# Natural Resource Damage Assessments

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-31577

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 5, 1996
- **Citation:** 61 FR 440

## Text

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

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

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

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

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

Background

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

INTRODUCTION

I. Goal of OPA: Focus on Restoration

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

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

II. Overview of the Restoration Planning Process Under the Rule

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

Preassessment Phase

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

Restoration Planning Phase

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

Injury Assessment

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

Restoration Selection

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

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

Selection of a Preferred Alternative

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

Restoration Implementation Phase

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

DISCUSSION

Subpart A--Introduction

I. Purpose

The goal of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et
seq., is to make the environment and public whole for injuries to
natural resources and services resulting from an incident involving a
discharge or substantial threat of a discharge of oil (incident). This
goal is achieved through returning the injured natural resources and
services to baseline and through compensation for interim losses of
those natural resources and services from the date of the incident
until recovery.
The purpose of this rule is to promote expeditious and cost-
effective restoration of natural resources and services injured as a
result of an incident. To fulfill this purpose, the rule provides a
natural resource damage assessment process for developing a plan for
restoration of the injured natural resources and services and pursuing
implementation or funding of the plan by responsible parties. The rule
also provides an administrative process for involving interested
parties in the assessment, a range of assessment procedures for
identifying and evaluating injuries to natural resources and services,
and a means for selecting appropriate restoration actions from a
reasonable range of alternatives.

II. Scope

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

III. Overview

The rule describes three phases of a natural resource damage
assessment. The Preassessment Phase, during which trustees determine
whether to pursue restoration, is described in subpart D of the rule.
The Restoration Planning

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Phase, during which trustees evaluate information on potential injuries
and use that information to determine the need for, type of, and scale
of restoration, is described in subpart E of the rule. The Restoration
Implementation Phase, during which trustees ensure implementation of
restoration, is described in subpart F of the rule.

IV. Rebuttable Presumption

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

V. Coordination

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

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

VI. Considerations for Facilitating Restoration

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

Subpart B--Authorities

I. Relationship to the CERCLA Natural Resource Damage Assessment
Regulations

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

II. Relationship to the NCP

This rule provides procedures by which trustees may determine
appropriate restoration of injured natural resources and services,
where such injuries are not fully addressed by response actions.
Response actions and coordination with damage assessment activities are
conducted pursuant to the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), 40 CFR part 300.

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III. Prohibition on Double Recovery

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

IV. Compliance With NEPA and the CEQ Regulations

Under this rule, the National Environmental Policy Act (NEPA)
applies to restoration actions taken by federal trustees, generally
becoming applicable when the trustees begin the process of developing a
Draft Restoration Plan under subpart E of this rule, except where a
categorical exclusion or other exceptions to NEPA apply. Thus, when a
federal trustee proposes to take restoration actions under this rule,
it must integrate this rule with NEPA, the Council on Environmental
Quality (CEQ) regulations on NEPA, and any NEPA regulations promulgated
by that federal trustee agency. In conducting the NEPA process
concurrently rather than consecutively with the assessment, federal
trustees are more likely to make the environment and public whole,
avoid delays in restoration, and reduce transaction costs.
Likewise, certain state trustees may also have equivalent NEPA
requirements, usually referred to as State Environmental Policy Acts
(SEPA). Thus, where a SEPA applies to state trustees, they must
consider the extent to which this rule can be integrated with their
SEPA requirements. Although other trustees may not be bound by NEPA or
NEPA-equivalent requirements, the trustees may still find the
procedural planning process as defined under NEPA (or SEPA) useful in
facilitating restoration.
The provisions of Sec. 990.23 of this rule strictly relate to NEPA
and federal trustees. The rule provides a brief description of the
general procedures and products that may be expected if a restoration
action is subject to a federal trustee's NEPA compliance requirements.
Federal trustees should refer to the CEQ regulations and their own
agency(ies) NEPA regulations for specific guidance regarding NEPA
requirements.
D. Restoration Plans
1. Purpose
After selecting a restoration alternative, trustees must prepare a
Draft Restoration Plan. Development of a Draft Restoration Plan
provides a vehicle for informing the affected and interested public of
the results of the trustees' analyses and decisions, and encouraging
public review. Public review can also supplement expert peer review
when comments are solicited from various professional communities or
other knowledgeable persons.
2. Draft Restoration Plan
A Draft Restoration Plan should include:
(i) A summary of injury assessment procedures used;
(ii) A description of the nature, degree, and spatial and temporal
extent of injuries resulting from the incident;
(iii) The goals and objectives of restoration;
(iv) The range of restoration alternatives considered, and a
discussion of how such alternatives were developed and evaluated under
this rule;
(v) Identification of the trustees' tentative preferred
alternative(s);
(vi) A description of past and proposed involvement of the
responsible parties in the assessment; and
(vii) A description of monitoring for documenting restoration
effectiveness, including performance criteria that will be used to
determine the success of restoration and need for interim corrective
action.
When developing the Draft Restoration Plan, trustees must clearly
define plan objectives that specify the desired outcome to be
accomplished, and the performance criteria by which successful
restoration will be judged. Trustees should, at a minimum, determine
what criteria will constitute success such that responsible parties are
relieved of responsibility for further restoration actions or
necessitate corrective actions in order to comply with the terms of a
restoration or settlement agreement.
Performance criteria include structural, functional, temporal, and/
or other demonstrable goals that the trustees should determine with
respect to all restoration actions. For example, an agreement to create
new intertidal marsh habitat as compensation for a marsh injured by oil
could be described by performance criteria including the number of
acres to be created, location, elevation of new habitat, species to be
planted and details for planting such as density, and time frame in
which identifiable stages of the project should be completed.
The types of parameters that should be addressed in monitoring
include duration and frequency of monitoring needed to gauge progress
and success, the level of sampling needed to detect success or the need
for corrective action, and whether monitoring of a reference or control
site is needed to determine progress and success. Reasonable monitoring
and oversight costs cover those activities necessary to gauge the
progress, performance, and success of the restoration actions developed
under the plan.
3. Public Review and Comment
Public review and comment of both Draft and Final Restoration Plans
will depend on the nature of the incident and any applicable federal
trustee NEPA requirements, as described in Secs. 990.14(d) and 990.23
of the rule, but must be sufficient to satisfy OPA's requirement for
public involvement in planning restoration. Thus, trustees should
consider such factors as the form of the involvement (e.g., a hearing,
notice, or solicited comments), extent of

