4) Level of uncertainty in the success of each alternative;
    (5) Extent to which each alternative benefits more than one natural 
resource and/or service;
    (6) Cost of each alternative;
    (7) Effects of each alternative on public health and safety, and 
the environment; and
    (8) Whether any alternative violates any laws or regulations.
    (b) Based on the evaluation of the factors listed in paragraph (a) 
of this section, trustees must select a preferred restoration 
alternative. If there are two or more preferred alternatives, trustees 
must select the most cost-effective alternative.
    (c) Where additional information is needed to identify and evaluate 
the restoration alternatives, trustees may implement pilot studies. 

[[Page 39833]]



Sec. 990.57  Restoration selection--preparation of a Draft and Final 
Restoration Plan.

    (a) Draft Restoration Plan. After selecting a preferred restoration 
alternative under Sec. 990.56 of this part, the trustees must prepare a 
Draft Restoration Plan. The Draft Restoration Plan must include:
    (1) A summary of injury assessment procedures and methods used;
    (2) A description of the degree, nature, and spatial/temporal 
extent of injuries to natural resources and/or services resulting from 
the incident;
    (3) The goals and objectives of restoration;
    (4) The range of restoration alternatives considered and a 
discussion of how such alternatives were identified and developed under 
Sec. 990.55 of this part;
    (5) A discussion of the trustees' evaluation of the restoration 
alternatives under Sec. 990.56 of this part;
    (6) A description of a monitoring plan for documenting restoration 
effectiveness and the need for corrective action and performance 
criteria for judging the success and completion of restoration and the 
need for corrective action; and
    (7) A description of the involvement of the responsible party in 
the assessment process, and proposed involvement in the restoration 
process.
    (b) Public review and comment. The Draft Restoration Plan must be 
made available for public review and comment for at least 30 calendar 
days. The type of notice, review, and comment procedures used will 
depend on the nature of the incident and the restoration actions being 
proposed.
    (c) Final Restoration Plan. After reviewing public comments on the 
Draft Restoration Plan, trustees must develop a Final Restoration Plan. 
The Final Restoration Plan must include: the information specified in 
paragraph (a) of this section; a response to public comments; and an 
indication of any changes made to the Draft Restoration Plan. Trustees 
must make the Final Restoration Plan publicly available.


Sec. 990.58  Restoration selection--use of a Regional Restoration Plan.

    (a) General. If trustees used a simplified assessment procedure 
under Sec. 990.54(d) of this part, they may consider using a Regional 
Restoration Plan instead of developing an incident-specific restoration 
plan.
    (b) Existing Regional Restoration Plan. (1) Trustees may use an 
existing Regional Restoration Plan provided that the Plan:
    (i) Was developed subject to public review and comment; and
    (ii) Addresses and is currently relevant to the same or comparable 
natural resources or services as those identified during injury 
assessment as having been injured.
    (2) If the conditions set forth in paragraph (b)(1) of this section 
are met, trustees may present the responsible parties with a demand 
under Sec. 990.62 of this part for the damages calculated by the 
simplified assessment procedure and use the recovered sums to implement 
the Regional Restoration Plan as provided in Sec. 990.65 of this part.
    (c) New Regional Restoration Plan. (1) If there is not an existing 
Regional Restoration Plan that meets the conditions of paragraph (b)(1) 
of this section and the information provided by the simplified 
assessment procedure does not support development of an incident-
specific restoration plan, trustees may present the responsible parties 
with a demand under Sec. 990.62 of this part for the damages calculated 
by the simplified assessment procedure and place the recovered funds 
into an account with other similar recoveries under Sec. 990.65 of this 
part, until such time that sufficient funds to develop and implement a 
new Regional Restoration Plan are collected. Recoveries may only be 
commingled in this manner where injuries to natural resources and/or 
services were similar for the incidents represented by pooled funds, 
and where the incidents were within the same region (i.e. ecosystem or 
watershed).
    (2) New Regional Restoration Plans must be developed subject to 
public review and comment.
    (d) Notice of Intent to Use a Regional Restoration Plan. If 
trustees intend to use a Regional Restoration Plan instead of 
developing an incident-specific restoration plan, they must prepare a 
Notice of Intent to Use a Regional Restoration Plan. Trustees must make 
a copy of the Notice publicly available. The Notice must include:
    (1) A description of the nature, degree, and spatial/temporal 
extent of injuries to natural resources and/or services resulting from 
the incident;
    (2) A description of the existing Regional Restoration Plan and an 
explanation of how the conditions set forth in paragraph (b)(1) of this 
section are met; or a description of the anticipated process for 
developing a new Regional Restoration Plan and an explanation of why 
the information provided by the simplified assessment procedure does 
not support development of an incident-specific restoration plan; and
    (3) Identification of the damage amount sought and the calculation 
of that amount.

Subpart F--Restoration Implementation Phase


Sec. 990.60  Purpose.

    The purpose of this subpart is to provide a process for 
implementing restoration.


Sec. 990.61  Administrative record.

    (a) Closing the administrative record for restoration planning. 
After the trustees prepare the Final Restoration Plan or the Notice of 
Intent to Use a Regional Restoration Plan, they must close the 
administrative record. Trustees may not add documents to the record 
once it is closed. However, trustees may add documents relating to a 
Final Restoration Plan if such documents:
    (1) Are offered by an interested party that did not receive actual 
or constructive notice of the Draft Restoration Plan and the 
opportunity to comment on the Plan;
    (2) Do not duplicate information already contained in the 
administrative record; and
    (3) Raise significant issues regarding the Final Restoration Plan.
    (b) Opening an administrative record for restoration 
implementation. Trustees may open an administrative record for 
implementation of restoration.


