[Federal Register Volume 63, Number 28 (Wednesday, February 11, 1998)]
[Rules and Regulations]
[Pages 6846-6847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3455]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 990


Natural Resource Damage Assessments

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

ACTION: Reconsideration of final rule; request for comments.

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SUMMARY: On January 5, 1996, the National Oceanic and Atmospheric 
Administration (NOAA) promulgated final regulations for the assessment 
of natural resource damages pursuant to section 1006(e) of the Oil 
Pollution Act of 1990. These final regulations, codified at 15 CFR Part 
990, were published at 61 FR 440. The final regulations were 
challenged, pursuant to section 1017(a) of OPA, and, on November 18, 
1997, a ruling on the final regulations was issued by the U.S. Court of 
Appeals for the District of Columbia Circuit (General Electric Co. v. 
Commerce, No. 96-1096 (D.C. Cir., Nov. 18, 1997)). Two issues were 
remanded to NOAA for further agency decisionmaking--the scope of 
authorization for recovery of legal costs and authorization for the 
removal of residual oil by trustees as part of a natural resource 
restoration action. This request seeks public comment on the issue 
involved in the authorization for the removal of residual oil by 
trustees as part of a natural resource restoration action. The issue of 
the scope of authorization for recovery of legal costs may be sought 
through publication of a future request for comments.

DATES: Written comments should be received no later than March 30, 
1998.

ADDRESSES: Written comments are to be submitted to: Eli Reinharz, c/o 
Office of General Counsel/Natural Resources, 1315 East-West Highway, 
Room #15132, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Eli Reinharz, 301-713-3038, ext. 193; 
(FAX: 301-713-4387; e-mail: [email protected]) or Linda 
Burlington, 301-713-1217 (FAX: 301-713-1229; e-mail: 
Linda.B.B[email protected]).

SUPPLEMENTARY INFORMATION: In the event of a discharge or substantial 
threat of a discharge of oil (incident), the Oil Pollution Act of 1990 
(OPA), 33 U.S.C. 2701 et seq., provides that federal, state, Indian 
tribal and/or foreign natural resource trustees may determine natural 
resource injuries, assess natural resource damages, present a claim, 
recover damages, and develop and implement a plan for the restoration, 
rehabilitation, replacement, or acquisition of the equivalent of the 
injured natural resources and services under their trusteeship. The 
National Oceanic and Atmospheric Administration (NOAA) was directed by 
Congress to promulgate regulations for the assessment of natural 
resource damages resulting from an incident.
    NOAA promulgated final regulations on January 5, 1996 (see 61 FR 
440), codified at 15 CFR Part 990. The regulations are for the use of 
authorized federal, state, Indian tribe, and foreign natural resource 
trustees. A major goal of OPA is to make the environment and public 
whole for harm to natural resources and services as a result of an 
incident. The regulations provide a framework for conducting natural 
resource damage assessments that achieve this OPA goal. Under the 
regulations, assessments are conducted in the open, with responsible 
parties and the public involved in the planning process to ensure that 
restoration will be achieved more quickly, transaction costs will 
decrease, and litigation will be avoided. Restoration plans developed 
with input from the public and responsible parties are the basis of a 
claim for natural resource damages, with final restoration plans 
presented to responsible parties for funding or implementation.
    The final regulations were challenged, pursuant to section 1017(a) 
of OPA. On November 18, 1997, a ruling on the final regulations was 
issued by the U.S. Court of Appeals for the District of Columbia 
Circuit (General Electric Co. v. Commerce, No. 96-1096 (D.C. Cir., Nov. 
18, 1997)). Two issues were remanded to NOAA for further agency 
decisionmaking--the scope of authorization for recovery of legal costs 
and authorization for the removal of residual oil. This Notice requests 
comments to address the authorization for the removal of residual oil 
by trustees.
    Section 990.53(b)(3)(i) of the final OPA rule authorizes trustees 
to ``[r]emove conditions that would prevent or limit the effectiveness 
of any restoration action (e.g., residual sources of contamination)'' 
and to consider these actions primary restoration. NOAA's rationale for 
this provision was that there may be circumstances where trustees need 
to remove residual oil beyond response actions taken by the lead 
response agency as part of a restoration action. For example, following 
the August 1993 Tampa Bay, Florida, oil spill, the trustees initiated 
an action to remove oil from oyster reefs to further minimize and 
eliminate injury to the reefs, including erosion that could have 
affected adjoining mangroves, and other biological resources.
    In its ruling, the Court directed NOAA to reconsider the final rule 
language, posing a series of questions about the standards and 
circumstances under which removal actions may be taken by trustees. To 
address these questions, NOAA is inviting the submission of information 
on both case-specific and other consultation experiences, with the 
United States Coast Guard, the Environmental Protection Agency, or 
State response agencies relating to removal actions taken both during 
and after response. NOAA is also interested in reviewing information 
regarding the standards, circumstances, and outcomes of incidents where 
trustees considered additional removal actions beyond those proposed by 
the lead response agency as part of a natural resource restoration 
action, as well as the issues and results

[[Page 6847]]

of consultations with response agencies to seek oil removal during or 
after the response phase.

    Dated: February 6, 1998.
Nancy Foster,
Assistant Administrator for Ocean Services and Coastal Zone Management.
[FR Doc. 98-3455 Filed 2-10-98; 8:45 am]
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