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

V. Compliance With Other Applicable Laws and Regulations

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

VI. Settlement

Trustees may settle claims for natural resource damages under this
rule at any time, provided that the settlement is adequate in the
judgment of the trustees to satisfy the goal of OPA and is fair,
reasonable, and in the public interest, with particular consideration
of the adequacy of the settlement to restore, replace, rehabilitate, or
acquire the equivalent of the injured natural resources and services.
Settlements by federal trustees will generally be subject to approval
by the U.S. Department of Justice. Sums recovered in settlement of such
claims, other than reimbursement of trustee costs, may only be expended
in accordance with a restoration plan, which may be set forth in whole
or in part in a consent decree or other settlement agreement, that is
made available for public review.
In determining the sufficiency of settlements to meet the public
interest test under other statutes, reviewing courts have afforded
broad deference to the judgment of federal agencies recommending such
settlements. Courts have looked to whether the agencies have considered
such factors as the benefits of early settlement as opposed to delayed
recovery through litigation, litigation risk, certainty in the claim,
and attitude of the parties toward the settlement, among other factors.

VII. Emergency Restoration

Emergency restoration actions should be considered in situations
where immediate action is necessary to minimize continuing or prevent
additional injury. Although emergency restoration actions may be
considered and implemented by trustees at any time throughout the
assessment, typically trustees begin evaluating the need for emergency
restoration during response. If response actions are still underway,
trustees, through their Regional Response Team member or designee, must
coordinate with the On-Scene Coordinator (OSC) before taking any
emergency restoration actions. Any emergency restoration actions
proposed by trustees should not interfere with on-going response
actions. Trustees must explain to response agencies through the OSC
prior to implementation of emergency restoration actions their reasons
for believing that proposed emergency restoration actions will not
interfere with on-going response actions.
Trustees must provide notice to identified responsible parties of
any emergency restoration actions and, to the extent time permits,
invite their participation in the conduct of those actions, consistent
with the provisions of Sec. 990.14(c) of the rule. Trustees must also
provide notice to the public, to the extent practicable, of these
planned emergency restoration actions. The rule allows trustees to take
emergency restoration action only if such action is feasible, likely to
minimize continuing or prevent additional injury, and can be conducted
at a cost that is not unreasonable. Trustees must also notify the
public of the justification for, the nature and extent of, and the
results of emergency restoration actions within a reasonable time
following the actions. The means by which this notice is provided to
the public is left to the discretion of the trustees.
The costs associated with evaluating, planning, and implementing
emergency restoration are recoverable costs.

VIII. Use of Assessment Procedures

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

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

Subpart C--Definitions

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

Baseline

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

Incident

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

Injury

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

Oil

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

Pathway

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

Reasonable Assessment Costs

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

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costs associated with public participation and indirect costs.