Sec. 990.62  Presenting a demand.

    (a) General. After closing the administrative record for 
restoration planning, trustees must present a written demand to the 
responsible parties. Delivery of the demand should be made in a manner 
that establishes the date of receipt by the responsible party.
    (b) When a Final Restoration Plan has been developed. Except as 
provided in paragraph (c) of this section, the demand must ask the 
responsible parties to either:
    (1) Implement the Final Restoration Plan subject to trustee 
oversight and reimburse the trustees for their oversight costs; or
    (2) Advance to the trustees a specified sum representing all costs 
associated with implementing the Final Restoration Plan, discounted as 
provided in Sec. 990.63(a) of this part.
    (c) When a Regional Restoration Plan is used. If the trustees 
intend to use a Regional Restoration Plan under Sec. 990.58 of this 
part, the demand must ask the responsible parties to pay damages in the 
amount calculated by the simplified assessment procedure under 
Sec. 990.54(d) of this part. Depending on the circumstances, it may 

[[Page 39834]]
also be feasible for the responsible parties to implement selected 
portions of the Regional Restoration Plan.
    (d) Additional contents of demand. The demand must also include:
    (1) Identification of the incident from which the claim arises;
    (2) Identification of the trustees asserting the claim;
    (3) A brief description of the injuries for which the claim is 
being brought;
    (4) The index to the administrative record;
    (5) The Final Restoration Plan or Notice of Intent to Use a 
Regional Restoration Plan; and
    (6) A request for reimbursement of:
    (i) Reasonable assessment costs, as defined in Sec. 990.30 of this 
part, compounded as provided in Sec. 990.63(b) of this part;
    (ii) The cost, if any, of conducting emergency restoration under 
Sec. 990.25 of this part, compounded as provided in Sec. 990.63(b) of 
this part; and
    (iii) Interest on the amounts recoverable under 33 U.S.C. 2705, 
which provides for prejudgment and post-judgment interest to be paid at 
a commercial paper rate, starting from 30 calendar days from the date a 
demand is presented until the date the claim is paid.


Sec. 990.63  Discounting and compounding.

    (a) Estimated future restoration costs. When determining estimated 
future costs of implementing a Final Restoration Plan, trustees must 
discount such future costs back to the date the demand is presented. 
Trustees may use a discount rate that represents the yield on 
recoveries available to trustees. The price indices used to project 
future inflation must reflect the major components of the restoration 
costs.
    (b) Past assessment and emergency restoration costs. When 
calculating the present value of assessment and emergency restoration 
costs already incurred by trustees, trustees must compound the past 
costs forward to the date the demand is presented. To perform the 
compounding, trustees may use the actual U.S. Treasury borrowing rate 
on marketable securities of comparable maturity to the period of 
analysis. For costs incurred by state or tribal trustees, trustees may 
compound using parallel state or tribal borrowing rates.
    (c) Trustees are referred to Appendices B and C of OMB Circular A-
94 for information about nominal and real U.S. Treasury rates of 
various maturities and for further guidance in calculation procedures. 
Copies of Appendix C, which is regularly updated, and of the Circular 
are available from the OMB Publications Office (202-395-7332).


Sec. 990.64  Uncompensated claims.

    (a) If the responsible parties do not agree to the demand within 90 
calendar days after trustees present the demand, the trustees may 
either file a judicial action for damages or file a claim for 
uncompensated damages with the Oil Spill Liability Trust Fund.
    (b) Judicial actions and claims must be filed within three years 
after the Final Restoration Plan or Notice of Intent to Use a Regional 
Restoration Plan is made publicly available, as provided in 33 U.S.C. 
2717(f)(1)(B) and 2712(h)(2).


Sec. 990.65  Opening an account for recovered damages.

    (a) General. Sums recovered by trustees in satisfaction of a 
natural resource damage claim must be placed in a revolving trust 
account. Sums recovered for past assessment costs and emergency 
restoration costs may be used to reimburse the trustees. All other sums 
must be used to implement the Final Restoration Plan, implement an 
existing Regional Restoration Plan, or develop and implement a new 
Regional Restoration Plan.
    (b) Joint trustee recoveries. (1) General. Trustees may establish a 
joint account for damages recovered pursuant to joint assessment 
activities, such as an account under the registry of the applicable 
federal court.
    (2) Management. Trustees may develop enforceable agreements to 
govern management of joint accounts, including agreed-upon procedures 
and criteria and personnel for authorizing expenditures out of such 
joint accounts.
    (c) Interest-bearing accounts. Trustees may place recoveries in 
interest-bearing revolving trustee accounts.
    (d) Escrow accounts. Trustees may establish escrow accounts or 
other investment accounts unless specifically prohibited by law.
    (e) Records. Trustees must maintain appropriate accounting and 
reporting methods to document expenditures from accounts established 
under this section.
    (f) Oil Spill Liability Trust Fund. Any sums remaining in an 
account established under this section that are not used either to 
reimburse trustees for past assessment and emergency restoration costs 
or to implement restoration must be deposited in the Oil Spill 
Liability Trust Fund.


Sec. 990.66  Additional considerations.

    Upon settlement of a claim, trustees should consider the following 
actions to facilitate implementation of restoration:
    (a) Establishment of a trustee committee or memorandum of 
understanding to coordinate among affected trustees;
    (b) Development of more detailed workplans to implement 
restoration;
    (c) Monitoring and oversight of restoration; and
    (d) Evaluation of restoration success and the need for corrective 
action.

[FR Doc. 95-19128 Filed 8-2-95; 8:45 am]
BILLING CODE 3510-12-P