Recovery

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

Restoration

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

Services

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

Value

Value can be measured in units of natural resource services or
dollar amounts. An individual's value of a good or service is
represented by the maximum amount of goods, services, or money that the
individual is willing to give up to obtain a specific good or service,
or the minimum amount of goods, services, or money that an individual
is willing to accept to forgo a specific good or service. The total
value of a natural resource or service includes the value individuals
derive from direct use of the natural resource, for example, swimming,
boating, hunting, or birdwatching, as well as the value individuals
derive from knowing a natural resource will be available for future
generations. In many contexts, particularly in markets, value is
represented in terms of units of money. However, value can be measured
using other measures, including units of a natural resource service.

Subpart D--Preassessment Phase

I. Purpose

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

II. Determinations

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

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

III. Data Collection During Preassessment Phase

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

IV. Notice of Intent to Conduct Restoration Planning

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

V. Administrative Record

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

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

Subpart E--Restoration Planning Phase

I. Purpose

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

II. Injury Assessment

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

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

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

III. Restoration Selection

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

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

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

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density, and time frame in which identifiable stages of the restoration
action should be completed.
The types of parameters that should be addressed in monitoring
include duration and frequency of monitoring needed to gauge progress
and success, the level of sampling needed to detect success or the need
for corrective action, and whether monitoring of a reference or control
site is needed to determine progress and success. Reasonable monitoring
and oversight costs cover those activities necessary to gauge the
progress, performance, and success of the restoration actions developed
under the plan.
3. Public Review and Comment
Public review and comment of both Draft and Final Restoration Plans
will depend on the nature of the incident and any applicable federal
trustee NEPA requirements, as described in Secs. 990.14(d) and 990.23
of the rule, but must be sufficient to satisfy OPA's requirement for
public involvement in planning restoration. Thus, trustees should
consider such factors as the form of the involvement (e.g., a hearing,
notice, or solicited comments), extent of public involvement (e.g.,
timing and frequency), and the forum for communicating with the public
(e.g., local papers, the Federal Register, direct contacts to known
interested parties).
4. Final Restoration Plan
After reviewing public comments on the Draft Restoration Plan,
trustees must develop a Final Restoration Plan. As part of the Final
Restoration Plan, trustees must consider comments on the Draft
Restoration Plan. In response to the comments, the trustees may need to
modify the restoration alternatives being considered, develop and
evaluate alternatives that have not been given serious consideration by
the trustees, supplement, improve, or modify the analyses, make factual
corrections, or explain why the comments do not warrant further trustee
response, citing the reasons to support the trustee position, and
possibly indicate the circumstances that would trigger reappraisal or
further response.
In the Final Restoration Plan, trustees indicate the restoration
alternatives that will be implemented and include the information in
the Draft Restoration Plan. The format of the Final Restoration Plan,
which essentially follows that of the Draft Restoration Plan, should
clearly indicate all significant changes to the Draft Restoration Plan.
E. Use of a Regional Restoration Plan or Existing Restoration Project
The rule allows trustees to consider all or part of an existing
Regional Restoration Plan or other existing, planned, or proposed
environmental restoration project as one of the range of restoration
alternatives, including natural recovery, evaluated to restore injuries
resulting from a particular incident. Like any other restoration
alternative considered, Regional Restoration Plans and existing
restoration projects must be consistent with OPA's requirement that
damages recovered be used solely to restore, replace, rehabilitate, or
acquire the equivalent of injured natural resources and/or services.
Regional Restoration Plans or other existing restoration projects meet
this requirement if the plan or project will return injured natural
resources and/or services to baseline and/or compensate for interim
losses. Use of an existing plan or project may be considered as either
a primary or compensatory restoration action under the rule, depending
on the circumstances of the incident, injuries, and natural resources
or services provided by the plan or project.
Under the rule, selection of an existing plan or project as the
preferred restoration alternative requires that the plan or project had
been developed with public review and comment, or is subject to public
review and comment in accordance with the rule. The existing plan or
project must also be demonstrated to provide a sufficient link to the
incident in terms of the type and scale of natural resources and
services provided by the plan or project.
The rule also allows trustees to recover partial funding of
existing plans or projects from responsible parties, where a plan or
project that represents the preferred primary or compensatory
restoration for an incident will provide significantly greater levels
of natural resources and/or services than those lost as a result of the
incident. In these instances, trustees may request the scale of the
restoration determined to be appropriate for the incident of concern.
Trustees may pool such partial recoveries until adequate funding is
available to implement the existing plan or project. Trustees must make
diligent efforts to ensure that the selected project is implemented in
a reasonable time following initial recovery of partial funding.

Subpart F--Restoration Implementation Phase

I. Introduction

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

II. Administrative Record

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

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

III. Presenting a Demand for Damages to the Responsible Parties

If the trustees and responsible parties have successfully
implemented cooperative restoration planning, the responsible parties
will have thorough knowledge of the trustees' preferred restoration
alternative(s) and associated costs. In the best circumstances, the
responsible parties will already have entered into an enforceable
agreement to either pay assessment costs and the costs associated with
implementing the Final Restoration Plan, or to implement the Plan
according to trustee performance criteria and with trustee oversight
and reimburse trustees for assessment and oversight costs. Any such
existing agreements with the responsible parties should be described in
the Draft and Final Restoration Plans.
However, where such an agreement with responsible parties has not
been achieved, the trustees must follow some specific statutory
requirements to recover natural resource damages, as described below.
After completion of restoration planning under subpart E of the
rule, the trustees must present a demand in writing asking the
responsible parties either to:
(i) Implement the Final Restoration Plan or component of a Regional
Restoration Plan or existing restoration project, subject to trustee
oversight, and reimburse the trustees for their assessment and
oversight costs; or
(ii) Advance to the trustees a specified sum representing
assessment costs and the trustees' estimate of all direct and indirect
costs associated with developing and implementing the Final Restoration
Plan or some component of a Regional Restoration Plan or an existing
restoration project, discounted as provided in Sec. 990.63 of the rule.
When the trustees use a Regional Restoration Plan, as provided in
Sec. 990.56 of the rule, the demand will invite the responsible parties
to implement a component of a Regional Restoration Plan or existing
restoration project or advance the trustees' estimate of damages based
on the scale of the restoration determined to be appropriate for the
incident of concern. To avoid litigation, the responsible parties must
respond within ninety (90) calendar days in writing by paying or
providing binding assurance they will reimburse trustees' assessment
costs and implement the plan or pay assessment costs and the trustees'
estimate of the costs of implementation.
The demand must also include: identification of the incident from
which the claim arises; identification of the trustees asserting the
claim and a statement of the statutory basis for their trusteeship; a
brief description of the injuries for which the claim is being brought;
the index to the administrative record; the Final Restoration Plan or
Notice of Intent to Use a Regional Restoration Plan or Existing
Restoration Project; and a request for reimbursement of reasonable
assessment costs, as defined in Sec. 990.30 of the rule and discounted
as provided in Sec. 990.63(b) of the rule; the cost, if any, of
conducting emergency restoration under Sec. 990.26 of the rule,
discounted as provided in Sec. 990.63(b) of the rule; and interest on
the amounts recoverable, as provided in section 1005 of OPA (33 U.S.C.
2705), which allows for prejudgment and post-judgment interest to be
paid at a commercial paper rate, starting from thirty (30) calendar
days from the date a demand is presented until the date the claim is
paid.

IV. Discounting and Compounding Components of the Claim

A. General
Discounting is necessary for the trustees to be able to present a
claim for a ``sum certain,'' as required by section 1001(3) of OPA (33
U.S.C. 2701(3)). The reference date for the discounting calculations is
the date at which the demand is presented. Trustees must discount
future restoration costs back to the present and compound assessment
and emergency restoration costs already incurred forward to the
present. The use of discounting in scaling restoration actions is
discussed separately in subpart E of the rule.
NOAA recommends that trustees use the U.S. Treasury borrowing rate
on marketable securities of comparable maturity to the period of
analysis for both calculations, with some qualifications noted below.
Alternatively, for state or tribal claims for past damage assessment
and restoration costs, the state or Indian tribe may use the state or
tribal borrowing rate on marketable securities. The analysis should be
conducted either in terms of nominal values (denominated in dollars of
the year in which the losses or gains are incurred) or in constant
dollars of a specified base year. For compounding past emergency
restoration and assessment costs, trustees should use U.S. Treasury
rate as the discount rate and represent the costs in nominal terms,
since the nominal interest is observed and past costs are likely to be
denominated in nominal terms. Anticipated inflation can be incorporated
in estimates of future restoration costs with an appropriate inflation
index.
B. Estimated Future Restoration Costs
Most restoration actions will be carried out over a period of
years. If funds are insufficient to cover the full costs of
restoration, including post-implementation maintenance and monitoring
operations, natural resource and service recovery will be incomplete,
and the public will be deprived of full compensation for the injuries.
NOAA recommends that, for discounting future restoration costs,
trustees specify future restoration costs in nominal terms (i.e., in
terms of dollars of the year in which the costs will be incurred) and
then discount the nominal costs using the nominal U.S. Treasury rate
for marketable securities of comparable maturity to the period of
analysis, when this rate of return is available to the trustees for
investment of settlement monies. To specify the future restoration
costs in nominal terms, the trustees should employ the indices of
projected inflation appropriate to the major components of the
restoration costs (e.g., construction price indices for construction
costs; the federal employee wage index for t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-31577. Public record. Not legal advice.